Asylum, Refugees and the Convention against Torture

The United States provides several forms of relief to refugees, or individuals fleeing persecution in their home country. The legal framework governing refugees derives principally from international law and has been implemented in statutes and regulations. It is the principal means by which those fleeing persecution or torture in their home countries may seek safety and possible resettlement in the United States or a third country.

Refugees may be divided into two general categories: (1) those individuals who are still outside the United States but who are seeking to resettle in the United States or another nation that receives refugees (know under U.S. law as ‘‘overseas refugees’’); and (2) those individuals who have been able to reach the United States on their own and who are seeking to remain in the United States or to avoid return to their country of origin for fear of persecution (known under U.S. law as ‘‘asylum seekers’’). The same definition of a ‘‘refugee’’ applies to both categories.

The definition of a refugee derives from the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees. The 1951 refugee convention was drafted in response to atrocities that took place in Europe following World War II and was limited in both time and duration. The 1967 protocol sought to expand the protections of the 1951 convention to refugees worldwide without temporal limitations.

A refugee is defined as an individual who is outside his or her country of origin due to ‘‘a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion.’’ Civil war or other internal strife does not provide a basis for establishing refugee status, unless the individual is fleeing persecution based upon one of the five protected grounds. An essentially identical definition of refugees is contained in the Refugee Act of 1980. The prohibition against returning refugees to countries where they would face persecution is known as the principle of nonrefoulement.

Persecution does not have a precise definition; it includes a wide range of harms and is not limited to threats to one’s life or freedom. An applicant for asylum may establish a well-founded fear of persecution based upon persecution that occurred in the past or based upon a fear that persecution might occur in the future, as long as that fear is well founded. The Supreme Court has said that a person’s fear is ‘‘well founded’’ if the chance of persecution is one in ten (INS v. Cardoza–Fonseca, 480 U.S. 421, 1987). An asylum applicant, however, must show not only that the fear of persecution is well founded but also that the persecution is on account of one of the five protected grounds. Thus, an asylum applicant must produce evidence of a persecutor’s motives and not just evidence of persecution. The applicant, moreover, must show that this persecution is on account of the applicant’s political opinion or other protected characteristic and not the persecutor’s (INS v. Elias– Zacharias, 502 U.S. 478, 1992). This ‘‘nexus’’ requirement prevents people who fear harm or even death from establishing refugee status absent a sufficient connection to one of the five protected grounds of the refugee definition.

Of the five protected grounds, membership in a particular social group is the most fluid. It was designed to include categories of people who should be protected as refugees but who did not fall within one of the other four categories. A ‘‘particular social group’’ has been defined to include individuals who ‘‘share a common immutable characteristic,’’ whether it is innate (like kinship ties) or based upon shared past experience (Matter of Acosta, 19 I. & N. Dec. 211, BIA 1985). Over the years, this category has been expanded to include members of certain clans, homosexuals, and women subject to female genital mutilation.

To qualify for asylum, an applicant must also establish that he is not subject to one of the statutory bars to relief, which range from convictions of certain crimes to the failure to apply for asylum within the mandated deadline. Once an individual has demonstrated his eligibility, asylum may be granted at the discretion of the agency. After an individual is granted asylum, he has the opportunity to apply for permanent residence. While in theory there is no limit to the number of individuals who may be granted asylum, in practice that number generally does not exceed fifteen thousand annually.

A second form of relief under U.S. law is known as withholding of removal, which implements the United States’ duty of nonrefoulement under the refugee convention. As for asylum, an individual must demonstrate that he or she meets the definition of a refugee. But to qualify for withholding of removal, an applicant must meet a higher standard of proof and show a clear probability of persecution or that the persecution would be more likely than not to occur (INS v. Stevic, 467 U.S. 407, 1984). Unlike asylum, withholding of removal is mandatory for those who qualify.

A third form available to those fleeing persecution is based on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (commonly referred to as CAT). An individual need not meet the definition of a refugee to qualify for relief under CAT and its implementing regulations. Instead, he must show that it is more likely than not that he would be tortured if he were returned to the country from which he seeks protection. The definition of torture includes physical and mental harm, as long as that harm is intentionally inflicted and sufficiently severe. It is absolutely prohibited to return an individual who qualifies for relief under CAT. CAT has thus become an increasingly important form of relief as other avenues of obtaining relief from removal have been curtailed, particularly for individuals with criminal convictions. Unlike asylum, however, CAT provides only temporary relief from removal and does not provide a basis for obtaining permanent residence in the United States.

JONATHAN L. HAFETZ

References and Further Reading

  • Anker, Deborah E. Law of Asylum in the United States, 3rd ed. RLC Publications, 1999. 
  • Goodwin–Gill, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1998. 
  • Hathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991. 
  • Hughes, Anwen. Asylum and Withholding of Removal—A Brief Overview of the Substantive Law. New York: Practicing Law Institute, 2005. 

Cases and Statutes Cited

  • INS v. Cardoza–Fonseca, 480 U.S. 421 (1987) 
  • INS v. Elias–Zacharias, 502 U.S. 478 (1992) 
  • INS v. Stevic, 467 U.S. 407 (1984) 
  • Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) 
  • Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) 

See also Aliens, Civil Liberties of; Noncitizens and Civil Liberties

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