This is the sixth of a series of articles on refugee and asylum law to appear in Immigration 101. Immigration 101 tracks my course in immigration law at Hofstra University and it is designed to provide a broad overview of the policies behind our laws.
In the last installment of Immigration 101 I told you that a refugee is someone who has been persecuted, or who has a “well-founded fear” of being persecuted. This is a difficult standard to satisfy. A person cannot simply claim to be afraid of persecution. The legal burden is on the applicant to prove that she has been persecuted or has a high probability of being persecuted in the future. And the term persecution itself requires severe mistreatment of the applicant, not simply discrimination.
But even if a person applying for asylum can show that he was persecuted severely in the past, that is not enough to qualify. The persecution must have been initiated because the persecutor wanted to harm the applicant because of his Race, Religion, Nationality, Political Opinion, or Social Group. So, for example, if you live in Mexico and you come to the United States because drug gangs have taken over your neighborhood and are having shootouts over territory, you might be able to prove that you have a well-founded fear of being killed, but you would not have proved that your death would be sought by the gangs because of your Race, Religion, Nationality, Political Opinion, or Social Group. Your death, however regrettable, would simply be the byproduct of battles between gangs in which you were “collateral damage”. Race, Religion, Nationality, and Social Group are referred to by immigration lawyers as the “five grounds for political asylum”, and anyone who applies for asylum is required to prove that his persecutor wants to harm him for one or more of these reasons. And this, frankly, is one of the hardest parts of winning asylum.
A person who arrives in the United States after fleeing persecution rarely has a clear idea of just why the government, or the guerrillas, or the death squads were after him. Persecutors rarely operate through the judicial system, preferring to arrive unannounced in the night, hooded and often out of uniform, to take away victims to secret locations for interrogation, torture, and murder. They don’t capture their victims pursuant to warrants, nor do they go before grand juries to explain why a person was captured. So the victim may be completely in the dark about why he is being persecuted. Could it be the petition he signed calling for elections? Perhaps it was his cousin’s involvement in the opposition movement. Or maybe it is his new wife’s ex-boyfriend trying to get back at him by falsely denouncing him to the authorities. Maybe it was just a case of mistaken identity.
Now it would be nice if the lawyers could ask the refugee to go back home and get a note from his persecutor, but this is rarely practical unless you want a dead client.
With the applicant in the dark about why he became a target of persecution, the immigration lawyer representing him has to do the best she can to construct an explanation for the motivation of the persecutor. She will look at human rights reports and interview experts on conditions in the applicants home country to try to discern a pattern of violations against particular groups her client might be a member of. She’ll repeatedly interview her client to determine if he spoke out on politics, was a member of an organization, or had relatives who might have themselves been targeted. By the time she submits the asylum application she will have a “theory of the case” in which she will ascribe the motive for persecution to one or more of the the five grounds for asylum.
If the lawyer can prove that that the persecution was on account of Race, Religion, Nationality, Political Opinion, or Social Group she will move on to the next requirement in proving the asylum case.
In the next installment of Immigration 101 I’ll look at how you can still lose an asylum case even if you show you were persecuted for one of the five asylum grounds.
Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.