What Is “Persecution”?

by Jason Dzubow on August 18, 2015

Language is intensely personal. When I say the word “house,” I have one image in mind, and when you hear it, you have your own image in mind. Indeed, every person on Earth who hears the word “house” will have his own mental image of what that means. Despite all this, we manage to communicate.

The "comfy chair" constitutes persecution only in the Ninth Circuit.

The “comfy chair” constitutes persecution only in the Ninth Circuit.

But when we move from interpersonal communication to the more precise language of the courts, the problem becomes more acute. Perhaps it was best summed up by Supreme Court Justice Potter Stewart, who famously declined to define the term “pornography.” Instead, he stated, “I know it when I see it” (less well-known was his next line: “And I enjoy seeing it at least twice a day”).

In asylum law, we have a similar problem–not with pornography, heaven forbid–but with another “p” word: “persecution.”

“Persecution” is not defined by statute, and the Board of Immigration Appeals–the agency tasked with interpreting the immigration law–has failed to provide much useful guidance (as usual). And so the buck has been passed to the various federal circuit courts.

A recent article by Scott Rempell, an Associate Professor at South Texas College of Law/Houston, surveys the landscape with regards to definitions of “persecution.” Prof. Rempell finds that while certain conduct is universally viewed as persecution, there exists “staggering inconsistencies” between the various federal appeals courts: “eleven different appellate courts independently pass judgment on EOIR’s assessments of whether harm rises to the level of persecution—a significant number of spoons stirring the persecution pot.” The study revealed what Prof. Rempell calls an “unequivocal chasm” in the consistency of persecution decisions:

For example, the results [of the study] illustrate how a one-day detention involving electric shock compelled a finding of persecution, while a ten-day detention involving electric shock did not. Similarly, while several weeks of psychological suffering necessarily established persecution, several years of even greater psychological suffering failed to cross the persecution threshold.

To those of us who have litigated these cases in the federal courts, Prof. Rempell’s observation rings all-too true. But quantifying the problem is quite difficult because, as Prof. Rempell notes, the cases are so fact-specific:

Courts… compare and contrast to previous persecution cases. And due to differing opinions on what the harm threshold should be, panels are free to emphasize or deemphasize any factual nuance they choose between the cases that they are reviewing and previous cases they have decided.

Despite this problem, the article attempts to categorize the different types of harm and discern areas of consistency and inconsistency. Prof. Rempell finds five broad areas of consistency–conduct that all courts consider persecution:

(1) Brutal and systematic abuse, where the applicant has sustained harm on a consistent basis over a prolonged period of time; (2) Sufficiently Recurrent Combination of Cumulatively Severe Harms, where there is an ongoing pattern of physical, psychological, and other types of harm, as long as the harms cumulatively establish a sufficiently high level of severity; (3) Recurrent Injury Preceding a Harm Crescendo, where there are multiple incidents of relatively severe harm that culminates in particularly egregious harm; (4) Sufficient Harm Preceding a Substantiated Flight Precipitator, where a series of harmful events culminates in a credible and substantial threat of harm, causing the applicant to flee; and (5) Sufficiently Severe or Recurring Sexual Abuse.

The problem with this list (aside from the fact that I did not give you all the details of the Professor’s analysis) is pretty obvious–we are stuck using words to describe harm, and this is difficult. One person’s idea of “brutal and systematic abuse” may not be the same as the next person’s. Nevertheless, the list gives us the broad parameters of what constitutes persecution in all federal courts.

When the persecution is less severe–as it is in most contested cases–things become even more tricky. Prof. Rempell identifies four areas where the appellate courts produce inconsistent decisions:

(1) A single instance of physical abuse and detention; (2) Psychological harm where there is a single fear-inducing incident; (3) Psychological harm where there are continuous fear-inducing incidents; and (4) “Other Harm Inconsistencies,” where courts looked at similar incidents and reached opposite conclusions concerning persecution.

The disparities between judges and circuits when it comes to determining persecution are stark. For example, the First Circuit (New England) reversed the BIA’s persecution finding in just 5% of cases. The Ninth Circuit (California, et al) reversed the BIA’s findings in 65% of cases.

