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Humanitarian Asylum – Applicant Needs to Demonstrate only Long Lasting Physical or Mental Effects of Persecution

Posted by Gutierrez Law Firm on May 17, 2013

Contributed by Lauren Williams, staff writer at King Law Offices, Greenville SC

Disclaimer: This article is not intended as legal advice and does not reflect the opinions of the Gutierrez Law Firm.

Asylum is available to an alien who is unable or unwilling to return to her 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. An alien bears the burden of proving eligibility for asylum. An asylum applicant who demonstrates that he was the subject of past persecution is presumed to have a well-founded fear of persecution. Persecution includes the convincing threat of death, torture, or injury to one’s person or liberty on account of a protected ground. An alien can establish a well-founded fear of persecution on a protected ground without regard to past persecution.

Humanitarian asylum is a type of discretionary relief that is granted to asylum seekers who cannot show that they have a well-founded fear of persecution but who have established that there is a reasonable possibility that they may suffer other serious harm upon removal to the applicant’s country of nationality. See 8 C.F.R. § 1208.13(b)(1)(iii)(B). The asylum applicant carries a difficult burden in attempting to establish persecution under this method than he would if he could establish a well-founded fear of persecution. To qualify for a humanitarian grant of asylum, the applicant must show such intense past persecution that returning to his country would be cruel. This is a difficult burden indeed.

Recently, the United States Court of Appeals for the Second District reversed the order of Board of Immigration Appeals (BIA) in Zi Bin Pan v. United States DOJ, 476 Fed. Appx. 953 (2012) and remanded the case to BIA for further proceedings holding that BIA improperly applied heightened standard applicable to claims for humanitarian asylum. In this case, the alien was a native and citizen of Republic of China and he suffered minor injuries during his brief detention based on his other resistance to China’s family planning policy. The Immigration Judge (IJ) determined that the alien failed to prove past persecution as persecution required that the injury was severe and long-lasting. The Court of Appeals held that the alien is required to show only long-lasting physical or mental effects of his persecution to be eligible for humanitarian asylum.

Petitioners can request humanitarian asylum, which may be granted in the exercise of the decision-maker’s discretion. To avail humanitarian asylum, the applicant must establish either (1) there are compelling reasons for being unwilling or unable to return to the country arising out of the severity of past persecution or (2) there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country. The favorable exercise of discretion is warranted for humanitarian reasons even if there is little likelihood of future persecution. Victims of past persecution should in some cases be treated as refugees or asylees even when the likelihood of future persecution may not be great. When evaluating whether to grant humanitarian asylum, an immigration judge normally considers, in addition to the likelihood of future persecution, all other factors, both favorable and adverse.

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