Political Asylum

Am I eligible to seek asylum because I was harmed or persecuted for my political beliefs?

 

If you are seeking basic information on eligibility for asylum, and you haven’t yet read our article: Who is eligible for Asylum?, We highly encourage you to first read that article before reading this one. Assuming you have already read that article, and you are interested in gaining more information on political asylum and asylum eligibility based on past harm; or feared future harm relating to your political beliefs, you should read on.

One of the basic requirements to be eligible for asylum is that you have either been: harmed in your home country, or fear that you will be harmed if you are sent back to your home country (or country where you last lived–if you do not have a nationality). AND,  this harm that you faced, or the harm you believe you will face if you are sent back, is because of something that is either: impossible for you to change about yourself, or because of something that you shouldn’t have to change about yourself.

One of these categories of eligibility is if the harm you faced, or the fear of future harm is based on your political beliefs or political opinion. * This political opinion criteria can be rather hard to understand and characterize. The first requirement is that:

Political Opinion” is the language used in “Act 208-Asylum” from the Immigration and Nationality Act, available here

1. You have or have had  a “Political Opinion” regarding some aspect of the governance, state, or police policies of your home country (or country where you last lived if you don’t have a home country); OR, be thought to have had an opinion by the persecutors (people who harmed you or people who you believe will harm you).

The United States Customs and Immigration Services office has taken a rather broad view on political opinion for asylum. The opinion can be on anything related to the workings of the government, the state and the police. It also does not have to be directly governmental or political. Opinions on feminism and fundamental rights of people and workers have been found to qualify. So for example if you yourself are not a member of the gay or LGBT community, but you believe that members of that community should have basic fundamental rights as other people in your country, that is a political opinion.

Political opinions do not mean formal political activity. You do not need to have been active politically in formal political activities. You can have a political opinion about something and express it with words, or actions such as: being a member of certain labor organizations, having protested for certain causes, making certain art or poetry, or having exposed governmental corruption.  

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In some cases you do not even have to have an opinion, if the persecutor (person who harmed you or who you believe will harm you), believes you to have a political opinion. This can be a very hard thing for people to conceptualize, so an example might be best. Let’s say that you were working as a secretary for a prominent politician. You worked for the politician simply because you needed the money and you yourself were indifferent to politics, and you didn’t share the political views of your politician employer. If extremist members of the opposing political party (the one your boss was not aligned with), started to harass you and your family daily and did something to harm you because they believed you were politically aligned with your boss, that would be an “imputed political opinion.” It’s considered imputed because it didn’t really exist, the persecutors just thought it did and that’s why they harmed you. Now let’s say in the example above, you actually shared the same political beliefs as your boss, but you didn’t do anything to display that opinion and you were still harmed. This could still be considered an imputed opinion for purposes of asylum law. Another example, is if you are a politically indifferent member of an important family and a persecutor harms you because they believe you hold the same opinions as people in your family whom they don’t agree with politically.

These are relatively rare cases, but nevertheless, asylum law protects imputed political opinions under some circumstances. So to summarize these ideas into a concrete requirement: to be eligible for asylum on the basis of political opinion, the  applicant must have or have had a political opinion (could be imputed).

NOTE- the Particular Social Group category for asylum seekers is very broad. If you are unsure if you qualify, please see the article on the Particular Social Group for more detailed information and the types of groups that have historically been found eligible.

 

The second requirement is that:

2. The Person who harmed you, either: knew about your actual political opinion, or, believed you had a political opinion (imputed political opinion). The burden here is on the asylum applicant to show this.

The third criteria for an asylum application on the basis of Political opinion is the harm or persecution requirement that underlies all asylum applications:

3. You were harmed because of your “Political opinion,” or because of the opinion you were “imputed,” or believed to have had. OR, you believe you will be harmed if forced to return to your home country because of your political opinion, or one that you’re believed to hold.

Asylum law is very complex and the Appeals’ Courts of the United States that handle asylum appeals, very often disagree on precise definitions for asylum terms such as what constitutes “Political Opinion” or what constitutes a “Particular Social Group.” One thing that all Appeals Courts must agree on however, is the fact that the asylum applicant seeking asylum on the basis of political opinion must have been harmed because of THEIR POLITICAL OPINION, not because of the opinion of the persecutor (person who harmed them).

This is because the supreme court in a very infamous 1992 case called INS v. Elias-Zacarias, declared that the persecutors political opinion is irrelevant. To summarize the sad example the court provided in this case–because of their interpretation of the asylum law, if a Nazi-style regime persecutes or harms a Jewish Individual because the Nazi regime politically believes that all Jewish people are bad, that doesn’t matter for the Jewish person seeking asylum on political opinion grounds. That unfortunate individual may well have an asylum case based on religious persecution or based on being a member of a particular social group, but they won’t have one based on political opinion because the jewish person was not harmed because of their political opinion. Rather, they were harmed because of the Nazi regime’s political opinion and the fact that they were Jewish. This can be a hard difference to understand and it is quite legalistic, but it is important that the asylum applicant can provide substantial evidence of this when making their claim. The burden will be on the applicant not the government, so it is important to think about this when petitioning for asylum.

With that, you have the basics of who is eligible for asylum based on political opinion. However, it is important to emphasize that this area of the law is incredibly nuanced, complex, and there is simply no substitute for the assistance and help of an experienced Immigration Attorney when making an asylum claim based on political opinion. Finally, there are a few additional considerations to keep in mind about political opinion that may be applicable to your specific case.

 

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Political Opinion and Particularized Social Groups can overlap:

Occasionally an asylum seeker can base their application on both persecution based on political opinion and the particularized social group of which they are a member. For example, if a person is persecuted because of a political opinion that the persecutor believes every person in their social group holds, then that is an example where the two can factually overlap. Legally, under United States law, Political Opinion and Particular Social Groups are separate grounds for achieving asylum eligibility. However they can be related and you may have both grounds available to you as a viable claim for asylum depending on your particular circumstances. If you haven’t yet read our article on claiming asylum based on particularized social groups, we encourage you to do so.

The Grounds for General Asylum Ineligibility could still make you ineligible

Despite the fact that you may appear to have a very good and viable asylum claim based on persecution for Political Opinion, it is important to understand that you may still be ineligible for asylum due to one of the many standard ineligibility grounds. You should read our article, Who is Eligible for Asylum? and/or, seek the advice of an experienced immigration attorney for more information on ineligibility.

Sources:

Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, and Ronald Y. Wada, Immigration Law and Procedure, § [sec. 3304] (Matthew Bender, Rev. Ed.).

“Act 208-Asylum” from the United States Immigration and Nationality Act, available here

 

INS v. Elias-Zacarias, 502 U.S. 478 (U.S. Jan. 22, 1992)

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