Witchcraft and Persecution

David Rosaler, a student in my Refugee and Asylum seminar, has written an excellent paper which he has given me permission to post on the blog.  In the paper he suggests that U.S. asylum law should be used to provide a safe-haven  for those fleeing persecution on the ground that they are witches. Read it and you will learn a great deal about witchcraft  and persecution down through the years. Enjoy.


A Case for Asylum for Individuals Persecuted on Account of Being Accused of Witchcraft

David Rosaler © 2013

I. Introduction

Harry Potter, David Copperfield, Harry Houdini, Merlin, David Blaine, Sabrina the Teenage Witch, Moses, Cris Angel, and Jesus. What do the people on this list of real and fictional figures throughout time, have in common? All of them could be maimed, tortured, imprisoned or killed today in countries around the globe for practicing witchcraft. Sure, tales of wizardry, sorcery, magic, and the paranormal and occult make great fodder for television, movies, and literature in today’s western society, but many cultures around the world don’t take it so lightly. In many countries, the persecution of accused witches is commonplace in their societies and legal systems. In some, the violent persecution of accused witches is even big business as “witch-hunters” make huge profits from selling body parts of accused witches on the black market, which ironically are considered by many to be healing and ward off evil spirits. I propose that United States take aim at solving this problem, and help the victims of persecution on account of being accused of witchcraft, by granting them asylum in the U.S.

I chose this topic on a personal level. When I was a little boy, I was fascinated by magic and the supernatural. Then as I got older, I began learning magic tricks, reading magic books and magazines, attended magic shows and conventions, and even took magic lessons from a local magician. I practiced my tricks all the time. My dream was to become a magician. While I no longer practice magic, I still have that same love for it, so when I learned about the atrocities that take place around the world to accused witches and wizards, and thought about the fact that it could have been me being persecuted had I been born in another part of the world, I became very affected.

The first part of this paper will introduce the problem of witchcraft violence today. Next, it will put things in perspective by discussing the persecution of accused witches in our own corner of the globe, the Salem Witch Trials. Section IV will discuss the international and national origins of asylum law doctrine. Section V will get into the details of how asylum law operates in the United States. Section VI will analyze the question of granting asylum to those persecuted on account of being accused as witches within the framework of U.S. asylum law, and end with section VII, the conclusion.


II. Introduction to the Witchcraft Problem


Not too many people are aware that in many areas around the world accusations of witchcraft occur regularly and especially do not know about the persecution and slaying of such individuals. But the persecution of accused witches continues in communities today, most often in the tribal and less developed regions of Africa.[1] First, it is important to comment on the distinction between those individuals accused of witchcraft, and those who are known as “witch-doctors”. While the term “witch-doctor” normally has a negative connotation in western usage, many individuals in tribal villages do not view it as such. Many individuals in these areas, especially South Africa, revere these so-called “witch-doctors” for their healing and miracle inducing capabilities, and often refer to them as healers, magicians, sorcerers, rain-makers, diviners, and shamans.[2] These individuals are usually recognized by the community, and most likely would self-identify themselves as “witch-doctors” or some other similar terminology. While there have been occasions where these individuals have been persecuted, and if they had reached an international border could be eligible asylum status, but these individuals are not the subject of this paper.[3] This paper is about those individuals, usually in isolated communities, who are regular people that do not voluntarily associate with witchcraft, sorcery, or the occult, and do not call themselves “witch-doctors.” Normal people falsely accused of practicing witchcraft, associating with evil, and possessed by demons.

