Recently, I continued my discussion about the very old immigration defense of “asylum.” In particular, I explained that prove and win a case, it is necessary to prove that a person is a “refugee,” which means that someone applying for asylum has to prove that he or she was persecuted.
What does persecution mean? We have all heard the word, certainly, but what does it mean in immigration law? For the purposes of asylum, an applicant has to prove that he or she was harmed or identified by the government for some sort of harsh treatment, or denial of rights, because of his or her social group or race or politics or religion.
There are two ways to prove persecution of this sort: first, past persecution. An applicant may prove that he or she suffered harsh treatment or deprivation of rights in the past. Second, an applicant may prove that he or she has a very real fear of future persecution if he or she were to return to his or her home country. Either one of these two kinds of persecution will establish that someone is a “refugee.”
Perhaps the easiest way to think about asylum is that one must first prove persecution, if a person can prove this, they have to also prove that he or she was persecuted because of some special group to which he or she belonged, if a person can prove both of these two things, then a person has proved that he or she is a “refugee.”
Additionally, I should explain that the way that persecution is defined depends, in part, on whether the person is applying for “withholding of removal,” or for “asylum.” As I have mentioned previously, “withholding of removal” is a different kind of asylum available if a person does not file his or her application before the end of his or her first year in the United States. Normally, an application for asylum must be filed within one year of arriving in the United States. Withholding of removal may be applied for in immigration court at any time after entry to the United States.
To prove this kind of asylum, an applicant has to prove that it is “more likely than not” that he or she will be subject to persecution. This legal standard is different from the legal standard for asylum. For ordinary asylum, a person only has to prove that he or she suffered past persecution or would logically suffer future persecution. The standard of proof and evidence in asylum cases is that the person’s past or future persecution be clear, and believable, and logical. The persecution does not have to be guaranteed to happen, or to have happened in the past. The law actually says that, for asylum, the chance of persecution can be low, but it must be real.
For withholding of removal, the chance of persecution must be at least 51%. It cannot be low, even if it is real. An applicant for withholding of removal must prove that the persecution in the future probably will happen.
This is much harder to prove than the fact that a person may likely suffer, or likely did suffer in the past.
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