ASYLUM AND WITHHOLDING OF
IV. Standard for
V. Overview of Asylum
This article presents an overview of the legal standard and filing
procedure for application for asylum and withholding of removal. The government
has proposed regulations that would change the showings necessary for past
persecution and country-wide persecution. As of this writing these regulations
are not final, but practitioners should check on their status in the
INA § 101(a)(42)(A), 8 USC § 1101(a)(42)(A)
This section defines the term
2. INA § 208,8 USC § 1158
section presents the authority to apply for asylum, time limits for filing, and
other bars to asylum. It also discusses the grant and termination of asylum
status, employment authorization, the consequences of filing a frivolous
application, and procedures for filing an application.
3. INA § 235(b)(I), 8
USC § 1225(b)(I)
section discusses the procedures for expedited removal of asylum-.seekers
arriving at ports of
entry with false documents or no documents who must show
a credible fear or persecution.
4. INA §
241(b)(3), 8 USC § 1231(b)(3)
This section presents the authority of the
Attorney General to withhold removal for people whose life or freedom would be
threatened under certain circumstances.
Section 8 CFR § 208 discusses both the
legal standards and procedures for applying for asylum.
C. International Law
The primary international treaties
protecting the rights of refugees are the 1951 United Nations Convention
relating to the Status of Refugees and the 1967 United Nations Protocol relating
to the Status of Refugees. The United States is a signatory to the UN Protocol,
which incorporated Articles 2 through 34 of the UN Convention.
Convention Against Torture also offers protection to people facing torture if
returned to their countries. Under Article 3 of the Torture Convention the
United States has agreed not to return a person to a country where he or she
could be tortured. The INS and EOIR published interim regulations establishing a
procedure for Torture Convention claims, which can be raised on INS Form I -589
, which is the application for asylum and withholding of removal.
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III. KEY CONSIDERATIONS
A. Definition of Refugee
Immigration and Nationality Act establishes a procedure for applying for asylun1
in the United States. A person is eligible for a discretionary grant of asylum
if he or she has suffered past persecution or has a "well-founded fear of
persecution" on account of race, religion, nationality, membership in a
particular social group or political opinion:
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 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.
adopting the Refugee Act of 1980, Congress intended to conform United States
refugee and asylum law with the UN Convention and Protocol.
In 1996, Congress
expanded the definition of refugee to state specifically that a person who has
undergone or fears a "coercive population control program" (such as forced
abortion or sterilization) has shown past persecution or a well-founded fear of
persecution on account of political opinion.
significant new requirement, effective April 1, 1997, is that an asylum seeker
must file for asylum within one year of arrival in the United States. This
requirement is discussed in more detail below.
B. Withholding of Removal
The law prohibits the
deportation or removal of anyone whose life or freedom would be threatened in
his or her home country on account of one of the same five grounds necessary for
asylum. The INA provides as follows:
Attorney General may not remove an alien to a country if the Attorney General
decides that the alien's life or freedom would be threatened in that country
because of the individual's race, religion, nationality, membership in a
particular social group, or political opinion.
provision applies to proceedings that began after April 1, 1997. It is
substantially similar to INA § 243(h) for withholding of deportation,
prohibiting the INS from deporting anyone whose "life or freedom would be
threatened" due to one of the same five grounds applicable to asylum
one-year deadline for applying for asylum does not apply to applications for
withholding of removal. Thus, even more than one year after arrival, a person
whose life or freedom is in danger could still file for withholding of
Withholding of removal implements Article 33 of the UN Convention
providing for non-refoulement to a country where a person's life or freedom
would be threatened. Withholding of deportation or removal requires that
persecution be more likely than not. For withholding of deportation or removal,
a person must show a "clear probability of persecution," which is more than a
50% likelihood of persecution.
"clear probability" standard for withholding of removal is higher than the
standard for asylum, which requires only a "reasonable possibility" of
persecution. If an applicant meets the higher standard, withholding of
deportation or removal is mandatory , compared to asylum, which is discretionary
.There are several bars to withholding of removal. These include:
persecution of others;
being a danger to the community after having been convicted of a particularly
serious reasons to believe the person has committed a serious nonpolitical
crime outside the United States; and
reasonable grounds to believe the person is a danger to the security of the'
United States. A person convicted of an aggravated felony ( or felonies) for
which he or she received an aggregate sentence of at least 5 years'
imprisonment is considered to have committed a particularly serious crime. For
further discussion of particularly serious crimes, see discussion below. A
person engaged in terrorist activity as described in INA § 237(a)(4)(B) is
deemed to be a danger to the security of the United
applying for asylum does not need to file a separate application for withholding
of deportation or removal since an application for asylum automatically
constitutes an application for withholding of deportation or removal.
