Asylum Law by Andy Gene Strickland

Immigration Attorney Andy Gene Strickland blogs about the general framework of US Asylum law: 

The Immigration and Nationality Act section 101(a)(42) states that:  “The term “refugee” means (A) any person who is outside any country of such person’s nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is 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…”   Persecution is a broad term and it is not defined in the INA or the CFR.  Therefore we must look to case law and persuasive resources in order to help us determine if the applicant has been persecuted for purposes of qualifying as a refugee and asylum.

In the landmark BIA Asylum case of Matter of Kasinga, Int. Dec. 3278 (BIA 1992)the BIA states: “While a number of descriptions of persecution have been formulated in our past decisions, we have recognized that persecution can consist of 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.” (emphasis added)   The United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status (hereinafter handbook), page 51 states:

“There is no universally accepted definition of “persecution,” and various attempts to formulate such a definition have met with little success…[I]t may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always is persecution.  Other serious violations of human rights- for the same reasons- would also constitute persecution.”

Andy Gene Strickland describes persecution to include threats to life, confinement, and torture. Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997).  One of the leading cases on U.S. Asylum law is INS v. Cardoza-Fonseca 480 U.S. 421 (1987).  The burden is on the asylum applicant to show that it is “More Likely Than Not” the applicant will be persecuted if returned to their native country.  The U.S. Supreme Court suggested that even LESS THAN a one-in-ten chance of suffering persecution would make an applicant’s fear well-founded to qualify for asylum. Id at 440.  The persecution feared must be a reasonable possibility.  Id

When an applicant has suffered past persecution, there is a rebuttable presumption of a well-founded fear of future persecution.  See 8 C.F.R. 1208.13(b)(1).  To overcome this presumption, the government must demonstrate, by a preponderance of evidence that, either:

(1) the respondent could avoid future persecution by relocating to another part of respondent’s country of nationality or

(2) since the time the persecution occurred, conditions in the Respondent’s country have changed to an extend that the Respondent no longer has a well-founded fear of persecution of he were to return to his country.  See 8 C.F.R. 1208(b)(1).

Andy Gene Strickland states that in order to demonstrate a well-founded fear of return, an asylum applicant must establish that he has both a subjective and objective fear of returning to his country of origin.  The subjective component requires that the applicant demonstrates a genuine fear of persecution.  “An asylum applicant’s candid, credible, and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.”  The United Nations High Commissioner of Refugees states that “an evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions.”  Although not binding law on U.S. asylum applications, the Handbook is persuasive authority.

The test for the objective component is whether a reasonable person in the applicant’s circumstances would fear persecution. The objective element requires credible, direct, and specific evidence that supports a reasonable fear of persecution.   A ten percent chance of persecution may result in a well-founded fear sufficient for asylum.   As long as the objective component is established by the evidence, it need not be shown that the situation will probably result in persecution. It “is enough that persecution is a reasonable possibility.”  The United States Supreme Court has held that a risk of 10% or more of persecution if the asylum applicant is returned to his country is sufficient to warrant a grant of asylum .

UN Convention Against Torture as Described by Andy Gene Strickland

Nonrefoulment under the United Nations Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment prohibits that government of the United States from removing an individual who establishes that it is more likely than not that a person would suffer torture at the hands of the government of the country of nationality or last habitual residence.  Article III of the convention protects all individuals from a specific type of violation-torture.

According to 8 C.F.R. 208(b) the standard of relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment differs from that for a grant asylum or for withholding of removal, in that the alien NEED NOT PROVE reason for the torture, nor that he or she has a well-founded fear of it, but only that it is more likely than not he or she will be tortured if returned to a proposed country.

According to Andy Gene Strickland Article I or the Convention defines torture as:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity.”

Immigration Attorney Andy Gene Strickland invites you to review the actual text of the UN Convention Against Torture:

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