Proving persecution: the burdens of establishing a nexus in religious asylum claims and the dangers of new reforms.

AuthorFrantz, Brigette L.

INTRODUCTION

Upon entering the United States, asylum seekers often have a difficult and completely unknown path before them. They may know little or no English and have no concept of the detailed and complex immigration system they must navigate in order to remain in the United States. Take, for example, a woman from China, who also happens to be a Christian. She has fled to the United States from her home country because she has been tortured and beaten for being a Christian in a country that does not approve of Christianity. Her first step is to apply for asylum--an arduous task given her lack of English and the complexity of the system. (1) Eventually, she finds someone to assist her in filing the application, (2) but she still cannot read what it says. Once the application is filed, she goes before an asylum officer who finds that he cannot make a decision on the claim. The officer does not deny her application, but rather refers her to an immigration judge for a full hearing on her case. Once in the immigration court system, she attends a master calendar hearing at which the date for her full merits hearing is set. The date set is almost a full year away. (3) By this time, she has also found an attorney to represent her, but can barely afford to pay for the representation. (4) At the merits hearing, the immigration judge ("IJ") listens to her testimony and the same day issues an oral decision denying her claim. The IJ states that she cannot prove she was persecuted because of her Christianity and is thus not eligible for asylum. She files an appeal with the Board of Immigration Appeals ("BIA"), which denies her claim without an opinion, simply adopting the IJ's decision. (5) At this point, she has a working knowledge of English, has found a place to live and work, and has friends. She has also been ordered deported.

The asylum system in the United States is greatly flawed. It is one of the most complicated and difficult asylum systems in the world, (6) due in part to the intricate and complicated standards an asylum seeker must fulfill to remain in the United States. (7) This is a sad fact, given that the United States is still considered the land of freedom and opportunity by the persecuted in the world who arrive seeking safety and protection. (8) The narrow lines drawn by decision makers in the United States hinder, rather than help, asylum seekers in their quest for safety. Furthermore, the United States has veered significantly from the original purpose and obligation of asylum, which was to protect those who were unable or unwilling to remain in their own countries because of a fear of persecution. (9) This purpose of asylum is embodied in the internationally accepted definition of "refugee," adopted by the United Nations in 1951 to better protect those who cannot avail themselves of protection in their own countries. (10)

Those fleeing religious persecution are particularly vulnerable in the United States asylum system. There is a generally accepted belief that freedom of religion is a universal concept to which most nations adhere. (11) Unfortunately, this is not the case. Many nations claim to allow free religious practice (12) but, in reality, egregious violations of this right are occurring in numerous countries. (13) The United States is one of the nations proclaiming to protect religious freedom, as it is one of the basic freedoms upon which the nation was founded. (14) Domestic courts often fall into the trap, however, of believing that another nation's proclaimed religious freedom means that it does not persecute on religious grounds. The decision maker who so assumes often refuses to find a nexus between the asylum seeker's persecution and her religion. If a foreign state claims to accept religious freedom but regulates it, United States courts will often find that the asylum seeker suffered prosecution for breaking a law and not persecution for religious beliefs. (15)

This Note contends that the United States has become one of the most difficult nations in which to win asylum from religious persecution, and thus the original intention of asylum has become skewed. There are many factors contributing to this state of affairs, which is where this Note begins. Part I focuses on the origins of what is now known as the "nexus test," in which an asylum seeker must prove that she was persecuted because of her race, religion, nationality, membership in a particular social group, or political opinion. It discusses the original purpose of asylum--the protection of those unable to protect themselves--and how that purpose eventually led to the United Nations Convention Relating to the Status of Refugees ("1951 Refugee Convention" or "Convention") and the acceptance of a standard international refugee definition. Next, Part II discusses the shift in American law from the Refugee Convention's definition to a slightly different one that has had a substantial negative impact. This Part also explains the two-part nexus test, which results from the slightly altered definition and includes proving the motivation of the persecutor. This section then explores the application of the nexus test to religious persecution claims both domestically and abroad, and demonstrates how easily the United States falls into the trap of differentiating prosecution based on religious practice from persecution based on religious belief. Part III addresses the Real ID Act, (16) new legislation recently enacted that modifies the standards for asylum, and how the Act will negatively impact religious asylum claims. Finally, this Note concludes by discussing the need to return to the original meaning and purpose of asylum and to abide by international obligations, as well as the type of legislation that would cause this to happen.

  1. THE ORIGINS OF THE NEXUS TEST AND THE PURPOSE OF A COMMON REFUGEE DEFINITION

    One of the most insurmountable obstacles for an asylum seeker is what has become known as the "nexus test." (17) This test is based on three words in the definition of a refugee, as found in United States law, which states that an asylum seeker's past persecution or fear of future persecution must be "on account of race, religion, nationality, membership in a particular social group, or political opinion." (18) This seemingly straightforward and easily applied definition has been interpreted by United States courts to require a demonstration that the persecutor was motivated by one of the reasons listed in the refugee definition. (19) Essentially, United States courts demand that the asylum seeker prove the subjective intention of her persecutor. (20) This kind of proof is extremely difficult to obtain. The nexus test as it exists in American law is also quite different from that used by other members of the international community, (21) despite the common source of the definitions: the United Nations Convention Relating to the Status of Refugees. (22)

    1. The Precursors to the United Nations Convention Relating to the Status of Refugees

      Since the creation of civilized communities, people have fled their homes to escape persecution. (23) In the early twentieth century, international organizations tried to create a system to protect those fleeing persecution. (24) The 1951 Refugee Convention (25) is perhaps the most comprehensive and readily accepted form of protection, but it most certainly was not the first. Many other organizations, treaties, and agreements also created basic and necessary protections for certain refugees. The roots of international refugee protection trace back to the League of Nations, which was officially formed in 1919 with the adoption of its constitution at the Paris Peace Conference. (26) The primary concern of the League of Nations was the establishment of "international co-operation" and "international peace and security." (27) As far as refugees were concerned, the League's major dilemma was Russian refugees who fled their homes following World War I, the Balkan Wars, and the Greco-Turkish Wars. (28) Several arrangements in the 1920s created protections for Russian, as well as Armenian, refugees. (29) None of these arrangements, however, had any significant binding force, and none of them provided general protection for all refugees. They were very specific about which groups could receive protection (i.e., Russians and Armenians), and did not provide for other groups.

      The first substantial League of Nations treaty providing refugee protection was the 1933 Convention Relating to the International Status of Refugees ("1933 Convention"). (30) The 1933 Convention constituted a leap forward in refugee protection, as it dealt with a broad range of refugee issues such as labor, welfare, and education. (31) The 1933 Convention also established the concept of refoulement, or "return," which is a crucial element of modern asylum law. (32) The premise of refoulement, or non-refoulement, is that when an asylum seeker enters a given nation's borders, that nation is not permitted to send her back to a country where she could face persecution and torture. (33) It is essentially an obligation to protect, and is a commonly accepted part of international law. Again, however, the 1933 Convention did not set forth a general definition of a refugee, and it applied only to Russians, Armenians, and other assimilated refugees. (34) That is not to say that the 1933 Convention was not influential; it most certainly was. Nine states ratified the 1933 Convention, (35) and it was a binding force while in effect, contributing significantly to the 1951 Refugee Convention, thus making it the most widely utilized refugee protection method of its time.

      The League of Nations saw the birth of refugee protection, but the International Refugee Organization ("IRO") saw that concept grow until it finally matured into the 1951 Refugee Convention. (36) The IRO was created in 1946 by a United Nations Resolution. (37) The IRO...

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