A person who has been persecuted or has a well-founded fear of being persecuted in his or her home country on account of race, social group, religion, nationality, or political views may qualify for refugee or asylum status.  A person who can prove that it is more likely than not that they will be persecuted if returned to their home country may qualfy for withholding of removal.

A comprehensive resource on the rules governing asylum law in the Western United States is the Ninth Circuit Court of Appeals' Asylum Handbook, Asylum Precedent in the Ninth Circuit.

The definition of refugee and asylee is the same except for the location of the person applying. A person granted protective status who is outside of the United States is considered a refugee, while a person granted the same protective status from within the United States is considered an asylee. And the last of these remedies, withholding of removal, precludes the United States from returning a person to his or her home country, but does not preclude removal to a third country willing to accept that person.

The 1967 United Nations Convention and Protocol Relating to the Status of Refugees is the basis of United States asylum and refugee law. Although the United States signed this treaty, many United States courts have held that it is not self-executing and does not itself confer rights. Rather, the treaty provides only guidelines for implementing domestic laws. But the Immigration and Nationality Act borrowed the definition of refugee from the 1967 treaty:

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 unwilling or unable 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.

The specific United States rules governing refugees and asylees are found in case law. The Immigration and Nationality Act provides some rules governing the grant of relief from persecution, but it provides only general rules and does not list the specific requirements for receiving one of these available remedies.

Asylum And Refugee Status

Persons seeking asylum must show either that they suffered past persecution in their home country or that they have a well-founded fear of suffering future persecution should they be returned to their home country. The persecution must be based on at least one of five grounds:

1. Race
2. Religion
3. Nationality
4. Social Group
5. Political Views

It does not matter whether the person or group inflicting persecution harbors a subjective punitive or malignant intent. Even if the persecutor believes he or she is genuinely helping the victim, but nonetheless inflicts harm, that harm may well be persecution.

Persecution

Persecution is the infliction of suffering or harm upon those who differ in a way that is regarded as offensive. Whether a type of harm is persecution turns on what a reasonable person would deem offensive. This part of the analysis is objective. Even if a person feels persecuted, the acts giving rise to that perception will not be deemed persecution unless the applicant shows that a reasonable person would feel the same way under similar circumstances.

The types of suffering or harm that constitute persecution differ by case. But every instance of suffering or harm inflicted on an individual bears cumulatively on the determination of persecution. Some types of suffering or harm courts have recognized include:

• Torture
• Physical abuse if it is sufficiently severe
• Threats to life or freedom
• Deliberate imposition of substantial economic disadvantage
• Involuntary sterilization
• Arbitrary interference with a person's privacy, family, home or correspondence
• Relegation to substandard dwellings
• Exclusion from institutions of higher learning
• Enforced social or civil inactivity
• Denial of a passport
• Constant surveillance
• Pressure to become an informant

Any of these types of suffering or harm are particularly likely to constitute persecution if they are repeated and persistent. But to constitute a valid claim for asylum, the suffering or harm that rises to the level of persecution still must be based on one of the five enumerated grounds and be inflicted by government actors or actors the government is unwilling or unable to control.

Threats to life or freedom always constitute persecution and include:

• Genocide
• Slavery or slave trade
• Killing of individuals, other than as lawful punishment upon conviction in accordance with due process
• Torture and other cruel or inhumane treatment; and
• Prolonged detention without notice of and an opportunity to contest the grounds for the detention

Some types of suffering or harm may only rise to the level of harassment and not constitute persecution. Courts have held that brief periods of confinement unaccompanied by physical mistreatment are not considered a threat to freedom or persecution.

Prosecution also does not usually constitute persecution when it is not based on one of the five enumerated grounds. And prosecution for refusal to comply with compulsory military service will generally not constitute persecution. But some types of prosecution may constitute persecution. These include any prosecution based on one of the five enumerated grounds and any punishment imposed without judicial process.

Additionally, any punishment excessive with respect to the accepted norms of civilized society, or any punishment that violates internationally-accepted norms, or is disproportionate to the crime alleged, may constitute persecution. Punishment actually imposed that is based on one of the five enumerated grounds, but that the government alleges is based on the alleged crime, may be persecution.