Victims accused of witchcraft are usually those considered weak and marginal to the community.[4] They are mostly elderly or children, and usually live with stepparents or relatives, or orphaned, making them of little use to the productivity of the community.[5] Often they have mental or physical deficiencies, or are different in some way from the rest of the community, such as being unusually smart or dumb, homosexual, or victims of human trafficking. Women and individuals suffering from AIDS are also at a higher risk of being accused of witchcraft.[6] Usually they lack any support from the community, which is why they make easy targets for witchcraft accusations, and probably why they do not normally file asylum claims.[7]

Any individual in the communities where these accusations take place can accuse another individual of witchcraft. Victims have been accused by pastors, neighbors, even their own parents.[8] In some countries, accusing an individual of witchcraft is even a legal justification for the murder of the accused witch.[9] While some of the victims who are accused of being possessed by evil or demons are “cured” through pastors in painful and socially stigmatizing exorcisms, these are the fortunate ones who have family and friends to support them, while most face unspeakable harms.[10] Accused witches have been imprisoned, tortured, burned, exiled, forced into camps, beaten, starved, and dismembered as their body parts are highly sought after on the black market, as it is believed that they can ward of evil spirits.[11] Those who are imprisoned for practicing witchcraft usually face unfair trials, on the vaguest of charges, and are convicted on “supernatural” evidence.[12] Witches are often accused of putting spells on children, and blamed for many other societal problems, often leading to massive “witch-hunts” and mob violence.[13] Victims of witchcraft accusations have been killed by burning alive, beheading, starving, poisoning, and hanging.[14] Accounts of violence against accused witches have been noted in Ghana, Tanzania, South Africa, Papa New Guinea, Saudi Arabia, Somalia, Nigeria, South Africa, Zimbabwe, Uganda, Cameroon, Botswana, Lesotho, Namibia, Zambia, Kenya, Malawi, and the Democratic Republic of Congo.[15]

Many scholars have hypothesized why the belief in witchcraft is so prevalent in certain regions of the world. Some have suggested that people “still” believe in witchcraft because modernization and secularization has yet to run its full course, while others suggest that the modern belief in witchcraft is an alternative way of dealing with current modernization and globalization.[16] The conflict between modern secular society and traditional cultures may in fact play a role in the current belief in witchcraft around the world, but others point to a different reason. One author suggests that the belief in witchcraft is used to complement the natural explanation of events, such as why one person becomes ill yet not another, and that these cultures seek a metaphysical answer for why a misfortune occurred.[17] He goes on to claim that those who accuse others of witchcraft are just using the weak and helpless as a scapegoat for all of the community’s problems, witchcraft “[t]akes its origin… in the psychological need to provide an outlet for repressed hostility, frustration, and anxiety. It provides a way to explain serious misfortunes and render those who suffer them blameless in the eyes of society.”[18] Whatever the cause for the widespread belief in witchcraft, the fact of the matter is that the fear of witchcraft is still a real and present force in Africa, and studies show that the belief in witchcraft is strong, common, and widespread, and even on the rise in Africa.[19] In fact, South African officials estimate that eighty five percent of all African household consult with “witch-doctors,” often to detect witchcraft and provide cures for hexes.[20]

Clearly, the witchcraft problem still looms large in many regions around the world. It is not often that a “supernatural” problem has a “legal” solution, but perhaps granting asylum to these individuals might actually help these victims, or at least encourage their countries of origin to do more about the problem. It might seem unfathomable that in today’s modern world accusations of witchcraft persist, but not too long ago we faced the exact same persecution in our own neck of the woods.


III. The Salem Witch Trials: History and Relevance


Does any of this sound familiar? Well it should. Perhaps you are now flashing back to your grade school history class when you learned about the Salem Witch Trials, a staple in the historical education of youths in the modern day United States of America. We all remember learning about the Salem witch trials and the public outcry against witches in the late seventeenth century. Many of us learned even more about the Salem witch trials in our literature classes by reading playwright Arthur Miller’s landmark play, The Crucible, a semi-political tale of paranoia, hysteria, and conforming to social norms. While Arthur Miller’s 1953 play, The Crucible, was a intended to be an analogy to McCarthyism and the Communist scare that wrapped up the nation in the 1950’s in the midst of the Cold War, the play’s dramatization of the Salem witch trials may shed some light on the question of affording refugee or asylum status to those persecuted for being accused witches[21]. It is hard to believe that just over three hundred years ago this form of ignorant persecution took place in our very own country, the United States of America. This next part of the paper will discuss the background and historical origins of the Salem witch trials, and how the Salem witch trials are relevant to today’s inquiry regarding the granting of refugee or asylum status to those individuals facing terrible mental, physical, and emotional persecution based on the sole fact that they have been accused of practicing witchcraft.

