New York Lawyer's Legal Updates

Asylum Seekers: The Standard Of Proof For Persecution

Author: US Asylum Lawyer Alena Shautsova

Asylum seekers claim in the US has a burden of proof to demonstrate that she/he was subjected to persecution and/or she/he possess a reasonable fear of future persecution. What amounts to a persecution? It must be noted that in some cases, a lay person would determine that defiantly an applicant deserves asylum, but the judges may have a different opinion.

In a recent case La v. Holder, an asylum seeker left Cambodia after she received anonymous phone threats about harm to her family; subsequently, her husband was killed. Despite the fact the US government was able to verify the authenticity of the death certificate of woman’s husband, the court found that she failed to demonstrate past persecution! Now, she will be removed to her country.

But how about if it is an applicant himself/herself who sustained harm? Well, the case law does state that even where an applicant sustained bodily injury, if the injury is minor she/he is not entitled to asylum, see Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011); Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). The law also states that absent serious physical harm, ridicule, discrimination and threats constitute mere harassment, Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341 (2d Cir. 2006).

Very often the government persecutes future asylum seekers by depriving them of a source of income. The case law states that the economic deprivation has to be so severe that it threatens lives or freedom of asylum seekers. see Matter of T-Z-, 24 I. & N. Dec. 163, 170-71 (BIA 2007).

As the cited cases demonstrate, it is very important for an asylum seeker to consult with an experienced immigration attorney before filing its claim, and make sure she/he will not just waste his time and “get stuck” in immigration system for years without a chance of ever winning.

30 December 2012
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