Persecutory conduct may have more than one motive, and so long as one motive is based on one of the statutorily enumerated grounds, it satisfies the requirements for asylum. The alien must only demonstrate a reasonable possibility that one of the persecutor's motivations is related to an enumerated ground.

Membership in a Particular Social Group

Persecution on account of membership in a particular social group” within the meaning of the INA to mean “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic[,] . . . one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).

In addition to “immutability,” the Board requires that a particular social group have: “(1) social visibility, meaning that members possess characteristics . . . visible and recognizable by others in the native country, . . . (2) be defined with sufficient particularity to avoid indeterminacy, . . . and (3) not be defined exclusively by the fact that its members have been targeted for persecution[.]”  Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009).

The BIA appears to have borrowed the concept of social visibility from the United Nations Commissioner for Refugees (UNHCR).  UNHCR used the concept as an alternative method of analysis of social groups, but the BIA made it a requirement for defining a social group.

Although the social visibility criterion was supposed to serve as an objective test to prevent the ad hoc concocting of social groups, many immigraiton judges and attorneys have interpreted it quite literally as a question of whether a social group's members may be identified by a visual characteristic.

Courts have repeatedly held that former gang members and also persons fleeing gang recruitment do not qualify as members of a particular social group because particularity requires societal recognition of the group as discrete, that is to say as a socially visible group.  Matter of S-E-G, 24 I.&N. Dec. 579 (BIA 2008). 

In S-E-G- two teenage brothers in El Salvador refused to join the MS-13 gang after being propositioned, then beaten and threatened by MS-13 gang members.  The gang threatened to rape the brothers’ sister if they did not join.  The brothers believed that the police would not help and might retaliate in response to a complaint because of the gang's immense power.  After MS-13 gang members killed another boy in the neighborhood for refusing to join, the boys fled to the United States.

The BIA found that being "politically" against gangs or openly critizing gangs is not a political opinion and “Salvadoran youth who have been subjected to recruitment efforts by MS-13 and who have rejected or resisted membership in the gang based on their own personal, moral and religious opposition to the gang’s values and activities” does not constitute a particular social group.

Some lawyers still bring these cases even though the law is clearly settled for now that this is not a claim that courts recognize.

Ninth Circuit case law is fairly clear that a young man of gang membership age who refuses to join a gang is not a cognizable social group. Velasco-Cervantes v. Holder, 593 F.3d 975, 978–79 (9th Cir. 2010) (holding that a proposed group consisting of material witnesses for the government cannot be defined with sufficient particularity because any person of any origin can be involuntarily placed in that role); Soriano, 569 F.3d at 1166 (holding that government informants do not qualify as a social group); Santos-Lemus v. Mukasey, 542 F.3d 738, 746 (9th Cir. 2008) (concluding that young men in El Salvador resisting gang violence do not qualify as a particular social group).

In Santos-Lemus v. Mukasey, the court said,

Santos-Lemus also asserts eligibility for asylum and withholding of removal based on his membership in the group of “young [men] in El Salvador resisting gang violence.”   We have defined “social group” for purposes of asylum, as any group “united by 1) a voluntary association which imparts some common characteristic that is fundamental to the members' identities, or 2) an innate characteristic which is so fundamental to the identities or consciences of its members they either cannot or should not be required to change it.”  Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.2007).   In determining whether a social group exists, we consider certain factors, including “whether a group's shared characteristic gives members social visibility and whether the group can be defined with sufficient particularity to delimit its membership.”  Id. at 944-45(citing In re A-M-E, 24 I. & N. Dec. 69, 74-76 (B.I.A.2007)).

The Board first held that the proposed social group did not meet the particularity requirement.   It explained that “the essence of the ‘particularity’ requirement ․ is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.”  Matter of S-E-G-, 24 I. & N. Dec. at 584.   The Board then held that the social groups in that case lacked particularity because “[t]hey make up a potentially large and diffuse segment of society, and the motivation of gang members in recruiting and targeting young males could arise from motivations quite apart from any perception that the males in question were members of a class.”  Id. at 585.

This analysis is consistent with our case law on similar issues.   In Sanchez-Trujillo v. INS, we held that a purported social group of “young, working class males who have not served in the military of El Salvador” was too “all-encompassing [a] grouping” to constitute “that type of cohesive, homogeneous group to which we believe the term ‘particular social group’ was intended to apply.”  801 F.2d 1571, 1572, 1577 (9th Cir.1986).  “Individuals falling within the parameters of this sweeping demographic division naturally manifest a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings.”  Id. at 1577.