A little over three hundred years ago, the small town of Salem, Massachusetts, was overcome by hysterical delusions of witchcraft that culminated in the unfortunate and untimely demise of over twenty young men and women.[22] It all started in February of 1692 when Betty Parris, daughter of merchant turned preacher, Samuel Parris, started to become ill.[23] Her symptoms were very unusual. She had a fever, complained of torturous pain, and had fits of hysteria where she would run around the house and under furniture.[24] After more local young girls became ill with the very same unusual symptoms, William Griggs, the village physician had no cure for the girl’s illnesses, and thus came to the conclusion that the “Evil Hand,” or witchcraft, was to blame.[25] Then the hysteria began to sink in:

A traveler to the past on mind’s light beam.

A visit to that City on a Hill;

The sorcery of justice is the theme.

The Puritans who seek to do God’s will.

Misguided judgments of the most sincere.

Protection of their fortress was the aim.

The banishment of evil’s wicked leer,

they didn’t see that heinous sins remained.

A Superstition blinds the righteous eye,

a log protruding out blocks Christian’s sight.

For pure desires innocents will die.

And History lookd[sic] back at church’s blight.

Piety of saints was not prevention.

Reputation falling prey to good intention.[26]


More and more girls became “afflicted”.[27] Quickly the blame shifted to Tituba, who became a scapegoat for the village’s ills due to her diminutive status as a slave, as well as her foreign upbringing and dealings with the occult.[28] Arrest warrants were issued against Tituba, Sarah Good, and Sarah Osborn, and the “witch-hunt” commenced.[29]

Soon the entire village became obsessed with identifying and punishing the “witches” responsible for the terror rapidly spreading throughout the village. Next, the deeply religious Puritan village of Salem became enraptured in a series of public trials that would leave the town in complete and utter turmoil, and would be forever implanted in the annals of history.[30] Two local businessmen, John Hathorn and Jonathan Corwin, acted as judges while the three accused girls were examined.[31] While Sarah Osborn and Sarah Good denied the charges, Tituba confessed and implicated Good and Osborn.[32] The proceeding ended in indictments against Osborn and Good, but due to the laws in existence at the time, they were not legally triable, so the hysteria and paranoia continued.[33] However in May of 1692, newly appointed governor Sir William Phips arrived with a new charter, and the infamous special court of Oyer and Terminer was set up to rule on the backlog of ever increasing witchcraft cases.[34]

On June 2, 1692, the court ruled on its first case, a death sentence for Bridget Bishop.[35] In its next session the court handed down five more death sentences, who were promptly executed, and in its third session the court convicted all six defendants to death.[36] Over the next three court sessions, twenty-three more convictions were dealt, and the townspeople finally became aware that the accusations and subsequent convictions were spiraling out of control.[37] Soon the accused were accusing people whom they had never even met before, and influential and prominent people had become accused.[38] Finally, after a poignant sermon by preacher Increase Mather, the court began to exclude supernatural evidence, and the governor forbade any more trials or imprisonments of accused witches.[39] A special court in early 1693 acquitted and pardoned the rest of the accused, but the damage had already been done.[40] By the time all the dust settled, after an entire year of widespread panic and hysteria, twenty-two people were dead, and remained a “black cloud over the town that has not dissipated in three hundred years.”[41]

