Birdsong's Thoughts on Analyzing Persecution in Asylum Claims

The following Birdsong thoughts on anlayzing persecution in asylum claims may  be useful to students in the Barry Law Refugee and Asylum Law seminar.


A.     Persecution

            Problems and inconsistencies prevail in asylum adjudications for a number of reasons, including lack of definition for certain statutory words.  Under both asylum and withholding of deportation, the claimant must show that she has been “persecuted” in the past or will be “persecuted” in the future if forced to return to the country of origin.[1] Unfortunately, the statutes do not offer a definition of “persecution.”[2]  The Ninth Circuit has utilized a broad definition of persecution as: “the infliction of suffering or harm upon those who differ…in a way regarded as offensive.[3] The First Circuit has held that a brief detention on several occasions did not rise to the level of persecution.[4]  Rather persecution “encompasses more than threats to life or freedom, but less than mere harassment or annoyance.”[5]

             The Third Circuit limits persecution to “threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.[6] The Ninth Circuit reminds us that persecution must be inflicted either by the government or by groups that the national government was unwilling or unable to control.[7] Where the source of the persecution is personal hostility, it is considered outside of the realm of persecution for statutory purposes and asylum is denied. [8] This limitation on persecution may be particularly disadvantageous to women who are victims of gender violence in cultures were conditions for many women are “generally harsh,” and their basic rights are likely to be violated.[9]  Such was the  situation in the aforementioned case of Deqa Ahmad Haji Ali, the Somali woman who was raped by militia men from a rival clan who also shot and killed her brother in law.  The IJ denied her request for asylum on the ground that such persecution was not a result of Ali’s political opinion, but was instead a routine rape and burglary in a lawless country that has no functioning civil government.

            Analysis of persecution requires IJ’s, the BIA, and the courts to decide  the motive of the persecutor.  The Supreme Court held in Elias-Zacarias v. INS[10] that  a claimant is not required to provide direct proof of the persecutor’s motivations, but a claimant must produce some evidence of the persecutors’ motive whether direct or circumstantial. Yet, the question remains does persecution require a punitive intent?  Circuit courts have split on this question of “punitive intent.”  It is a very important question when analyzing claims of asylum by sexual minorities.  The Ninth Circuit has decided that a broader standard than mere intent to punish should be utilized in sexual minority cases.[11]

            1.  Punitive Intent: The Ninth Circuit

            In 1992, Alla Pitcherskaia,[12] a thirty five year old, Russian national, claimed political asylum in the U.S. on the ground that she was persecuted in Russia because she was a lesbian.[13]  In her trial she recounted that she had been arrested several times for such things as failing to procure required permits for a gay-rights protest.[14]  She suffered further harassment including forced psychiatric counseling to “cure” her homosexuality.[15]  Her claim for asylum was denied.  On appeal to the BIA, her claim was again denied on the ground “that even if her credibility is essentially credible,” she had failed to meet her burden in establishing eligibility for relief under the Act.[16]  The BIA majority concluded that Pitcherskaia had not been persecuted because, although she had been subjected to involuntary psychiatric treatments, the militia and psychiatric institutions intended to “cure” her, not to punish her, and thus their actions did not constitute “persecution” within the meaning of the Act.[17]

            The issue on Appeal to the Ninth Circuit was whether the INA requires an applicant to prove  that the persecuter “harbored a subjective intent to harm or punish when persecuting the victim.”[18] The court found that the BIA interpretation of persecution to be arbitrary, capricious, and manifestly contrary to statute which allowed the court to overrule the BIA  definition and impose another.[19]  The court noted that neither  the Supreme Court nor the Ninth Circuit had ever required an asylum applicant to show that her persecutor had the intention of inflicting harm or punishment.[20]  The court found that the term “punishment” implied that the perpetrator believed the victim did some wrong or committed a crime.  As a result, the perpetrator took action in retribution.[21]  Persecution, on the other hand, only required that the  persecutor caused the victim suffering or harm.[22]  Although many asylum cases involved situations where the persecuter had a subjective intent to punish, the court concluded that punitive intent was not required in order to establish persecution.[23]  In clarifying the new legal standard the court stated that the definition of persecution is objective.[24] The court reversed the BIA and remanded the case to the BIA for reconsideration in light of the opinion.[25]

