Defining Persecution

 Posted on June 24, 2015 in Immigration

To obtain asylum in the United States, it is necessary to make a convincing showing to an immigration judge that you have a reasonable fear of danger if you return to your home country. This can be done by showing that there is a likelihood that you will be persecuted, or it may be shown by displaying evidence of past persecution. However, not every instance of abuse rises to the level of persecution. It is important to know the difference, because immigration judges certainly do.

Asylum Law Fundamentals

When a person applies for asylum in the United States, there are fundamental facts he or she must be able to prove to the immigration judge overseeing his or her case. The Immigration and Nationality Act (INA) defines a refugee as someone who has a well-founded fear of persecution in the future, either based on past persecution or on risk of persecution in the future if returned to their homeland because of their membership in a particular social group.

Persecution, either in the past or in the future, has no specific definition in U.S. law. The INA defines some examples that always qualify as persecution, such as threats against someone’s life or liberty based on race, religion, nationality, political opinion, and other beliefs. However, the list is not meant to be exhaustive. It is not always physical; if severe enough, emotional or mental abuse can qualify as persecution.

The INA also specifies that the agent of this persecution must either be a governmental entity or an entity that the government has shown an inability (or unwillingness) to control. The prevailing opinion is that the government of a country is supposed to be able to control fringe elements within its borders, and if they can do so, the applicant can rely on their government instead of fleeing the country entirely.

Defining Persecution

Immigration Equality has defined five broad categories into which behavior classed as persecution by judges routinely falls. They are:

• Serious physical harm (rape, routine beatings, kidnapping, confinement and other examples);

• Forced or threatening medical or psychological treatment (such as being subjected to electric shock or “corrective” rape);

• Disproportionate punishment for committing a crime (such as an unusually long sentence or public physical punishment);

• Economic persecution or other forms of severe discrimination; and

• Severe criminal acts being perpetrated against you (such as a targeted, lengthy campaign of extortion).

The fourth category is somewhat of a catch-all, but it is important that the word ‘severe’ is stressed. While the subjectivity of this approach has been criticized, U.S. law generally holds that harassment and discrimination alone do not meet the criteria to be characterized as persecution unless they are extreme and protracted campaigns. A homosexual person, for example, may not claim past persecution if he or she experienced only heckling. More severe consequences are generally required to convince an immigration judge that a person’s life would be in danger without a grant of asylum or withholding of removal.

Enlist Experienced Help

Because asylum law can be so subjective, it may make all the difference in the world to have a competent attorney on your side. The dedicated Chicago asylum attorneys at Mevorah & Giglio Law Offices will fight for you, working with you every step of the way to give you the best possible chance at your desired result. Contact us today for a free consultation.