How does this all relate to modern immigration and refugee law theory in the United States today? At this very moment, people all over the world, and particularly in Africa, face this very same persecution. People all over are losing their liberty, and even their lives, due to the same hearsay accusations and “supernatural” evidence. Just as the Puritans in the late 1600’s saw accusations of witchcraft as a way to “cleanse” their community of those who possess characteristics that they deemed “undesirable,” many towns and villages in Africa view these accusations the very same way. Many people from the more prosperous and developed nations in the world might think that these kinds of supernatural accusations could only occur in the poorer, and less developed parts of the globe. Perhaps these people should be reminded that only three hundred years ago, these kinds of “witch-hunts” occurred in our own modern, developed, and wealthy nation. Maybe they need a little reminder about the Communist scare and McCarthyism during the cold war just sixty short years ago. Our parents and grandparents certainly remember. History is cyclical in nature, and no nation is immune to the problems and mistakes of the past, so it is beneficial to be aware that these problems still persist, and do anything in our power to stop them, because in a few years, it might just be us on the other side of that accusation.


IV. Asylum Law: Definition and Origins

To have partake in a  meaningful discussion of asylum, and whether it should be granted to those certain individuals persecuted on account of being falsely accused of witchcraft, it is necessary to first discuss the origins and definition of asylum, and the foundational cases that this body of law is based upon.

The great body of asylum and refugee law all stems from the 1951 Convention Relating to the Status of Refugees.[42] The Convention was approved on July 28, 1951 at a United Nations conference, and went into effect on April 22, 1954.[43] One could say that the Convention was a product of World War II, as the original intended purpose was to protect European refugees that had been displaced following the events of World War II.[44] Denmark was the first nation to ratify the convention, on December 4, 1952, and as of April 1, 2011, there were 144 State Parties to the convention.[45] The Convention introduced the world to the definition of refugee, the responsibilities of those countries that are signatories to the Convention, and the legal principle of non-refoulement.[46] The Convention gives us the definition of the word “refugee”:

For the purposes of the present Convention, the term “refugee” shall apply to any person who [as] a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.[47]


This same definition of refugee was eventually codified into the laws of the United States of America through the Immigration and Nationality Act, at §101(a)(42) and §208(b)((1)(B).[48]

Of major importance in the 1951 Convention is the principle of non-refoulement. At the heart of non-refoulement is the principle of the refugee’s right to be protected against forcible return to the state in which they were persecuted, “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion.”[49] This notion against forcible return (“refoulement”) is widely considered to be part of the body of customary international law, and as such even the States who are not signatories to the 1951 Convention are expected to follow the principle of non-refoulement.[50] While the 1951 Convention is the keystone in the area of international refugee and asylum law, other treaties and acts also serve as the basis for refugee and asylum law both in the United States, and abroad.

Chronologically, the next important event in asylum law took place in 1952 with the enacting of The Immigration and Nationality act (“INA”), and subsequently with the passing of the The 1965 Immigration Act.[51] The INA, following its enactment in 1952, codified United States immigration law into Title 8 of the United States Code.[52] The 1952 act created a federal program for dealing with immigrants and refugees by establishing a preference based system for varying classes of workers and also employed a strict quota system.[53] The quota system set a strict maximum number of aliens allowed to immigrate to the United States from each country.[54] In addition to the strict quota system, the act also included a number of other grounds for exclusion pertaining to the safety and welfare of the United States.[55] The act was amended in 1965, which led to some drastic changes, most notably the repeal of the strict quota system, and an emphasis on family reunification and employment preferences which are still important goals of the United States current immigration system.[56] The act was amended yet again in 1996, expanding the scope of United States asylum law beyond the traditional norms of traditional international asylum law by amending the definition of “refugee” to include:

A person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of a political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or [be] subject to persecution for such failure, refusal or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.[57]


The next major step in international asylum law came in 1967, with the Protocol Relating to Refugee Status. In 1967 the United Nations convened again to amend the 1951 Convention, with one huge alteration, removing the geographical and time restraints to be considered a “refugee.”[58] The United States, which was not a signatory to the 1951 Convention, adopted the 1967 Protocol in 1968.[59]


