Who Decides Persecution in Asylum
Asylum is awarded to someone who may suffer persecution. This extreme concept does NOT include every sort of treatment that our society regards as offensive. In order to improve your chance of success, it is important to understand WHO will decide whether persecution has occurred.
Supreme Court and Appeal Courts: Federal ReviewThe term persecution may be only one word, but judges define that word differently. If an applicant wishes, she can appeal her case to the federal courts. The Supreme Court is the highest court in the United States.
Below the Supreme Court are eleven courts known as the Courts of Appeal. For example, cases that arise in Florida, Georgia and Alabama are reviewed by the Eleventh Circuit Court of Appeals.
Importantly, asylum cases from those states must follow the law of the Eleventh Circuit. At the time of the writing of this book, the Eleventh Circuit had ruled that the following were persecution:
-- Attempted murder (specifically, being shot at)
-- A series of events and threats including the attempted kidnapping of a young child
In Florida, the Eleventh Circuit in Sanchez-Jimenez v. Attorney General, 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 said yes in Nakibuka v. Gonzales. Pointing a gun to the foreigner's head was sufficient to establish persecution for asylum. However, the Third Circuit disagreed (Li v. Attorney General) and said that unless the threats are imminent, asylum is denied. 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!
Board of Immigration AppealsThe Board of Immigration Appeals is the last step before the federal courts. They review cases where Immigration Judges decided that some types of significant harm are NOT persecution.
The Board has held that the following were persecution:
-- Repeated beatings and multiple handwritten anti-Semitic threats, apartment vandalized by anti-Semitic nationalists, and son was subjected to degradation and intimidation on account of his Jewish nationality
-- Having an abortion where a reasonable person understood that refusing the abortion would have resulted in severe harm
Asylum Offices -- Same Law, Different Processing Times, Different ResultsA foreigner can sometimes apply for asylum directly with the Citizenship and Immigration Service ("the Service"). Those cases are reviewed at one of several Asylum Offices, which are located in Arlington, Chicago, Houston, Los Angeles, Miami, New York, Newark, and San Francisco.
Although the Asylum Offices must follow the same law and the same memorandums from the Service, they have VERY different approval rates. Applicants should take this into consideration if they have the luxury of deciding where they will move after arriving in the United States. Statistics are available for the Asylum Offices by going to the website www.uscis.gov and searching for the term "Asylum Office Workload."
Different offices also have different processing rates. The Affirmative Asylum Scheduling Bulletin indicates the date of the asylum applications that it is currently processing.