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IV. STANDARD FOR ASYLUM
Definition of Persecution
Persecution encompasses a broad range of acts. It includes the infliction
of harm or suffering by a government, or persons a government is unwilling or
unable to control, to overcome a characteristic of the victim. Serious
violations of basic human rights constitute persecution. For example, detention
coupled with physical torture constitutes persecution. So does rape. The
definition of persecution does not, however, require a subjective intent to
punish or harm the victim. Persecution may also include severe economic
deprivation threatening an individual's life or freedom, or cumulative forms of
discrimination or harassment rising to the level of persecution. Persecution
does not, however, include legitimate prosecution. Although fear of civil strife
is not a basis for asylum, harm inflicted during the course of civil strife may
persecutor may be either the government or a group or individual that the
government is unable or unwilling to control.
B. Country Wide Threat
While the Act does not explicitly
require a showing of country-wide persecution, the Board of Immigration Appeals
(BIA or Board) requires that an applicant show that the risk of persecution
exists country-wide unless it would be unreasonable to relocate to another part
of the country. The Ninth Circuit has held, however, that country-wide danger
exists in any case in which the persecutor is a governmental agent. In that
case, the court stated: "It has never been thought that there are safe places
within a nation when it is the nation's government that has engaged in the acts
of punishing opinion that have driven the victim to leave the country." The
Ninth Circuit has also held that "there is no burden on the applicant to show
that his past experience reflected conditions nationwide. "The Fifth
Circuit has held along similar lines.
to address whether a threat exists country-wide include consideration of the
intent or ability of the persecutor to act nationwide. In addition, it is
relevant to consider the size of the country , which might make it impossible to
be safe anywhere.
The government has issued proposed asylum regulations on internal relocation
that would require an applicant to show country-wide harm. There are no final
rules in effect yet. See 63 Fed. Reg. 31945 (June 11, 1998)
C. Past Persecution
showing of past persecution, a person has met the definition of a "refugee" and
is eligible for a discretionary grant of asylum. Once a showing of past
persecution establishes eligibility for asylum, a showing of a well-founded fear
of future persecution is relevant to the exercise of discretion to grant asylum
under the asylum regulations. The regulations state, however, that a showing of
past persecution creates a presumption that the applicant has a well-founded
fear of future persecution. The burden then shifts to the INS to show by "a
preponderance of the evidence" that conditions in the home country "have changed
to such an extent that the applicant no longer has a well-founded fear of being
with this showing of changed conditions, the applicant may still receive a grant
of asylum if he or she "has demonstrated compelling reasons for being unwilling
to return to his country of nationality or last habitual residence arising out
of the severity of the past persecution." Using a somewhat similar analysis, the
Board in Matter of Chen, granted asylum for humanitarian reasons to a man who
with his family suffered relocation and harsh treatment during the Cultural
Revolution in China but after the Cultural Revolution was allowed to return to
the city where he previously lived and was under no continuing threat of
persecution anywhere in the country .Similarly, the Board granted asylum to an
Afghani supporter of the Mujahidin who had been tortured for three months and
then imprisoned for ten more months in deplorable conditions under the Communist
regime, even though conditions had now changed and the Mujahidin had deposed the
Communists and set up its own government. Many courts, however, require past
persecution to be extremely severe before granting asylum in these
The government has issued proposed regulations that would make winning asylum
more difficult than before for people who have suffered past persecution. As of
this time, there are no final rules in effect. See 63 Fed. Reg. 31945 (June 11,
First Circuit holds that although the adjudicator may take official or
administrative notice of changed country conditions, she must provide the
asylum-seeker with notice and an opportunity to respond.
D. Well-Founded Fear of Persecution
If a person has not
suffered past persecution, he or she is still eligible for asylum based on a
fear of future persecution. There is both an objective and subjective component
to a well-founded fear of persecution: a person must have a subjectively genuine
fear and the fear must be objectively reasonable. This means that a person must
express a subjective fear of returning. It also means that there must be an
objective basis for that fear. Documentation and expert testimony on conditions
in the country , including human rights violations and harm to people similarly
situated to the applicant, are essential to this showing.
Elements of proof in an asylum claim are that the applicant has "a
belief or characteristic a persecutor seeks to overcome in others by means of
punishment;" "the persecutor is already aware, or could become aware," of that
belief or characteristic; and the persecutor has the "capability" and the
"inclination" to punish the applicant.
establish a well-founded fear of persecution, an applicant need only show that
persecution is a "reasonable possibility ." Persecution need not be a certainty.
