How to Demonstrate Credible Fear Based on a “Protected Ground” in Asylum Proceedings

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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To be granted refugee status in the United States, applicants must show a credible fear of returning to their home countries on account of a protected grounds, such as religion, nationality, and membership in a particular social group. The rather nebulous category of social group can include anything from sexual orientation to political involvement in a censured party. The applicant must not only carve out this group, but also show past persecution on account of his or her membership in it.

Showing Past Persecution

Most applicants focus on their credible fear of returning to their home countries based on various incidents of mistreatment or discrimination by other citizens or the governing party. Fear alone, however, even if credible, is not alone enough to sustain a finding of past persecution.

Immigration judges will consider the current political climate of the country in question and determine that the government either no longer tolerates the kind of treatment the applicant alleges, or is making good-faith efforts to stop the said persecution. Even if the country was in complete turmoil, with a raging civil war, rampant gang activity, and corrupt or non-existent elections, state department reports usually steer the immigration judge toward finding that the often-harrowing incidents of rape and loss reported by immigrants were isolated incidents of violence that did not rise to the level of past persecution.

For this reason, it is incumbent upon applicants to ensure that declarations and affidavits in support of their claim focus not only on the events demonstrating past persecution, but rather how these incidents were based on a protected ground. For example, one who was arrested, interrogated, and roughed up for activity in a political group that opposes the ruling party has a more plausible claim than one who lost various family members to gang violence. This is not because one has suffered more than the other has, but because one applicant has shown a better nexus under governing law between past persecution and involvement in a particular social group.

Cases governing asylum in the United States have repeatedly held that refusal to join in gang activity did not in and of itself constitute membership in a particular group. Judges also perceive gang killings as random acts of violence that the government does not condone, but does its best to control. As such, standing up to a very dangerous group of violent criminals who collectively wield more power than the governing party still does not yield a colorable asylum claim.

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Active Involvement in Political Organizations

On the other hand, applicants who show genuine activity in a political organization have a better chance at being granted status. This is because they have a less tenuous relationship between their experience of past persecution and the political opinion that triggered it.

In order to show membership in a particular social group, the applicant should actually belong to an organization and participate in its events. One group, for example, might be homosexuals who join with other lesbian, gay, bisexual, and transgender groups in a national rally to demand equality and tolerance. Another might be a political organization that opposes the corruption of the incumbent regime and holds a rally demanding a halt to ballot-stuffing and unfair elections.

Whatever the group, it is helpful to demonstrate tokens of allegiance, such as a card, pin, or piece of paper, even if these objects had to be kept hidden in the persecuting country. It is also helpful to participate in the weekly meetings and events sponsored by the group, going so far as to continue membership in the United States if a similar group is available here. Even if it is impossible to provide records of every event, active members can often recall the general format of every meeting and what was discussed. They are also passionate about the mission of this group and consequently participated in its sponsored events, even if it was at the risk of being arrested or imprisoned. Successful applicants will often have been arrested during their participation in anti-government rallies calling for the President’s resignation or in meetings with other members who appear on a death list given to government thugs. They can prove they belonged to this group by their allegiance to and knowledge of its objective, not merely because it landed them in jail. Such membership might not win many friends in the home country, but makes a good case for asylum in the United States.

Unsuccessful applicants who show active involvement in a political or social group at the trial level also have a better case on appeal. After all, one who suffers past persecution on account of membership in a particular social group evidences a credible fear of returning to more of the same.

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