Read on about immigration law regarding fear of persecution in your homeland and how it may support your asylum application and or refugee resettlement.
What is the difference between asylum application and refugee resettlement?
If you are fleeing because of persecution from your country or you have a well-founded fear of being persecuted if you back to your homeland, you have two choices:
1) Asylum application (if you are presently in the U.S.) or
2) Refugee resettlement (if you are currently overseas).
Bear in mind that the qualifications for these protections are stricter than you might expect. You will need to become familiar with the lawful grounds for asylum and refugee status and to be ready with supporting documents proving that you meet these grounds.
What are the Basic Grounds for Asylum or Refugee Status?
To prove eligibility for asylum or refugee status, you must demonstrate to the immigration judge that you are either the victim of past persecution or you have a well-founded fear of future persecution. In the case of past persecution, you must show that you were persecuted in your homeland or last country of residence.
The persecution must have been based on at least one of five grounds, either your:
- political opinion, or
- membership in a particular social group.
Establishing this connection between the persecution and one of these five grounds is one of the most difficult tasks of an asylee or refugee status applicant. It got even more challenging in 2005 when the REAL ID Act added a requirement that one of the five grounds was or will be a “central reason” for your persecution.
In some cases, persecution may also be based on your gender. This has been applied to cultural practices such as female genital cutting or forced marriage. Lawyers have also been striving for years to have domestic violence, honor killing, and labor or sexual trafficking understood as bases for asylee status, specifically in cases where the police and government aggravate the problem by failing to protect the women or prosecute the perpetrators.
What Is Persecution?
The law does not specifically list types of persecution – except in one section (added in 1996), which says that refugees and asylees can refer to people who have undergone or fear a “coercive population control program” (such as forced abortion or sterilization—this was aimed primarily at mainland China).
However, only a few of the many asylum applicants qualify into that category. Persecution is commonly defined as the infliction of suffering or harm, or a serious threat to your life or freedom. Although harassment alone is not sufficient enough to be grounds for persecution, aggravating actions like death threats, torture, imprisonment, constant surveillance, pressure to join a group engaging in illegal activity, interference with your privacy, family, home, or correspondence, or discrimination in matters like housing, education, or passport issuance have all been found to qualify an applicant.
Another qualifier is that the threat against you needs to be nationwide—which means you will not be able to avoid the persecution simply by moving to another part of your country. Suffering economically is not, by itself, considered a reason for granting refugee or asylee status. It is also not enough grounds for persecution to site a crime committed against you for random or personal reasons.
If you have not actually suffered persecution in the past, you can still qualify for political asylum or refugee status if you have a genuine fear of future persecution in your home country or last country of residence.
For instance, if you were a treasurer of a student activist group, and undercover agents sent you death threats, or killed the secretary and president of your group, you could probably show a reasonable fear of persecution. Again, a “central” reason for your persecution must be your race, religion, nationality, membership in a particular social group, or political opinion. You do not need to prove that you are likely to be singled out for persecution from the members of a generally persecuted group. However, you need to establish a pattern or practice, where groups of people who are similar to you are being persecuted. Then, you must prove that you either belong to or would be identified with the persecuted group.
Is It Recognized As Persecution Only If It Comes From The Government?
No, the persecution does not only need to come from your country’s government or other authorities (such as police or security forces). Refugee law also identifies persecution by groups that the government is unable to control, such as guerrillas, warring tribes or clans, paramilitary group, or organized vigilantes. Again, however, the persecution must have some political or social basis. If you are being hunted down by a gang or a criminal syndicate because of debts you owe is not persecution, according to refugee law.
What Does “Well-Founded Fear” mean?
The ‘well-founded fear of persecution’ element of the refugee definition is assessed both objectively (well foundedness) and subjectively (fear). The fear must be subjectively genuine and objectively reasonable. Subjective, genuine fear means that you, personally, really do fear returning to your country of origin. Objectively reasonable fear means that you can demonstrate facts, based on objective sources of evidence or your and other witnesses’ persuasive, credible testimony, that any reasonable person would fear persecution in your position.
It is not necessary that the applicant’s fear is based on his or her own experience; the applicant’s fear may come from the experience of other people in the same situation. As such, the 1951 Convention protects not only persons who have been persecuted but also to those who wish to avoid risking persecution.
If The Situation in My Country Has Improved Will I Be Ineligible to Seek Refuge in the U.S?
If you suffered severe persecution in the past, you are presumed to face future persecution as well. However, the U.S. government may claim that your homeland is now considered safe to return to.
If that happens, you may still be able to successfully apply for asylum in the United States. Something called “humanitarian asylum” allows you to receive asylum if you can demonstrate “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution” or “there is a reasonable possibility that [you] may suffer other serious harm upon removal to that country.” For instance, if your property and everything you owned was destroyed, or you would face severe emotional trauma upon returning, or you would remain a social outcast even if you did not face persecution, you might qualify for humanitarian asylum.
Where Can I Get Help?
If you wish to apply for asylum in the United States, it is in your best interest to talk to an experienced U.S. immigration lawyer. The attorney can assist you in your asylum application – which involves not only preparing the application form but drafting a lengthy written statement from you and collecting various supporting documents – invaluable help that can save you days in the processing times. Your immigration lawyer at Van Doren Law in Blacksburg can also represent you at the Asylum Office or in immigration court.