2.      Punitive Intent: The Fifth Circuit

                     Although the Ninth Circuit’s definition of persecution appears reasonable, disagreements exist among the circuits regarding the legal issue.[26]  In Pitcherskaia the Ninth Circuit recognized persecution as the infliction of suffering or harm in a way regarded offensive to a reasonable person, the Fifth Circuit finds persecution only when the perpetrator act with intent to punish the victim.[27]  In Pitcherskaia the Ninth Circuit expressly rejected the Fifth Circuit’s punitive intent required as adopted in the Fifth Circuit’s 1994 decision in Faddoul v. INS.[28]

                     Joseph Faddoul, a thirty three year old man of Palestinian ancestry who was born in  and raised in Saudi Arabia, alleged that he was persecuted by the Saudi Arabian practice of jus sanguinis, granting citizenship rights only to residents of Saudi Arabian ancestry.[29] He alleged further that as a non-citizen living in Saudi Arabia he would be unable to own property or businesses or attend university and as a result this constituted persecution.[30]  The Fifth Circuit affirmed  the BIA denial of Faddoul’s  asylum claim and held that persecution required both a showing of the infliction of harm and intent to punish on one of the five protected grounds set out in the statute.[31]  In Faddoul the court noted that he received the same rights and was subject to the same discrimination as a Saudi born Egyptian.[32]  The court found no evidence that Faddoul had ever been arrested, detained, interrogated, or harmed because of his ancestry.[33] This distinction in definitions of persecution may be especially important to sexual minorities.  In many countries LGBT persons may be abused because of their sexuality, yet, the specific intent to punish is not always present, as in Pitcherskaia.[34]


      3.  Punitive Intent: The Seventh Circuit

                     The Seventh Circuit has adopted a position that may lie between the Fifth and Ninth Circuits.  In Sivaainkaran v. INS,[35] the court ruled that as an asylum claimant could demonstrate persecution by a showing of either the persecutor’s motivation to punish or, more generally, the infliction of harm for one of the five protected grounds of the statute.[36] The specific use of the term “punishment” suggests that, for the second requirement, “infliction of harm” punitive intent is not required.[37]  The Seventh Circuit’s definition comes from a 1970 case in the Sixth Circuit, a jurisdiction that has yet to address the question of punitive intent and uses the Webster’s Dictionary definition of persecution.[38]

                     Future consequences of decisions such as the one to reverse Pitcherskaia’s BIA denial of asylum must be taken into account.[39]  Nations have human rights laws to protect their citizens, as well as the citizens of other nations.  If people were able to circumvent these laws by simply stating that they were “curing” someone to correct what they saw as a problem, such laws would be useless. [40] If nations were allowed to torture their own people to “cure” sexual orientation, it is impossible to know where the line will be drawn.[41]  The inclusion of a punishment requirement in the determination of whether there should be a grant of asylum based on persecution should not be feasible in all circuits.[42]


B.     Lack of Precedent and Published Opinions

         The lack of published decisions by United States IJ’s tend to make any analysis of trends within the system problematic.  Review of asylum decisions based on sexual orientation and gender based violence against women at the BIA, which does not publish a significant number of decisions, indicated that the decisions in the United States display significant variation.[43]  Both the claimant and the government can appeal an IJ’s trial decision to the BIA.[44] The Attorney General of the United States is authorized to assign as precedent or overrule any decision made at the BIA level.[45]  The claimant can then appeal directly to the relevant federal circuit court, whose decision will be binding on the BIA in that circuit.[46]

            The EOIR is authorized to publish its decisions selectively and thereby establish precedential value for individual BIA level rulings at its discretion.[47]  Few BIA decisions are released.[48]  One scholar has reported that only about fifty of the four thousand decisions made each year by the BIA are actually published.[49]  A vast majority of these published cases are decisions where asylum is denied, making it nearly impossible for the claimant, or the IJ, to discern clear standards necessary to establish a successful asylum claim.[50]

[1] See, Farrone, Opening the Doors, supra, note 2  at 672.


