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Political Asylum/Refugees
Refugees and Asylees are effectively one and the same. Both
asylees and refugees must (1) meet the statutory definition
of a “refugee,” (2) be eligible for a favorable exercise of
discretion and (3) must not otherwise be barred from obtaining
the relief sought. The difference between them arises from the
location that their application for relief is made. Refugees
reside outside the United States and make their application
for refugee status at an INS office abroad. Asylees are either
requesting admission at a U.S. port of entry or have already
been admitted to the United States in some status. Asylees apply
for political asylum either at the port of entry or to an INS
regional service center or before an Immigration Judge (IJ)
in the United States.
This article will focus on requirements and application for
political asylum in the United States.
The Board of Immigration Appeals (BIA or Board) in Matter of
Sanchez and Escobar, 19 I. & N. Dec. 276 (BIA 1985) suggested
that in order to meet the statutory definition of refugee, an
applicant must satisfy the following elements:
- they must have a well-founded fear of persecution in their
country of nationality or last residence;
- the feared persecution must be on account of race, religion,
nationality, membership in a particular social group, or
political opinion; and
- they must be unable to return to their country of nationality
or last residence because of past persecution or a well-founded
fear of future persecution.
Persecution is the infliction of harm or suffering by a government
-- or persons a government is unwilling or unable to control
-- to overcome a particular characteristic of the victim. Governmental
persecution does not include legitimate prosecution for a crime
or compulsory conscription into the military. A person who can
establish that he has suffered past persecution has met the
definition of “refugee”. Unless country conditions have changed
fundamentally, past persecution creates a presumption that the
applicant has a well-founded fear of future persecution. Even
if country conditions have changed, if the past persecution
was so severe as to make repatriation inhumane, it may be sufficient
by itself to merit a grant of asylum. As a general rule, evidence
of a well-founded fear of future persecution is required in
addition to evidence of past persecution in order for an applicant
to merit a grant of asylum in the INS’ discretion. Even if a
person has never suffered past persecution, however, he may
be eligible for asylum based on fear of future persecution alone.
This fear must be based on a “reasonable possibility” that the
applicant would actually suffer such persecution on return to
his country.
The Five Categories of Refugees
The feared persecution discussed above must be “on account of”
one of the five bases enumerated in the statute: race, religion,
nationality, membership in a particular social group or political
opinion.
Race
Although race is the first listed statutory basis upon which
anticipated persecution can be claimed, few cases have been
litigated in this area. To satisfy the standard, it must be
shown that the government has participated in some conduct that
would cause the alien to fear persecution on account of his
or her racial status.
Religion
Religious persecution is another basis for an alien to establish
eligibility for asylum. To fall within this category, aliens
must establish that they face persecution on the basis of their
religious beliefs in their native country. The federal courts
have shed some light on what constitutes religious persecution:
"There are degrees of persecution. If a person is forbidden
to practice his religion, the fact that he is not imprisoned,
tortured, or banished, and is even allowed to attend school,
does not mean that he is not a victim of religious persecution.
If a government as part of an official campaign against some
religious sect closed all the sect's schools (but no other private
schools) and forced their pupils to attend public school, this
would be, we should think, although we need not decide, a form
of religious persecution."
Bucur v. INS,109 F.3d 399 (7th Cir. 1977).
Nationality
As with cases involving claims of religious persecution, aliens
claiming a fear of persecution on account of nationality must
establish that the government has engaged in some hostile conduct
directed against members of that nationality.
Membership in a Particular Social Group
The BIA has declared that the ''social group'' category contemplates:
". . . persecution that is directed toward an individual
who is a member of a group of persons all of whom share a common,
immutable characteristic. The shared characteristic might be
an innate one such as sex, color or kinship ties, or in some
circumstances it might be a shared past experience such as military
leadership or land ownership."
Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).
Two areas have recently gained recognition in this area: gender-based
persecution and persecution based on sexual orientation. Although
previously considered a private family matter, domestic violence
is now recognized as a sound basis for political asylum. Also,
the Ninth Circuit has held that homosexual men with female sexual
identities constitute a protected “particular social group.”
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