V. United States Asylum Law and Foundational Cases


Now that I have discussed the origins of international asylum law and the United States recognition of it, it is necessary to discuss how the U.S. applies its refugee and asylum laws. Ever since the United States Refugee Act of 1980, the body of asylum law in the U.S. has evolved through case law, regulations, and administrative guidelines.[60] Applicants for asylum fall under one of three categories: 1. Applicants filing defensive applications (meaning removal proceedings have already been started against the individual and they are now claiming asylum as a defense), 2. Applicants filing affirmative applications (meaning that they have not yet entered the country and are filing for asylum from an international border), and 3. Applicants filing for asylum at a point of entry (meaning they have just entered the country and are now filing for asylum).[61] An immigration officer reviews initial asylum applications for port of entry or affirmative filings, and an immigration judge reviews asylum applications for those who filed defensive applications or those who were denied asylum by an immigration officer for port of entry or affirmative filings.[62] Both immigration judges, and officers, are bound by U.S. Supreme Court decisions, decisions by the federal circuit court of appeals, and decisions made by the Board of Immigration Appeals.[63]

The basic definition of refugee comes from the 1951 Convention and 1967 Protocol. An applicant for asylum must prove that the asylum seeker is outside their country of nationality or last habitual residence, unable or unwilling to return to that country, because of a past or well-founded fear of persecution, on account of a protected ground that is race, religion, nationality, membership in a particular social group, or political opinion.[64] These elements and the scope of their application are mainly derived from case law.

The first element of being outside their country of nationality or last habitual residence is usually easy to prove with a passport or birth certificate that indicates their place of birth.[65] The second prong, that of being unable or unwilling to return, is also usually easy to establish as it ties into the applicants fear of persecution.[66] The next element of past persecution can be proved through evidence of past harms that rises to the level of persecution, is on account of one of the five protected grounds, and has been committed by the government or a group that the government is unable or unwilling to control.[67]

For asylum seekers filing based on a well-founded fear of persecution, instead of past persecution, things get a little more difficult as more evidence is needed. For an asylum applicant to show a well-founded fear of persecution, they must prove that a reasonable person in the same circumstances would fear persecution if sent back to their home country.[68] The BIA case of Matter of Mogharrabi is a foundational case for the issue of “well-founded fear of persecution.” The court in Mogharrabi established four elements for an applicant to show a well-founded fear of persecution: 1. The applicant possesses a belief or characteristic that the persecutors seek to overcome in others by means of punishment of some sort; 2. The persecutors are aware or could become aware that the applicant possesses this belief of characteristic, 3. The persecutor has the capability of punishing the applicant, and 4. The persecutor has the inclination to punish the applicant.[69]

The harm that the applicant has a well-founded fear of, must rise to the level of persecution. While the INA has no definition for “persecution,” the BIA sheds some light on this in the case Matter of Kasinga.[70] In that case, Fauziya Kasinga, a native of Togo, applied for asylum in the U.S. to escape the tribal practice of female genital mutilation.[71] In Kasinga the BIA granted her asylum and defined persecution as the “infliction of harm or suffering by a government, or persons a government is unable or unwilling to control, to overcome a characteristic of the victim.”[72] However, all unjust treatment does not rise to the level of persecution. In Fatin v. INS, the court ruled that the applicant’s requirement to wear a veil in public that she would “try to avoid,” did not rise to the level of persecution.[73] Mere harassment does not rise to the level of persecution.[74]

The persecution that the asylum seeker fears must be “on account of” one of the protected groups. The U.S. Supreme Court visited the “on account of” requirement in the landmark case INS v. Elias-Zacarias.[75] In that case a man from Guatemala filed for asylum due to his fear of forced conscription in a guerilla army.[76] The Court held that he was not persecuted “on account of” his membership in one of the five protected groups, and that the persecutor’s motivation for persecution must be because of the protected ground.[77] Some courts have acknowledged the fact that persecutors may have more than one motivation for persecution,[78] and that the applicant need only present evidence that will reasonably show that the persecution was motivated by a protected ground, at least in part.[79]