We later relied on that reasoning in Ochoa to reject the claim that “a social group comprised of business owners in Colombia who rejected demands by narco-traffickers to participate in illegal activity” was a particular social group because the group was not sufficiently narrowly defined.  406 F.3d at 1170.   We reasoned that “[t]here is no unifying relationship or characteristic to narrow this diverse and disconnected group.   This category is too broad to qualify as a particularized social group for the purposes of asylum and withholding of removal.”  Id. at 1171.

Based on the Board's decision in Matter of S-E-G- and our relevant case law, we hold that the group that Santos-Lemus describes, young men in El Salvador resisting gang violence, is too loosely defined to meet the requirement for particularity.   In fact, Santos-Lemus's group is even less defined than the purported social group in Matter of S-E-G- because it is not limited to young men who have been recruited by gangs, but also includes any young men who for any reason resist gang violence and intimidation.   This purported group is composed of a variety of different individuals who may be victims of civil unrest, but who do not form a cohesive or particular social group.   As in Sanchez-Trujillo and Ochoa, Santos-Lemus's proposed group includes a sweeping demographic division;  it is too broad and diverse to qualify as a particular social group.

Burden of proof

The initial burden of proof is on the applicant to show persecution or a well-founded fear of persecution. Then, this burden shifts to the government and if the government shows that there is little likelihood of future persecution, then the burden shifts back to the applicant to show a likelihood of future persecution. Department of Homeland Security rules provide that where an applicant suffered persecution such that his life or freedom was threatened, it is presumed that his life or freedom would be threatened upon return to his country of origin. And that presumption can only be rebutted by evidence establishing that conditions in the country have changed to such an extent that it is no longer more likely than not that the applicant would be persecuted there.

If the applicant establishes past persecution, he is presumed to have a well-founded fear of persecution. Where an applicant suffered persecution in the past such that the applicant's life or freedom was threatened, it is presumed that the applicant's life or freedom would be threatened upon return to that country. But even if past persecution was not so extreme as to threaten the applicant's life or freedom, it may nevertheless qualify as persecution.

If the Department of Homeland Security successfully rebuts the presumption of a well-founded fear of persecution with evidence of changed country conditions, the application may be denied unless the applicant demonstrates compelling reasons for being unwilling to return to his country which arise out of the severity of the past persecution. Absent a likelihood of future persecution, asylum is warranted only if the applicant demonstrates that in the past he or his family suffered atrocious past persecution.

Credible Evidence After the 2005 REAL ID Act

The 2005 Real ID Act contained provisions specifically targeting the Ninth Circuit Court of Appeals' precedent decisions.  The REAL ID Act instituted more strict evidentiary requirements, but these have only modestly affected the standard.

An asylum officer or immigration judge may grant asylum based on the applicant's testimony alone, but only where the testimony “is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee."

An asylum officer or immigration judge may require other evidence to corroborate otherwise credible testimony “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”

And in determining whether the applicant has met her burden of proof, the trier of fact may weigh credible testimony along with other evidence of record.

The One Year Filing Deadline

Applicants must file within one year of arrival in the United States.  Applicants who file after the one year deadline must establish that they filed within a reasonable period after changed circumstances 8 CFR 1208.4(a)(4) or extraordinary circumstances 8 CFR 1208.4(a)(5).  A reasonable period is not necessarily one year.  These exceptions do not extend the time to file to one year after the date of the changed or extraordinary circumstance.  The rule requires the applicant to file within a "reasonable time" after the changed or extraordinary circumstance.  8 CFR 1208.4(a)(4)(ii).

Changed circumstances include but are not limited to changes in country conditions or changes in the applicant's circumstances that materially affect the applicant's eligibility for asylum.

Under 8 CFR 1208.4(a)(5), extraordinary circumstances include, but are not limited to:

(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;

(ii) Legal disability ( e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;

(iii) Ineffective assistance of counsel, provided that:

(A) The alien files an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;

(B) The counsel whose integrity or competence is being impugned has been informed of the allegations leveled against him or her and given an opportunity to respond; and

(C) The alien indicates whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not;

(iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

(v) The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and

(vi) The death or serious illness or incapacity of the applicant's legal representative or a member of the applicant's immediate family.