Prof. Rempell attributes much of the disparity to “the way courts interpret the meaning of persecution, and how they characterize and measure harm.” “The fact that decades of adjudications involving over a million asylum claims have failed to yield a consistent approach on the systematic harm question is nothing short of astounding.” So what’s to be done? 

The article suggests some preliminary reforms, but the bottom line is this: Immigration agencies–and specifically the Board of Immigration Appeals–need to provide “guiding principles” on what constitutes persecution. Of course these inquiries are fact specific, and of course it is difficult to quantify physical or psychological harm, but as Prof. Rempell says, the “fact-intensive nature of persecution inquiries… should not act as a shield to prevent the creation of general severity principles, by means of regulation or adjudication.”

As a lawyer who frequently encounters the question “What is persecution?,” I believe Prof. Rempell’s article is important. He has quantified a problem that we have all experienced in our practice. Now it’s time for the BIA to do something about it.

{ 33 comments… read them below or add one }

indian September 3, 2015 at 10:56 pm

Earlier in this thread you put some points which were confusing me about your views towards LGBT community qualifications for asylum cases.I am a gay male indian who fear of going back to india because of social acceptance for me being single and gay for whole life .There is a lot of stigma involved with it now i can show well founded fear of persecution based on my orientation but i would like to know your thoughts about a general LGBT asylum application .Do you think being gay is a criteria to get asylum in USA ?

Thanks

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Jason Dzubow September 4, 2015 at 6:11 am

I am not sure what comments you are referring to, but LGBT is certainly a basis for asylum (under the protected category “particular social group”). You still need to show that you were persecuted in the past and/or that you have a well founded fear of persecution on account of your being LGBT. Also, that the government of India is unable and unwilling to protect you. But it is definitely a basis for asylum – in fact, we won two LGBT cases last week (from El Salvador and Sudan).

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indian September 4, 2015 at 9:05 pm

is there going to be an issue if my parents want to come to USA to visit me before i get permanent residency thru green card?

also the two asylum cases that you are referring to wheich center they have been filed.?

Can you please share your contact details on my email id rahulvisa2015@gmail.com?

Reply

Jason Dzubow September 6, 2015 at 3:46 pm

If you applied for asylum, it may be more difficult for your parents to get a visa, but it is difficult to predict. If you want to contact me, it is Jdzubow@DzubowLaw.com.

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indian September 7, 2015 at 7:06 pm

sent you an email .

Thapa September 2, 2015 at 10:42 am

Hi Jason,
I applied asylum from Los Angeles office in Aug 2013 and waited 2 years for an interview. Finally the day had arrived on AUG 31 2015, but the first thing the immigration officer did was transfer me to Chicago office since I told her I moved to Minnesota just 3 months back. I know moving creates a lot of problems but I had no option rather than to move. She didnt ask any more question and just transferred the application. My question is will Chicago office treat the transfer as a new application or go by the date I first filed that is Aug 2013. Also, if I move back to California, is there a possibility to ask Los Angeles office to take the case back?
-A frustrated ASYLEE

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Jason Dzubow September 3, 2015 at 5:22 pm

It is really awful that they did that. I do not know whether your case will get priority since you have already been waiting so long. You should email the Chicago office and ask them. Also, I highly doubt that moving back to LA will help you. Good luck, Jason

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na September 3, 2015 at 8:37 pm

it sounds to me that asylum offices are lying (sorry).how in the world he got interview in 2015 when he filed in 2013 ans scheduling bulletin says 2011 ?????????????????????? it matches what i have been hearing from lawyers too . they are going RANDOMLY . please tell me i am wrong

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Jason Dzubow September 4, 2015 at 6:08 am

Prior to December 2014, there was a different policy – some cases were interviewed quickly; others went into the “backlog” and disappeared. I do not know much about LA, but in our local office (Virginia), it seems they are now interviewing cases in the order received, and that should be in the policy across the US.

