Protecting Humanity, 0319 KSBJ, 88 J. Kan. Bar Assn 3, 38 (2019)

AuthorBy Rekha Sharma-Crawford
Position88 J. Kan. Bar Assn 3, 38 (2019)

Protecting Humanity

88 J. Kan. Bar Assn 3, 38 (2019)

Kansas Bar Journal

March, 2019

By Rekha Sharma-Crawford

The safety of the people shall be the highest law1: principles of United States immigration laws

Worldwide, "there are approximately 25-4 million refugees" today.2 Every year, some come to the United States seeking protection; protection from harm, protection from persecution and protection from civil unrest in countries they once called home. Often leaving everything they own behind, these individuals arrive at unknown shores in search of safety and security and a new place to call home. The notion that humans must sometimes be protected from a place where they are forced to flee is a notion deeply sowed in history. From, Rene Descartes to the Dalai Lama to Edward Snowden, history is filled with individuals who sought refuge in a foreign land for fear of persecution.

United States asylum laws inherently derive from international imperatives governing humanitarian crisis and the urgent needs of individuals facing persecution; it is, of sorts, a union of domestic laws and international accords.3 International treaties, United States statutes, federal regulations, and agency and court decisions provide legal authority upon which individual rights and sovereign responsibilities are balanced.

Enshrined in the 1948 United Nations Universal Declaration of Human Rights4 is the guiding principle[5] that every person who fears persecution has the right to seek asylum in other countries. Building on this agreement are the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol relating to the Status of Refugees, which provided the basic definition of a refugee—a definition incorporated in United States law through the Refugee Act of 19806 ("Refugee Act"). Answering the call to meet its legal obligations to provide protections to eligible refugees, the Refugee Act set out a systematic procedure, which allowed refugees to either enter the United States a s a resettled refugee or seek asylum from within the United States as an asylum seeker.

Contained within these doctrines are not only the rights of refugees but also the responsibility of sovereign nations to not expel, deport, or extradite someone back to a home country, that poses a risk to their life—the legal concept of non-refoulment.7 The principal provisions of the Refugee Act, which relate to asylum applicants, are found as part of the Immigration and Nationality Act ("INA"),8 a comprehensive codification of United States immigration laws.

Although the term asylum, colloquially, is used to define a group of non-citizens9 who are afforded protections from persecution, the law breaks down this form of relief into nuanced shades. Contained within the asylum classification are also the provisions to address non-refoulment concerns: Withholding of Removal and protections under the Convention Against Torture (CAT).10

As part of a greater immigration overhaul, the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRAIRA) amended the definition of refugee found in the Refugee Act to specifically include individuals fleeing coercive population control measures11 and exclude individuals who, themselves, had been involved in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion,[12] or had been convicted of certain crimes, namely aggravated felonies.13

Perhaps the single most complicating factor with respect to immigration laws is that federal court decisions, agency decisions, by precedential decisions or by rule changes, and even the United States Attorney General, acting on certification authority, can and often do change the trajectory of the case law relating to asylum at speeds not common in most practice areas.

A Rose by any Other Name14 : the thorny world of immigration definitions United States immigration law is full of terms of art, which create nuanced differences between categories of individuals all seeking safe harbor from the perils they left behind. Refugees and asylees are two groups of people fleeing persecution. Both groups begin at the same point of legal analysis, however, a refugee is a person who is physically located outside the United States and is petitioning the United Nations High Commissioner for Refugees (UNHCR) or other similar organizations for protection from their persecution.15 Conversely, an asylee is a person who comes to the United States, either lawfully or unlawfully, and then asks for legal protections for harms they have already suffered or ones they reasonably fear in the future.16

Specifically, the INA defines a refugee as "[a]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling17 to return to, and is unable or 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."18 Contained within this one definition are several other terms, which outline the parameters for asylum eligibility. Specifically, the applicant must show that they are unable or unwilling to return to their home country because they have either been persecuted or have a well-founded fear of future persecution on account of one of the enumerated grounds.19

"Persecution" refers to the "infliction of suffering or harm upon those who a way that is regarded as offensive."20 Under this description, threats to life or freedom are generally accepted as forms of persecution. Moreover, physical abuse, even where it is not life-threatening, has been found to be persecution under the asylum laws.21 So too have severe forms of economic deprivation been found sufficient to amount to persecution.22 However, mere harassment or discrimination which is not severe does not generally rise to persecution.23 If the applicant establishes that they have suffered actual past persecution, there arises a presumption of future persecution.24 This presumption, however, relates only to fear of harm based on the original claim of persecution and not to fear of harm based on a new ground of eligibility25

Additionally, a "well-founded fear" has been interpreted to mean that a reasonable person in the applicant's circumstances would fear persecution based on one of the five grounds specified in law26 Put another way, an applicant for asylum must establish that there is both a subjectively genuine and an objective reasonable fear of future harm in order to establish a well-founded fear of future persecution.

Moreover, harm, not based on "account of"[27]one of the enumerated grounds—namely race, religion, nationality membership in a particular social group, or political opinion—is insufficient to grant protection. Therefore, any showing of harm must be linked to, or have a nexus to, one of the grounds recognized in law in order to satisfy eligibility for asylum.28Under the concept of "mixed motive," an asylum applicant "in proving past persecution" must "produce evidence, either direct or circumstantial, from which it is reasonable to believe that the harm was motivated in part by an actual or imputed protected ground."29It is also common to have asylum claims based on multiple grounds where more than one basis is applicable.

Significantly, generalized civil strife or violence in a country is insufficient as a basis for asylum because it is usually not on account of a protected ground but rather a product of "widespread and indiscriminate violence."30 Even in such cases however, asylum often remains a proper request where the persecutor acted, in part, whether correctly or erroneously on a protected ground that was imputed to the applicant.31 This is because, under the regulations, the applicant may be eligible for "humanitarian asylum" where it can be shown that the applicant has demonstrated "compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or__ that there is a reasonable possibility that [the applicant] may suffer other serious harm upon removal to that country"32

In order to be eligible for humanitarian protection, persecution had to have been on account of one of the enumerated grounds. Although many often equate "asylum" with "political asylum" under law, this ground is but one of the five characteristics upon which asylum may be granted. The five characteristics are:

"Race" in the asylum context is defined in the broadest of terms and includes ethnic and tribal membership;33

"Religion" based persecution may include physical harm, or severe mistreatment based on one's faith34 —this category includes conscientious objectors;35

"Nationality" as contemplated in asylum law is inclusive of not only citizenship but also "to membership of an ethnic or linguistic group"36 and may involve "adverse attitudes and measures directed against a national (ethnic, linguistic) minority"; and37

"Political Opinion" as explained by the UNHCR Handbook, involves more than simply holding a political view different from those of the applicant's government. Instead it requires a showing that the applicant's "opinions [are] not tolerated by the authorities, which are critical of their policies or methods and...that such opinions have come to the notice of the authorities or are attributed by them to the applicant."38 This protected ground may include beliefs, actions or inactions.39

The final category involves...

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