By the Book: Eligibility For Asylum

By the Book: Eligibility For Asylum

Previous postings have clarified the procedural differences between refugees and asylum seekers.

Refugees are screened outside the United States before being formally recognized as a refugee, and any alien who is already inside the United States can apply for asylum.

The origins of refugee status and asylum status have also been explored. U.S. law regarding refugees and asylum seekers is grounded on the United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol which was signed by 146 countries.

Both refugees and asylum seekers must meet the same criteria found in the definition of refugee.

The last posting ended with a question: What specific criterion must be proven to qualify for asylum under United States law? Extensive bodies of case law have developed from each separate element of proof. 

Let’s begin with the definition of refugee.

An applicant for asylum in the United States must qualify as a refugee within the meaning of section 101(a)(42)(A) of the Act. INS v. Stevic, 467 U.S. 407 (1984). The operative language of section 101(a)(42)(A) of the Act is as follows:

The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, . . .

An applicant can establish persecution by showing that he or she has been punished or harmed for one or more of the five statutory grounds in the definition of refugee quoted above. See 8 C.F.R. § 1208.13(b)(1).

An applicant can establish a well-founded fear of persecution by showing that a reasonable person would fear future persecution upon return to his or her native country or country of residence. Matter of Mogharrabi, 19 I&N Dec. 439, at 445 (BIA 1987).

A reasonable fear of persecution is not only a subjective fear. In addition, an applicant must establish that:

1) the applicant possesses a belief or characteristic connected to one of the 5 statutory grounds in the definition of refugee;

2) the applicant has been targeted for punishment or harm based on that belief or characteristic or falls within a group subjected to a pattern or practice of punishment or harm based on that belief or characteristic;

3) the persecutor is aware or could become aware that the applicant possesses that belief or characteristic or is a member of a group defined by that belief or characteristic;

4) the persecutor has the capability to punish or harm the applicant;

5) the persecutor has the inclination to punish or harm the applicant; and

6) internal relocation to avoid the risk of persecution is not reasonable.

See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), as modified by Matter of Mogharrabi, supra.; See 8 C.F.R. § 1208.13(b)(2).

The next posting will explore the level of punishment or harm required for classification as persecution. 

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