The asylum regulations are explicit that an applicant has a well- founded fear
of persecution if "there is a reasonable possibility of actually suffering such
persecution." In certain circumstances that means that someone with only a "one
in ten" chance of persecution may be eligible for asylum. In addition, a person
need not be "singled out" for persecution if there is a "pattern or practice.
..of persecution of groups of persons similarly situated to the applicant." A
person may also receive a grant of asylum if he or she suffered past
E. Persecution on Account of One of the Five Statutory
1. "On Account of" Standard
The feared persecution
must be "on account of' one of the five bases in the statute: race, religion,
nationality, membership in a particular social group or political opinion. The
phrase "on account of' has received specific attention in judicial decisions.
For example, even if a person fears being tortured if returned, the torture must
be "on account of' one of these five bases, and not on account of another
reason, such as criminal prosecution or personal disputes. The Board has
recognized, however, that persecutors may have mixed motivations for persecution
and has required an applicant only to submit evidence from which it is
reasonable to believe that the harm was motivated, at least in part, by one of
the five bases. An applicant may provide direct or circumstantial evidence of
such motivation. However, the Board has interpreted the "on account of' standard
harshly to deny asylum. Numerous federal courts have looked broadly at the
circumstances surrounding the persecution to find that it was "on account of'
one of the grounds in the Act.
2. Political Opinion
Political opinion may
be the actual political opinion that a person holds or the political opinion
imputed to that person by the persecutor, whether or not the person holds that
political opinion. For example, harm to family members may establish a claim to
asylum where the applicant fears that the persecutor would seek to harm him
based on his association with his family and the opinion imputed to him from his
3. Membership in a Particular Social Group
is defined as a group which shares "a common, immutable characteristic." Courts
have recognized the family as a social group upon which a fear of persecution
may be based. Thus, if a person is a member of a family that has been
persecuted, he may be able to raise an asylum claim on that basis.
developing area of the law is recognition of persecution or severe
discrimination of women on the basis of gender. In May 1995, the INS issued
guidelines that recognize and assist adjudication of gender-based asylum claims.
The Board granted asylum to a woman fearing female genital mutilation (FGM) if
returned to Togo, holding that FGM constitutes persecution and that she was a
member of a group of young women of her particular tribe who had not had FGM and
opposed it. The Board also granted asylum to a Haitian activist whom soldiers "
gang raped for her support of President Aristide after the military coup. Some ,
Courts have recognized a social group of women who fear persecution based on
membership in a group that refuses to conform to Islamic norms of
These developments have led some judges to grant asylum to women
who have suffered domestic violence. An immigration judge recognized a social
group of "women who espouse Western values and who are unwilling to live their
lives at the mercy of their husbands, their society , their government," and
accordingly granted asylum to a Jordanian woman abused by her husband for three
Also gaining recognition in asylum law is persecution on account of
Persecution on account of religion is
another basis for asylum. For example, persecution experienced or feared due to
Jewish heritage constitutes a claim based on religion.
Another basis for asylum is nationality, which includes not just
citizenship, but membership in a linguistic or ethnic group, and may overlap
with race. It also may overlap with religion, as in the case of Jewish
Persecution on account of race is also a basis for
asylum. This basis may, as well, overlap with other bases.
F. Mandatory Grounds for Denial or Inadmissibility
Persecutor of Others
A person who has assisted in the persecution of others
cannot meet the definition of a refugee.
2. Conviction of a Particularly
The Attorney General may not grant asylum if the person,
"having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of the United States." Most courts hold
that there is no need for a separate determination of dangerousness to the
community if a person is convicted of a particularly serious crime. In most
cases the determination of what is a particularly serious crime requires an
examination of the underlying factors.
convicted of an aggravated felony is automatically considered to be convicted of
a particularly serious crime. The definition of aggravated felony includes
murder, rape, sexual abuse of a minor, drug trafficking, explosives or firearms
trafficking, money laundering, a theft or burglary offense with a term of
imprisonment of at least one year, a crime of violence with a sentence of at
least one year, and numerous other crimes. Thus, for example, possession with
intent to distribute a controlled substance, such as cocaine, is considered an
aggravated felony because it involves drug trafficking.
The term "aggravated
felony" encompasses numerous other crimes, including but not limited to:
trafficking in false documents; racketeering for which a sentence of at least
one year may be imposed; alien smuggling; engaging in the business of
prostitution or slavery; spying; child pornography; fraud or tax fraud where the
loss exceeded $10,000; commercial bribery , counterfeiting or forgery with a
sentence of at least one year; not showing up for prison if the underlying
offense is punishable by at least five years; and not showing up for a felony
charge punishable by at least two years. The actual definition contains
additional crimes and should be consulted. Attempt or conspiracy to commit such
acts are also included, as are offenses under state, federal or foreign law.
