By Russell Love, RPCV Togo 1970-1973 and Niger 1974-1976
To qualify for asylum an applicant must show that he or she meets the definition of a “refugee” as that term is defined in the Immigration and Nationality Act. The statute defines a “refugee” as one “who is unable or unwilling to return to . . . [his/her native] country because of persecution or of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Satisfying this definition requires proof of several elements:
- “Persecution” – Does the treatment of the applicant rise to the level of persecution? That term is not separately defined in the statute, but the courts have determined that the term is an extreme concept “marked by the infliction of suffering or harm . . . in a way regarded as offensive.” This frequently requires showing that the claimed persecution or well-founded fear of persecution is similar to those acts found to qualify as such in the caselaw.
- By the government – The persecution must be inflicted by the government or by forces whom the government is “unable or unwilling to control.” This frequently requires proof of the identity of the persecutor, and, if the persecutor is someone other than the government, proof of the government’s failure to control that person.
- “On account of” – The applicant must show that the persecution was “on account of” one of the five statutory grounds (race, religion, nationality, membership in a particular social group, or political opinion). This element requires a showing that the ground is “at least one central reason” for persecuting the applicant, i.e., proof of the persecutor’s motivation. Evidence supporting this element may be either direct or circumstantial.
- One of the statutory grounds – The applicant must show that persecution was because of one of the five statutory grounds. This requires proof of the persecutor’s motivation for the persecution, i.e., that it was based on, for example, political opinion. This requires a showing of the relevant political opinions held.
The application form the applicant must submit seeks to elicit information supporting these elements. But applicants frequently don’t understand the importance of providing proof and, more importantly, of knowing how to provide proof of each of these required elements. This underlines the vital importance of an applicant’s obtaining legal assistance to support the claim. We strongly urge those who consider seeking asylum to obtain legal assistance.
Many organizations offer pro bono or low-cost legal assistance to asylum seekers, including organizations like HIAS, the National Immigrant Justice Center (NIJC), and the US Committee for Refugees and Immigrants (USCRI), as well as law firms and legal clinics of law schools.
Editor’s note:
If an asylum-seeker must meet the definition of a refugee, then what is the difference? The key is where they are when they apply. If they have fled their country and are seeking safe haven in a third country, they apply for refugee status before they go to that country. According to the International Rescue Committee, “Asylum seekers must apply for protection in the country of destination—meaning they must arrive at or cross a border in order to apply. Then, they must be able to prove to authorities there that they meet the criteria to be covered by refugee protections. Not every asylum seeker will be recognized as a refugee.”