The applicant must also show that he did not intentionally create the extraordinary circumstances by her own action or inaction. and that any delay was reasonable.  8 CFR 1208.4(a)(5).

What is reasonable varies by case, but applicants should use caution to file as early as possible to avoid potential problems.

Asylum applicants who are already in removal proceedings for other reasons face special challenges.  Unlike most applications for relief in Immigration Court, asylum applicants may only file an asylum application during an in person hearing.  Immigration Court Practice Manual, Ch. 3.1(b)(iii)(A).  If the court sets the next master calendar hearing many months in the future, the asylum applicant faces two problems: (1) he cannot start the 150 day clock to enable him to apply for work authorization, and (2) he risks missing the one year filing deadline.

A USCIS settlement from 2011 resulted in the Immigration Court observing that a properly lodged asylum application both (1) starts the 150 day clock, and (2) tolls the one year filing deadline.  EOIR Operating Policies and Procedures Memorandum (OPPM), 13-03, ABT v. US Citizenship and Immigration Services, Case No. 11-02108 (W.D. Wash. 2011) at p. 4.

An improper attempt to lodge an asylum application may cause USCIS to rejecent it - a potential disaster if there is little time remaining on the one year deadline.  The Immigration Court may reject an effort to lodge an asylum application if it is not accompanied by a self-addressed stamped envelope, or other return delivery packaging or if the application is not accompanied by a cover page or other large font statement that the form is being submitted for the purpose of lodging.  Immigration Court Practice Manual, Chapter 4.15(L)(i)(b).

Application Procedures

The first step in applying for asylum or refugee status is to complete USCIS Form.  Asylees should complete USCIS Form I-589, Application for Asylum and for Withholding of Removal (Withholding of Removal is a remedy the applicant should apply for simultaneously and is discussed here).  And refugees should complete USCIS Form I-590.  These forms are available at www.uscis.gov.

Applicants for asylum should provide a short description of the reasons they seek asylum or withholding of deportation in Part C. 7. of the form.  But the forms should be accompanied by a detailed declaration recounting the specific instances of persecution the applicant suffered or fears will be suffered if the applicant returns home.  The declaration is the most important part of the application and must be carefully prepared. It should detail the events constituting persecution chronologically.

Applicants should also include all available relevant corroborating evidence. Corroborating evidence is any documented source that supports the applicant's declaration of events. Applicants should include documented evidence after the declaration and should number each as an exhibit and include an index that briefly describes each document. Sources of documentation may include:

• Letters from friends, relatives, coworkers or any other witness to any of the events complained of
• Medical records and letters from physicians who treated the applicant for any instances of physical abuse
• Medical records and letters from doctors who treated the applicant for psychological trauma resulting from instances of persecution
• A birth certificate, passport, driver's license and identification card and other documents that tend to establish the applicant's date and place of birth
• Leases, deeds, utility bills and other documents that tend to corroborate where the applicant lived
• Payroll and tax records that tend to establish where the applicant worked
• Membership records, identification cards and letters from other members of any political or social group that the applicant claims may have been the basis for any persecution suffered
• Airline tickets, hotel invoices and other documents that may corroborate the applicant's course of travel from his or her home country to a third country or the United States

This list is not exhaustive and gives only a general idea of useful types of evidence.  Applicants should not include irrelevant documentation, but they may want to include documents not listed above. Which documents are important and which are not depends on the case.  Applicants who cannot afford an attorney may find a legal clinic in their area willing to represent them at no charge.  But applicants must consider that a poorly drafted and document application may be denied.

After filing the I-589 and declaration, USCIS will schedule an interview with an Asylum Officer who will question the applicant and review the evidence. These interviews may last from 45 minutes to several hours depending on the case and the interviewing officer. The Asylum Officer has the authority to grant an asylum application, but may not deny one. If the Asylum Officer concludes that the applicant did not meet the legal requirements to qualify, she will refer the case the Immigration Court which for a hearing date.