Since these provisions have various time limits on sentencing and dollar
amounts, it is important to research the conviction to see if it actually is an
person with an aggravated felony conviction may still apply for withholding of
deportation unless sentenced to an aggregate term of at least five years'
imprisonment. Otherwise, conviction of an aggravated felony constitutes a
particularly serious crime, which bars a grant of withholding of removal. There
is a narrow exception for people who were in proceedings prior to April 1, 1997.
The Attorney General may withhold deportation of a person even if convicted of a
particularly serious crime "to ensure compliance with the 1967 United Nations
Protocol Relating to the Status of Refugees."
There is another possibility for people with criminal bars to asylum and
withholding of removal --the Convention Against Torture. Article 3 of the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment prohibits deporting a person "where there are
substantial grounds for believing that he would be in danger of being subjected
to torture." The INS and EOIR have published interim rules on raising a Torture
Convention Claim. See 64 Fed. Reg. 8477 (effective March 22, 1999).
may not receive a grant of asylum if he or she was firmly resettled in another
country. The regulations define "firm resettlement" to include "an offer of
permanent resident status, citizenship, or some other type of permanent
resettlement" under certain conditions explained at 8 CFR § 208.15. Firm
resettlement is not, however, a bar to withholding of removal.
Similarly, a person may not receive a grant of asylum if there
are "reasonable grounds" for regarding him or her as a "danger to the security
of the United States.
5. Serious Non-Political Crime
Another bar to asylum
is "serious reasons for believing that the alien has committed a serious
nonpolitical crime outside the United States" prior to arrival.
Another mandatory bar is against people inadmissible or
removable for terrorist activity unless the Attorney General determines "that
there are not reasonable grounds for regarding the alien as a danger to the
security of the United States." This ground is extremely broad and may possibly
apply to any activity supporting a terrorist organization although the
interpretation of terrorism should be limited to violent acts against
7. Safe Third Country
The act also bars a person from
applying for asylum if the asylum seeker "may be removed, pursuant to a
bilateral or multilateral agreement, to country ...in which the alien's life or
freedom would not be threatened" on account of one of the five grounds and where
the person "would have access to a full and fair procedure for determining a
claim to asylum or equivalent temporary protection." Implementing this provision
requires a treaty or agreement with each country to which the United States
would attempt to remove people who are not citizens of that country .The United
States does not currently have any treaties to that effect with any other
8. Previous Asylum Application
The act also prevents a person
from applying for asylum if he or she previously applied for asylum and was
denied. There are two exceptions: (1) "changed circumstances which materially
affect" an applicant's eligibility for asylum; and (2) "extraordinary
circumstances relating to the delay in filing an application within the period
G. Discretionary Denials
Granting asylum is
discretionary even after a person has shown past persecution or a well- founded
fear of persecution. The adjudicator may consider other factors in making the
discretionary decision to grant asylum, such as an applicant's use of fraud to
enter, criminal record, and good moral character.
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V. OVERVIEW OF ASYLUM PROCESS
A. One- Year Filing Deadline
An asylum seeker must file
an application for asylum within one year of arrival in the United States. This
provision became effective on April , 1997. There are only two limited
exceptions to this rule: (1) "changed circumstances which materially affect" an
applicant's eligibility for asylum; and (2) "extraordinary circumstances
relating to the delay in filing an application within the period specified." The
regulations provide examples of such circumstances.
B. Penalty for Frivolous Application
A non-citizen who
knowingly makes a frivolous application for asylum, after receiving notice of
the consequences of doing so, is "permanently ineligible for any benefits under
the [immigration law]."
C. Expedited Removal
People arriving at airports and
other ports of entry with false documents or no documents face expedited removal
from the U. S .An INS inspector interviews these people upon arrival and removes
them unless they "indicate either an intention to apply for asylum under section
208 or a fear of persecution." If they indicate a desire to apply for asylum,
the INS refers them to an INS asylum officer for an interview . At that
interview, they must show a "credible fear of persecution." If they do not do
so, INS may order them removed from the United States without further hearing.
An immigration judge within seven days may review an INS decision that the
person lacks a credible fear. The Attorney General may also apply these
procedures to people who have not been admitted or paroled unless they have been
continuously physically present in the United States for the previous two years.
There is an exception to expedited removal for citizens of a Western Hemisphere
country with whom the United States does not have full diplomatic relations who
arrive by aircraft at a port of entry (i.e., Cubans).
"credible fear" means that "there is a significant possibility , taking into
account the credibility of the statements made by the alien in support of the
alien's claim and such other facts as are known to the officer, that the alien
could establish eligibility for asylum under section 208."
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