Written by attorney Elizabeth Rose Blandon

Persecution: In the Eyes of the Immigration Judge or Officer

Does a death threat amount to persecution? We have all heard the expression that “beauty lies in the eye of the beholder." Well, for asylum cases, persecution lies in the eyes of the immigration judge or officer. The conflicting decisions by courts around the country make it difficult to determine whether a foreigner has suffered persecution because there is no “cookie cutter" harm that will amount to persecution.

In Florida, the Eleventh Circuit in Sanchez-Jimenez v. Attorney General¸ has decided that attempted murder is persecution. In that case, the foreign national was shot at, but lived to receive asylum in this country. Sadly, what amounts to attempted murder varies depending on who is deciding the case. Is holding a gun to someone’s head attempted murder or a death threat?

The Seventh Circuit has ruled in the affirmative. In Nakibuka v. Gonzales, that Court held that pointing a gun to the foreigner’s head was sufficient to establish persecution for asylum.

However, the Third Circuit held in Li v. Attorney General that even repeated death threats do not amount to persecution unless the threats are imminent. In that case, the foreigner claimed to be under threat of abortion, physical harm, and imprisonment. She was never physically attacked. Meaning, that in states falling under the jurisdiction of the Third Circuit, a foreigner will be able to obtain asylum only if the persecutor was able to carry out the threat . . . and quickly!

Written death threats, death threats painted on walls, etc. have been found not to amount to persecution in most instances because the foreigner cannot establish that the threat is immediate. Interestingly, in lower courts, judges have granted asylum based on credible verbal death threats. The reasoning in those cases is that past threats are evidence of likely FUTURE persecution.

The Eleventh Circuit has stated on numerous occasions that physical injury is not required to amount to persecution. Thus, in Florida, a foreign national need not have suffered physical harm to be granted asylum.

Foreign nationals should rely not only on their testimony, but also on heavy documentation. Written proof – such as affidavits of witnesses and police reports -- will help the immigration judge see the harm they suffered clearly.

Although the author is a Board-certified immigration expert, this guide is intended as general information and not specific legal advice. This communication does not create an attorney-client relationship. Schedule a consultation with an attorney to address individual concerns.


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