The Five Paths to Win Asylum, Known as Protected Grounds
Asylum is granted to foreign nationals who can demonstrate that they have been harmed (or will be harmed if returned) on account of one of five protected grounds. This article explains those grounds in detail.
Five Protected GroundsAn applicant needs to demonstrate that the feared harm occurred - or will in the future occur - because of a trait she possesses. These are traits that the asylum applicant cannot (or should not) be forced to change: race, nationality, particular social group, political opinion, and religion.
The applicant will win asylum if she demonstrates that the harm suffered occurred primarily on account of this trait. There may be other reasons, too. For example, a rich opponent of a government may be targeted both because of her political opinion and her wealth and still receive asylum. The police may refuse to help a wife whose husband is beating her to death both because she is a woman and because government practices in that country allow men to treat women as property. Combined, these traits form a particular social group.
Race/NationalityThe United States will grant asylum to someone who would be significantly harmed because of her race or nationality.
The term nationality includes citizenship, as well as membership in an ethnic or linguistic group, and intersects with the term race. Although this usually means significant harm by a powerful group against a minority, that is not necessarily a requirement.
Often, persecution on account of race or nationality is closely tied to imputed political imputed. That is explained further below.
Religion - Including AtheismI believe that religion can only hold a sacred place in our hearts if we have the right to choose our faith or decline it altogether. For this reason, we proudly represents humanists, secularists, deists and atheists in their requests for asylum. Of course, we also proudly represent those who are harmed (or may be harmed) because they believe strongly in the doctrines of their faith.
The Guidelines on International Protection: Religion-Based Refugee Claims define religion so as to include non-theistic and atheistic beliefs. "Beliefs may take the form of convictions or values about the divine or ultimate reality or the spiritual destiny of humankind.
Laws that harm members of a particular social group but are applied equally to everyone in the country cannot form the basis of an asylum claim. For example, the German law against homeschooling impacts evangelical Christians who want to keep their children at home to teach the tenets of their faith. Those who do not send the children to school may be jailed or lose custody. Nevertheless, religious home schoolers are not jailed because of their religion; they are jailed for failing to follow a general law. The same holds true for those who refuse to join the military on account of their religion.
Political Opinion -- Including AtheismPolitical opinion has been defined as a belief relating to any aspect of governance. Persons who may be harmed because they oppose the government in their homeland would be wise to apply for asylum.
Asylum is often misnamed "political asylum" because the myth is that only persons who oppose their government receive asylum in the United States. While opponents may constitute a majority of asylum applicants, political beliefs are completely irrelevant to a successful case that has to do with the following: imputed opinion, atheism, and coercive population control. Each is discussed below.
1. Imputed opinion
Interestingly, if oppressors incorrectly believe that a foreign national holds a political opinion and have harmed her on account of that mistaken belief, she can win asylum in the United States. This is known as the doctrine of imputed political opinion.
An applicant may prove that as a result of her family's political opinion, she was targeted because someone believed she holds the same political opinion. This argument has been very successful in cases where an applicant does not have much proof of her beliefs, but the family has a history of supporting a certain political party or candidate.
Those who do not believe in religion have a difficult time winning asylum on account of religion. The better argument would be for them to seek protection on account of their political opinion - even if they completely agree with their government's policies! The asylum case would be prepared this way: the atheist suffers because harmful government policies are permitted due to the religious beliefs of the majority.
An example of such a case is Matter of S-A-, 22 I&N Dec. 1328, 1335 (BIA 2000). A young woman from Morocco opposed not only her father's orthodox Muslim beliefs, but also the regime that allowed the torture of women in that society based on those beliefs. In Morocco, her father burned her for wearing short skirts as opposed to the burqa, beat her for speaking with a man, and forbade her to attend school. He was able to abuse her because the police in Morocco -- following Muslim law -- give a father complete power over the life of his daughter. The Board of Immigration Appeals granted her asylum.
The government practices of several countries limit freedom of religion. For example, in Pakistan, speech is repressed if it is not in the "interest of the glory of Islam." International Religious Freedom Report for 2011, Executive Summary. So, Pakistanis who oppose that government practice would be granted asylum based on political opinion (and not religion).
3. Coercive population control
A person who has been forced to abort a pregnancy or to undergo involuntary sterilization or who has been impoverished for failure, refusal or resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion. Likewise, those who have a well-founded fear that they will be persecuted for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.
Particular Social Group (PSG)The most difficult category to explain is that an applicant may be eligible for asylum as members of a PSG. According to the UNHCR, a particular social group includes "a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of human rights."
Persons that have received asylum as members of PSGs include the following:
ii. Men with female sexual identities
iii. Family members
iv. Former U.S. embassy employees
v. Former child soldiers
vi. Persons with disabilities
vii. Filipinos of Chinese ancestry
viii. Guatemalan street children
ix. Honduran street children
x. Persons who are HIV positive
xii. Former members of the national police
xiii. Government employees
xiv. Union members
Whenever our team prepares an asylum case, we ask many questions to determine if the applicant is different from others in her society. In one case, the applicant was an epileptic from India. This group receives so much mistreatment that almost 100% of epileptic women in India hide their condition until after marriage.
The size of the PSG does not matter. In many countries, women are forced into marriages resulting that they either acquiesce to sexual relations or are beaten by her family or her husband's family. These women would be eligible for asylum.
Women may qualify for asylum as members of a distinct sub-group, such as:
i. Women who have escaped involuntary servitude after being abducted and confined by an international criminal organization
ii. Female members of a tribe
iii. Young women who are members of a tribe who have not been subjected to female genital mutilation and who oppose the practice
iv. Married women who have contracted HIV, who fear their families will disown them or force them to get a divorce, and who need to be employed
v. Young, Westernized, educated, Muslim women
The particular social group is limited only by the facts, the law and the creativity of the legal team preparing the case.
Defining the Particular Social GroupIn recent years, the courts required the applicant to demonstrate that her group was "socially visible." This led to inconsistent results because some judges interpreted visible literally. Of course, it is impossible to see a difference between a single woman and a married woman OR between someone who has HIV and someone who does not, although these groups are treated very differently in most countries.
On February 7, 2014, the Board of Immigration Appeals in Matter of M-E-V-G, redefined "social visibility" as "social distinction." The applicant does NOT need to be different from others in a way that can be seen. By redefining PSG this way, the Board helped individuals who must hide their membership in a group to avoid being killed.