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ts August 24, 2015 at 2:12 am

Hi Jason,
Thank you for all the info you provide to us. I have questions concerning testimony for asylum. As I prepare for my interview, I am thinking to get a letter of testimony from my brother. My question is, is there regulations on who can testify for you? Am I required to have a personal testimony even if I have evidences from Human right organizations?How big does a testimony help your asylum case? Looking forward to your response
Thank you very much

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Jason Dzubow August 24, 2015 at 6:44 am

This is a question of strategy – for my, I prefer to have letters from HR organizations AND from friends and family members. I once wrote a blog post about “how to write a good witness letter.” Maybe that would help: http://www.asylumist.com/2012/08/16/letters-from-witnesses/

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Tis August 23, 2015 at 5:47 am

Hi Jason I wanted to ask that when will Houston office interview me. I cased asylum in June 2013 and they wrote our case is considered by the director of asylum and I’m getting new fingerprints how much time will take because it sounds like they will interview soon . Please give an answer

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Tis August 23, 2015 at 5:49 am

They wrote that our case is considered on 20 August 2015 and today they said they’ll get new fingerprints

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Jason Dzubow August 24, 2015 at 6:34 am

Houston was moving along pretty quickly, but they have been slow this summer. Hopefully, when summer ends, they will start moving faster and you will get an interview, but in truth, no one can really predict. I did a posting two weeks ago with a link to the government chart that may help you. Take care, Jason

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Stephen Blower August 22, 2015 at 6:48 pm

Hi Jason,

I am a fellow immigration law attorney and I too handle asylum cases. Although I am averse to turning the discussion of a workable asylum definition into something political, I can’t help but muse on the recent comment (and a sentiment echoed by some other people) that “Christians in this country [meaning the U.S.] are persecuted.” These are his words. This came in response to an exchange with known actor and LGBT activist Ellen Page at the Iowa State Fair, who was asking for his response to the discrimination against the LGBT community in the workplace, etc. How or why Cruz got to ‘persecution’ as the other side of the harassment coin, only he knows.
However, of more pressing interest, is this use of the term persecution to describe whatever it is he feels certain people nominally Christian are experiencing in this country in a real sense, unless he is being deliberately hyperbolic. My further thought was, would Cruz support this standard for the granting of asylum to foreign applicants, given this arguably tenuous and loose sense of persecution when compared to the various strands of extremes required of applicants for asylum? If this is the case, then it should be legislated thus. For example, if a baker is compelled to bake a cake for a wedding of persons of the same sex, this amounts to persecution, or an employer is required to pay for health insurance which might cover contraception, and so on. Exactly what kind of frictionless slope of a definition would this lead to for the purposes of defining asylum in the immigration context?
At any rate, I welcome your thoughts on this issue, but more pressingly, that some kind of editorial effort be put forth to counter what I personally feel is a not only a false narrative, but a harmful one, in that it asserts two completely divergent scopes of meaning of a word that is absolutely not to be taken lightly in the immigration advocacy process.

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Stephen Blower August 22, 2015 at 6:50 pm

I see that I inadvertently left out the words “[recent comment] by Ted Cruz” above, I apologize.

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Jason Dzubow August 24, 2015 at 6:25 am

Certainly, such people are not using the term “persecution” in the legal sense (to the extent that there is actually a legal definition of persecution). I have been thinking about this too – every time I see a white many in a $50,000+ SUV with a “Don’t tread on me” license plate (common in Virginia). When people with great privilege lose a small part of that privilege because other, less well-off people are benefiting, it is not “persecution,” it is a movement towards correcting long-standing and unjust inequities in society.

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Stephen Blower August 24, 2015 at 3:11 pm

Well put. Some also have argued, similarly, when individuals use terms such as “reverse discrimination” or “reverse racism,”that it ignores the historical reality of the privileged and dominant culture and the broader issue of oppression which is the context of the systematic abuses. And as you say, when a notion of “preserving white heritage” or “white culture,” or more blatantly “white power” gets bandied about in a political sense, but really as adopted by a culture, I feel it must certainly erode the cornerstone of what true persecution, denial of rights, and asylum really is about, and what we work for.