If the Immigration Court denies the application, the order of appeals is to the Board of Immigration Appeals, and then United States Court of Appeals for the Circuit having jurisdiction over the geographical area where the applicant made the petition. If the United States Court of Appeals denies the claim, the United States Supreme Court has the discretion to hear the petition, but is not required to hear it.

Applicants for asylum may not work in the United States while they wait for their interview. However, if an applicant has waited 150 days from the date she filed the application and either the Asylum Office or the Immigration Court has not heard the application, the applicant may be eligible to apply for work authorization by filing USCIS Form I-765.  Asylum applicants eligible for work authorization may renew it until the Immigration Court approves or denies the application.  An applicant is immediately eligible to apply for employment authorization if the Asylum Office or the Immigration Court grants the asylum application.

Withholding Of Removal (Nonrefoulement)

Withholding of Removal (Nonrefoulement in UN treaties) is the remedy that precludes the United States from removing (deporting) a person to the country that persecuted them. While the type of persecution the applicant must show for Nonrefoulement is similar to the showing required for asylum or refugee status, the burden of proof is higher on the applicant seeking to show Nonrefoulement. United States courts imposed this higher proof standard for Nonrefoulement because it is a mandatory remedy, while asylum and refugee status are not. In other words, an applicant for asylum or refugee status may be denied at the discretion of the Asylum Officer or Immigration Court even though the applicant satisfied the standard of proof establishing his or her claim. But neither an Asylum Officer nor an Immigration Court may deny a claim for Nonrefoulement that satisfies the proof requirements.

Applicants for Withholding of Removal must show a threat to life or freedom based on one of the same five grounds required for a showing of asylum, and they must show the same type of government involvement or resignation. But they must show this threat to life or freedom by a clear probability or preponderance.

The application process for Withholding of Removal is the same as that required for Asylum. The applicant should submit INS Form I-589 with a detailed declaration and supporting documentation. Once again, the differences between Withholding of Removal and Asylum are the discretion of granting relief and the burden of proof.

Humanitarian Asylum

Normally, an asylum applicant must prove a well-founded fear of future persecution.  Although proof of past persecution creates a presumption of a well-founded fear of future persecution that the government must ordinarily rebut to prevail, humanitarian asylum does away with the prospective requirement entirely.  For humanitarian asylum, proof of past persecution is the key along with a reasonable possibility that the alien will suffer "other serious harm" but not necessarily related to persecution.

An asylum applicant who has established past persecution but no longer has a well-founded fear of persecution may warrant a discretionary grant of humanitarian asylum ased not only on compelling reasons arising out of the severity of the past persecution, but also on a “reasonable possibility that he or she may suffer other serious harm” upon removal to his or her country.  8 CFR §1208.13(b)(1)(iii)(B)

Petitions For Relatives Based on a Grant of Refugee Status or Asylum

Applicants for asylum or refugee status should include all family members on their application. Family members are eligible for derivative asylum or refugee status if the petitioner is granted asylum or refugee status. But those family members should be listed as family members on the initial application. An asylee or refugee may apply for derivative status for a family member by submitting INS Form I-730 Relative Visa Petition.

Acquiring Permanent Residence

Asylees are eligible to apply to adjust status to Lawful Permanent Residence after one year of physical presence in the United States beginning from the date that asylum was granted. The asylee must apply to USCIS for residence using Form I-485.  Lawful Permanent Residence, once granted, is retroactive to a date one year before the date USCIS granted the application.  8 CFR 209.1(a). This allows the asylee to apply for naturalization earlier than if the actual date Lawful Permanent Residence was granted controlled.

Sources For Reports On Country Conditions and Persecution

Human Rights Documentation Exchange
Post Office Box 2327
Austin, Texas 78768
Tel (512) 476-9841
Fax (512) 476-0130

USCIS Asylum Office Resource Information Center
425 I Street NW, ULLICO Building
Washington, DC 20536

International Gay and Lesbian Human Rights Commission
80 Maiden Lane, Suite 1505
New York, NY 10038
Tel (212) 430-6054
Fax (212) 430-6060
e-mail iglhrc@iglhrc.org

Amnesty International USA National Refugee Office
500 Sansome Street, Suite 615
San Francisco, California 94111
Tel (415) 291-0601
Fax (415) 291-8722

Human Rights Watch
Publications Department
Tel (212) 972-8400
Fax (212) 972-0905