The five protected grounds are derived from the definition of “refugee,” and include race, religion, nationality, membership in a particular social group, or political opinion.[80] It is important to note that an applicant who is not a member of one of the protected groups may still have a case for asylum if the persecutors erroneously believe that the applicant does.[81] Race is not an easily defined concept, so the courts have typically applied the protected ground of “race” to include ethnic groups.[82] The Immigration and Naturalization Service “took the position that persecution on account of race included apartheid in South Africa, the Holocaust, and slavery.”[83]

The next protected ground to be discussed is religion. It is no surprise that religion is one of the protected grounds, as the U.S. was formed by immigrants seeking to escape religious persecution. Under U.S. asylum law religious persecution includes the prohibition of membership in a religious community, prohibition of religious instruction, and the prohibition of public or private worship.[84] Information relating to religious freedom throughout the world can be found in an annual report issued by the U.S. Department of State.[85] China[86], Iran[87], and Sudan[88] are just a few of the countries that American courts have found to persecute individuals based on the protected group of religion.[89]

Nationality is the next protected group. Nationality in its most basic sense is the nation from which an asylum seeker resides, but it is closely connected to “race” as often two or more ethnic groups share a country and persecute each other.[90] Some examples of nationalities that U.S. courts have found discrimination against are ethnic Albanians,[91] Kurds, certain indigenous populations of Central America, and various ethnic groups in the former Soviet Union.[92] Usually the individual facing persecution belongs to a national minority, but this is not always the case.[93]

The broadest protected group, and the one that most affects individuals facing persecution for being accused of witchcraft, is that of membership in a particular social group. While it is not authoritatively defined by any document or body, the BIA’s interpretation of membership in a particular social group in the landmark case of Matter of Acosta, sheds the most light on this ill-defined concept[94]:

Persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic may be an innate one such as sex, color, or kinship ties, or in some circumstances it may be a shared past experience such as former military leadership or landownership. The particular kind of characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.[95]


Many different categories of asylum seekers fall under this protected ground as it is broadest and is often used as a catchall[96]. This also makes it one of the hardest to prove as three elements must be proved.[97] First the applicant must identify the group that is the “particular social group”.[98] Next the applicant must establish that they are a member of that group.[99] Finally, the asylum seeker must prove that they were persecuted based on that membership.[100] While all courts follow the interpretation in Acosta, some courts, such as the Ninth Circuit, have added another method to establish particular social group, “voluntary associational.”[101] The voluntary associational approach included groups whose members are closely affiliated with each other and share a common interest.[102] Regardless of the court, social group cannot be defined by the mere fact that is has been persecuted, and the social group must have existed before the persecution commenced.[103] The group may be innate, such as family[104], or due to shared previous experience, such as landowners or former military leaders.[105] [106] In addition, since the social group must be particular, meaning described with particularity, large and diverse groups rarely satisfy the “particular social group” protected ground.[107] Some examples of groups that have been found to satisfy this ground are homosexuals,[108] transgender individuals,[109] former child soldiers,[110] women who have experienced fear of female genital mutilation,[111] parents of student dissidents,[112] members of a Somali clan,[113] government employees,[114] and union members.[115] Some groups that have not qualified are informants,[116] persons on low economic status,[117] and young men who refused gang recruitment.[118] Due to the high variability in decisions and interpretations relating to the “particular social group,” this group has proven to be the most problematic group to predict, and the fate of the asylum seeker may be heavily tied to which court is reviewing his application.