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Jason Dzubow August 24, 2015 at 4:47 pm

These types of arguments are hyperbolic and kind-of sad. I am not sure why we are so afraid of everything. Taxes go up, it’s persecution. Gay people marry, heteros are persecuted. Brown people get jobs, white people are being persecuted. It really ain’t so bad. I wish these people would just take a breath and calm down. I suppose we live in interesting times…

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burda August 22, 2015 at 4:28 am

Hi Jason
I filed a request I-589 in june 10 and received approve letter june 20
and few days later a make fingerprints and filled in and sent form I-765,But it was a mistake I have to wait 150 days and then send I-765
I think it USCIS cancel my request I-765
Can I send again form I-765 after 150 days??
I do not know what to do now?
Im sorry for my bad English

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Jason Dzubow August 24, 2015 at 6:20 am

Hopefully, they rejected the first I-765 and returned it to you. If so, you should be able to file a new one with no problem (though you need to mention the first I-765 on the form). If not, when you file the new I-765, you will need to explain that you already filed once by mistake and that it was never returned to you. It should be alright either way. Good luck, Jason

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Chris August 21, 2015 at 12:25 pm

Hi Jason i just had my interview in Arlington office the officer told me to expect one of two results either to be accepted or referred to immigration court and he did not mention the recommended approval does this mean that he will refer the case to court?

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Frenky August 22, 2015 at 4:56 am

Hi, Chris. Can you share with us your timeframe, please?

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Jason Dzubow August 24, 2015 at 8:40 am

That is a standard statement they make, it has no implication for your decision. Take care, Jason

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Sali August 20, 2015 at 8:00 pm

Hi Jason,
thanks for you great blogs and valued information
I have filed for asylum from Chicago in November 2014 and completed fingerprints three weeks later. After that I applied for a work permit on May 11, 2015 and after two weeks I received letter from USCIS that they received our application for employment authorization with the receipt numbers . when I checked our cases by entering the receipt numbers in the official website of USCIS and I found this message :” On July 6, 2015, we ordered your new card for your Receipt Number *****, and will mail it to the address you gave us. ” . So more than three months ago passed and until now I didn’t receive the work permit.
when do you think they will send me work permit .
thank you again

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Jason Dzubow August 21, 2015 at 6:36 am

I actually replied to this before; maybe you did not see it. Anyway, it sometimes takes them awhile to send the work permit. I suggest you call USCIS (the number is on their website) to ask for an update. Good luck, Jason

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majun August 20, 2015 at 6:13 pm

The RAIO directorate has most of their training materials posted online and those public lesson modules include the lesson on Persecution (http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/RAIO/Persecution%20LP%20%28RAIO%29.pdf). Full disclosure, I was the initial drafter for the module that is currently online, combining training materials that were developed independently by the asylum and refugee divisions, for use in a combined training of asylum and refugee officers.

The lesson module will explain how USCIS RAIO wants persecution analyzed in the affirmative context. You may find it helpful and then again you may not. Even though I am retired now, I would still appreciate any comments.

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Jason Dzubow August 21, 2015 at 6:34 am

Thank you for that – It is a very useful guide, and it seems to me to support Prof. Rempell’s arguments in that different federal courts have different definitions of persecution, which are sometimes hard to reconcile. Of course, this makes the job of the Asylum Office or other decider more difficult. The BIA has of late been trying to clarify certain long-standing problems (like domestic violence as a basis for asylum and the definition of particular social group), and so I hope they address the issue of “persecution” and provide more guidance.

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Mina Eskander August 20, 2015 at 11:49 am

What if there is known pattern against specific minority group “as in my case” based on religious beliefs, and while an actual harm was not done, a continuous threat was made, tearing and weaning, but continuous, does that qualify?

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Jason Dzubow August 21, 2015 at 6:14 am

It might – If you can demonstrate a “pattern and practice” of persecution against your group, and that you are a member of the group, you can get asylum. The classic case is a Jew in Nazi Germany, or a Tutsi in Rwanda during the genocide.

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Mina Eskander August 25, 2015 at 2:42 pm

Thank you

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Bob August 18, 2015 at 6:56 pm

What about a “well-founded fear” standards? Does one have to show brutal past abuse in order to prove fear?

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Jason Dzubow August 19, 2015 at 8:30 am

Most of my cases do not involve past persecution, but there is a well-founded fear of future persecution. The article is examining cases where there was past persecution and shines a light on the great disparity of interpretations of “persecution.”

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