Over the past few years, there have been a number of deadly and horrific attacks against Jewish people in Europe. Targeted by radical Muslims, Jews have been murdered in a Kosher market, outside a synagogue, and at a Jewish daycare facility. They have been targeted for attack at a Jewish Community Center, and there have been hundreds of lesser (but still frightening) instances of anti-Semitism.
In response, some (non-French) Jews have suggested that there is no future for Jews in Europe and that they should leave. On one level, this suggestion is based on genuine concern. But on another level, it is quite insulting. It’s as if an African leader came to the U.S. and told American blacks that—in light of Ferguson, Treyvon Martin, and Eric Garner—they should abandon their homeland. My feeling is that a French Jew, an African American, or any other put-upon individual should have the right to make his own decision about whether to leave his country. Unless and until he decides to go, we should do everything possible to help him stay.
Here, however, I am concerned not with the existential issue of European Jewry. Rather, I want to discuss a more narrow question: Whether a French Jew–and I am choosing France because that country has seen the most instances of anti-Semitism–could qualify for asylum under U.S. immigration law.
Asylum decisions are highly dependent on the specific facts of each case; so it is difficult to answer this question in the abstract. However, we can look at general country conditions to get an idea for whether an individual might qualify. Also, where there is a “pattern and practice” of persecution against a specific group, and the asylum applicant demonstrates that she is a member of that group, she can receive asylum (for example, during the 1994 genocide in Rwanda, if an asylum applicant demonstrated that she was Tutsi, she could receive asylum).
To demonstrate a “pattern and practice,” the applicant would have to show that the persecution is systemic, pervasive or organized. Although radical Muslims have attacked Jews in France on several occasions, and the unpredictable nature of the attacks makes everyone feel vulnerable, I think the problem is not systematic, pervasive or organized enough to qualify as a “pattern and practice” of persecution under U.S. asylum law. The recent attacks have been by individuals or small groups; not (as far as we know) the systematic work of an organization. There is a much more widespread problem with harassment, threats, and vandalism. These problems–while frightening–probably would not constitute “persecution” as that term is generally understood. For all these reasons, I believe that a French-Jewish asylum seeker would have a hard time proving that Jews in France suffer from a pattern and practice of persecution.
In the absence of such a pattern and practice, our theoretical French Jew would need to show that he faces a reasonable fear of persecution based on his religion (or other protected ground). If the persecutor is not the government—and here, it is not—he also must demonstrate that the government is unable or unwilling to protect him.
First, it seems clear that the Jews who have been targeted were targeted because they were Jews. Persecution on account of religion is a basis for asylum. So the real question is whether there is a reasonable likelihood of persecution.
Courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average French Jew would be able to show that he faces a 10% chance of persecution. There are nearly half-a-million Jews in France, and only a small number have been harmed. And even in countries with much higher instances of violence–Iraq and Syria, for example–a person can generally not qualify for asylum without an individualized threat. Although the average French Jew would probably not meet this standard, some Jews–those who have received specific threats or who hold high-profile positions, for example–might be able to prove that they face a likelihood of harm.
If our theoretical French Jew demonstrates a likelihood of harm, the next question is whether the government of France is able and willing to protect him. While there are surely people within the French government who do not like Jews, the French government as a whole clearly wants to protect Jewish people. After the Kosher supermarket and Charlie Hebdo attacks, the government deployed thousands of troops to protect Jewish sites. But given the nature of the attacks (random and against soft targets), there is a good argument that the government of France is unable to stop the terrorists.
In the end, it seems that most French (or European) Jews would not qualify for asylum, but some might: Those who have received threats or who are high profile, and who their governments–unfortunately–cannot protect.