The final protected ground is political opinion, represents the individual’s political beliefs, which are usually proven through political activity, and usually involves a member in a minority party.[119] Political opinion can be expressed through actions or words, and does not need to be part of an acknowledged ideology.[120] Neutrality, by conscious choice and not indifference, has been held to qualify for political opinion,[121] as has the spouse of individual subjected to forced sterilization.[122]


VI. Analysis of a Hypothetical Witchcraft Asylum Claim


Due to the lack of published opinions for asylum claims based on persecution against those accused of witchcraft, the question of granting asylum on this ground is predominantly theoretical, and has mostly been a topic posed by academia. This is most likely due to the fact that accusations of witchcraft usually only occurs in “tribal” areas with very little access to the necessary information and resources to properly file a United States asylum claim. Those affected individuals are most likely not even aware that they can seek asylum in the U.S., and probably do not even have the knowledge that the concept of refugee or asylum exists, let alone the ability to make it to the border of the United States or other country to even file a claim.

If a witchcraft violence asylum case were to arise in a U.S. court it would most likely be an individual filing an affirmative application from an international border as opposed to a defensive or port of entry application. This is because most individuals accused of witchcraft are located deep in the tribal regions of less developed countries, with minimal infrastructure. Making matters worse is that most victims are “weak” or handicapped in some way, and lack the support of family or the community. This makes the first element of being outside their country of nationality an insurmountable hurdle for victims of witchcraft-based persecution.

If a potential asylum seeker was to somehow make it to an international border and file an asylum application, their next step would be to satisfy the second element, being “unable or unwilling to return.” This would be easy since the evidence that will be needed to prove the “persecution” will back up the applicant’s unwillingness to return. A hypothetical witchcraft asylum seeker would most likely have been persecuted in some fashion previously, and that evidence would go towards “past persecution.” This type of evidence may come from police records, hospital records, or records from an outreach center of charitable entity involved with stopping witchcraft violence in that country. As is usually the case with asylum cases, evidence must be extensive, and thus may be an issue for the asylum seeker in an immigration court. There is a requirement that the persecution be on the part of the government or a group that the government is unable or unwilling to control. For the countries that still have anti-witchcraft legislation this is easy to prove by showing that the laws of the country actually persecutes accused witches. For countries that do not actively persecute accused witches, the latter part about “unable or unwilling to control” comes into effect. For this situation, objective evidence regarding the extent of witchcraft related violence, and the lack of prevention by the government would suffice. This type of evidence can be found in police reports and statistics, hospital records, and particularly the country reports on human rights practices issued by the U.S. Department of State.

Not every applicant files based on past persecution. For those filing based on a “well-founded” fear of persecution they need to prove that their fear is in fact “well-founded.” Theoretically, this would be easy as usually the entire community shares anti-witch sentiment, and proof of other past harms against other accused witches would help show that their fear is in fact well founded. As is usually the issue in immigration courts, this must be backed up with hard evidence, and as evidence for this kind of witchcraft persecution tends to be scarce and suspect, this may prove to be another problem for the applicant.

The next element of the harm reaching the level of persecution would most likely be relatively easy in a witchcraft case. Surely, maiming, killing, and torture amount to persecution.  While mere harassment is not cause for asylum, the kinds of harms inflicted on accused witches rises way beyond harassment. The case for accused witches is very different from Fatin, who did not want to wear a veil in public. Accused witches face unspeakable atrocities. Likewise, the “account of” element is likely to be satisfied since witchcraft violence is usually community based, and nearly anyone in the community could testify that the persecution was based on account of being accused a witch. In addition, accused witches sometimes face specific types of harm specifically for witches, such as burning.

