8 Persecution has also frequently been defined as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” 9 Persecution is usually physical but can also be emotional or psychological. 6 3.1 Well-founded Fear of Persecution 3.1.1 Definition of PersecutionĪlthough persecution is not specifically defined within the INA, the courts have held that “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.” 7 The United Nations High Commission on Refugees (UNHCR) has endorsed a similar standard in its Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. 4 The Board of Immigration Appeals (BIA) “not only encourage, but require the introduction of corroborative testimonial and documentary evidence, where available.” 5 Testimony, however, can be sufficient to sustain the applicant’s burden of proof if the testimony is credible. 3 The applicant is required to testify under oath regarding the truth of their application in order to meet this burden of proof. The applicant bears the burden of proof of establishing that they fall under this definition of refugee. The elements of an asylum claim based on sexual orientation, gender identity, and/or HIV status are (1) a well-founded fear of persecution (2) based on past persecution or risk of persecution in the future if returned to the country of origin (3) because of the applicant’s membership in a particular social group (PSG) wherein (4) the persecutor is a government actor and/or a non-governmental actor that the government is unwilling or unable to control. “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 1 In order to be eligible for asylum, an applicant must meet the definition of refugee in the Immigration and Nationality Act (INA). You should always consult an attorney regarding your matter. The information contained herein is for reference only and may not be up to date.
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