How Much Persecution Is Enough To Qualify For Asylum?

166430_isole_nel_mediterraneo_prison.jpgHow much torture or other mistreatment must you show in order to qualify as having been “persecuted” as defined in the immigration law? The answer is that it would seem there really is no bright line definition. Rather, a foreign national’s asylum case could likely depend upon the subjective opinion of what a government official thinks persecution does or doesn’t mean. When presenting an asylum case, don’t simply rely that a government official will sympathize with your situation. It is necessary to properly research similar successful cases in order to have a strong case.

For a foreign national to be eligible to be granted asylum in the United States, the person must establish that he or she has suffered past persecution as a result of membership in one of a number of protected groups that include race, religion, nationality, particular social group, or political opinion.

The legal standard to establish “persecution” for purposes of asylum is that persecution is an “extreme concept” and requires “more than a few isolated incidents of verbal harassment, intimidation and accompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.” But what does this really mean? One person’s concept of what is “extreme” or “significant” may be entirely different from that of another person.

An example of this is illustrated in a recent case decided by the US Court of Appeals for the 11th Circuit in Shi v. US. In this case, the Petitioner Jiaren Shi was originally denied asylum by the Immigration Judge (IJ) on the basis that he had not established that he had suffered past persecution. The IJ’s decision was also affirmed by the Board of Immigration Appeals (BIA).

The facts of the case are these. Mr. Shi, a Chinese national, presented testimony that he was arrested in China for attending Christian church service at his father’s home. He testified that he was held by police for seven days, interrogated, subjected to physical abuse, and warned not to be involved in such “illegal meetings” in the future. He testified that while in custody, police slapped his face, kicked his chair out from under him, and threatened to beat him with a baton. He testified that after one interrogation session, police handcuffed him to an iron bar outside and left him there overnight in the rain, after which he became ill for days.

The IJ and the BIA determined that these acts did not rise to the level of persecution required to establish an asylum case. The US Court of Appeals disagreed and reversed. In its opinion, the Court of Appeals did distinguish the facts of the case from other cases in making its determination. The court said that while the court has declared in previous cases that a short period of detention combined with some physical abuse was not sufficient to be deemed persecution, this finding was not made in cases where detention lasted as long as a week.

However, a reading of this case seems to show that the court did not base its ruling on a bright line test of the how long the detention was. Rather, the court simply restated Mr. Shi’s story about what happened, and then determined that such a fact pattern did rise to the level of persecution required. One distinction the Court did make is that it seemed to imply that the IJ and BIA did not look at the totality of the circumstances, and that when all the facts are taken as a whole, such a fact pattern is persecution when compared with previous court decisions.

A government official may not be impressed with the mere fact that an asylum applicant was physically abused and detained by police as a result of his or her religious belief. That government official may agree that it is bad, but may not agree that is “extreme” enough to be called persecution. Don’t rely on the subjective opinion of a government official. Do your legal research and come prepared to show that other cases similar to yours have been decided in your favor.

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