[2] See, INA  101(a)(42)(A), 8 USC 1101(a)(42)(A), and INA 241(b)(3)(A), 8 USC 1231(b)(3)(A).



[3] See, Farrone, Opening the Doors, supra, note 2 at 672, citing Desir v. Ilchert, 840 F.2d 723, 726-27.


[4] Id at 673, citing Fesseha v. Ashcroft, 333 F.3d 13, 19 (1st Cir 2003)  In this case the woman was only detained, not imprisoned, was held for only twenty-four hours, and was never harmed.

[5] Id.

[6] Id, citing Fatin v. INS 12 F.3d 1233, 1240 (3d Cir, 1993). In this case Fatin was an American educated Iranian woman who feared persecution if she was deported to Iran because she did not want to have to cover herself in chador in order to go out in public.

[7]  Id, citing McMullin v INS, 658 F.2d 1312, 1315 (9th Cir. 1981)

[8] Id.

[9]  Id.

[10]  502 U.S. 478 at 483-84 (1990).

[11] See, Saxena, More than mere Semantics, supra, at note 10 at 346.

[12]  See, Pitcherskaia v. INS, 118 F.3d 641, 643 (1997).

[13] See, Saxena, More than mere Semantics, supra, at note 10 at 346.

[14]  See, Id and Pitcherskaia v. INS at 643.

[15] Id.

[16] Id at 645.

[17]  Id.

[18] See,  Bennett, The “Cure” That Harms, supra, note 4 at 300, citing Pitcherskaia.

[19] Id at 301.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Pitcherskaia v. INS, supra at note 102 at 648.

[26] [26] See,  Bennett, The “Cure” That Harms, supra, note 4 at  303.

[27] Id, citing Pitcherskaia.

[28] Id. See, also Faddoul v. INS, 37 F. 3d  185, 188 (5th Cir. 1994).

[29] See, Saxena, More than mere Semantics, supra, at note 10 at 349.

[30] Id.

[31] Id.

[32] See, 37 F. 3d  185,  supra at note 122 at 188-89.

[33]  Id.

[34] Id.

[35] 972 F.2d 161 (7th Cir. 1992).

[36]  Id at 165, footnote 2: Persecution is not defined in the Act, but we have described it as “punishment or “the infliction of harm” for political, religious, or other reasons that are offensive.

[37] See, Saxena, More than mere Semantics, supra, at note 10 at 349.

[38] Id, citing Berdo v. INS, 432 F.2d 824,846 (6th Cir. 1970). “No doubt ‘persecution’ is too strong a word to be satisfied by proof of the likelihood of minor disadvantage or trivial inconvenience.  But there is nothing to indicate that Congress intended section 243(h) to encompass any less than the word ‘persecution’ ordinarily conveys – the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.  See Webster’s Third New International Dictionary 1685 (1965).”

[39]  See, Kristie Bowerman, Note: Pitcherskaia v. INS: The Ninth Circuit Attempts to Cure the Definition of Persecution, 7 Law & Sex 101,110 (1997).

[40] Id.

[41] Id.

[42] Id.

[43] See, Swink, Note: Queer Refugee:, supra at note 30 at 263.

[44] See, 8 C.F. R. § 3.1 (1992).

[45] See, Stuart Grider, Sexual Orientation As Grounds For Asylum In the United States – In re Tenorio, 35 Harv. Int’l L.J. 213,215 (1994).

[46]  See, infra at p 11, Section IIC, footnote 70, citing Bennett, The “Cure” That Harms, supra, note 4.

[47]  See, Grider, Sexual Orientation, supra at note 136.

[48] Id.

[49]  Id citing T. David Parish, Membership in a Particular Social Group Under the Refugee Act of 1980: Social Identity and the Legal Concept of the Refugee, 92 Colum. L. Rev. 923, 950 n. 152 (1992).

[50]  Id.

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