The final issue to be resolved is that of protected class. Accused witches do not fall under the auspices of religion, race, nationality, or political opinion. Thus, their only option is under the broad category of “particular social group.” Here is where having a qualified immigration attorney would really help the applicant. The attorney will have to convince the court that the group of “those individuals from the applicant’s country that have been, or fear, persecution on account of being accused of practicing witchcraft.” While not an innate characteristic, this falls under the category of “shared experience.” Evidence will need to be offered that tends to show persecution for being a member of that group. While it is unable to really know how large this group is, it stands to reason that this group is not so large to not be considered “particular” and is not likely to be viewed as “opening the floodgates” of asylum applications. This group certainly seems similar, in terms of size, composition, and persecution, to homosexuals, transgender individuals, and victims of human trafficking, all groups that have been recognized by U.S. courts as “particular social groups.” As previously noted, different circuits treat this element in different ways, so the specific court in which the application is reviewed may have a lot to do with the outcome of the application. An experienced immigration attorney will know which circuits are more advantageous to the asylum seeker, and try to file the application under that jurisdiction. The attorney will also try to analogize this “particular social group,” with those previously mentioned, and others, that have been held to satisfy the “particular social group” element.

While it certainly appears that individuals filing for asylum based on persecution due to being accused of witchcraft, the actual outcome would probably rely on the specifics of the particular case. The biggest obstacles for such an asylum applicant are the amount and type of evidence that can be gathered to support the applicants claim, and most importantly the ability to make it to an international border. While not the subject of this paper, it is also necessary to note that if an asylum application for an accused witch is rejected for any reason, another form of relief may be available through the Convention Against Torture, if the applicant can show that it is more likely than not that they will be tortured if returned to their country of nationality.[123]


VII. Conclusion


As you can see, witchcraft violence and persecution is still rampant in many regions around the world:

Witches and witchcraft do not, of course, exist, but the belief in their existence is one of the most potent in the lives of most African people. And it is a belief which cannot easily be exorcised, for it is not an isolated factor, but an integral part of the whole psychological and magico-religious systems.[124]


This paper has proposed a possible solution to the problem by granting asylum to those such individuals, and has set out what an asylum claim by an individual persecuted on account of being accused of witchcraft might look like if it were to make its way into an U.S. immigration court. However, this can only help so much. Most would-be refugees or asylum grantees never escape their persecutors, and become victims of their persecutor’s misguided, or sometimes just plain evil, motives. The ideal solution would be to attack the cause of the problem, not the symptoms. NGOs, IGOs, and other charitable organizations have helped a lot so far, but the only long-term solution is for the countries themselves to address the problem. This can be accomplished by increasing education, establishing community outreach centers, and changing the legal system and laws to repeal anti-witchcraft legislation and enact anti-witchcraft accusation legislation as well as legislation aimed to protect babies born with birth defects. But the best thing these countries can do is stiffen penalties for anti-witchcraft vigilante violence, and actively enforce those policies. Perhaps the U.S. granting asylum to these victims will influence the countries where witchcraft violence remains rampant, and motivate them to change their ways.

[1] Melissa Bruynell, The Dangers of Modern Day Belief in the Supernatural: International Persecution of Witches and Albinos, 35 Suffolk Transnat’l L. Rev. 393 (2012)

[2] Dr. Jean La Fontaine, Victims of Accusations of Wtichcraft, https://www.refugeelegalaidinformation.org/victims-accusations-witchcraft (accessed November 23, 2012).

[3] Persecution of these individuals has been noted in South and East Africa, but evidence of this is lacking due to most of the evidence being exaggerated hearsay from interested charities and NGOs and unreliable police reports. Id.

[4] Id.

[5] Id.

[6] Chi Adanna Mgbako & Katherine Glenn, Witchcraft Accusations and Human Rights: Case Studies from Malawi, 43 Geo. Wash. Int’l L. Rev. 389 (2011)

[7] Id.

[8] Id.

[9]. A notable example of anti-witchcraft legislation is Saudi Arabia’s anti-sorcery legislation, which authorizes the beheading of alleged witches. NGO and IGOs, such as UNICEF, have made strides in helping repeal this kind of anti-witchcraft legislation, and freeing accused witches, and some countries have even introduced legislation that makes it illegal to accuse an individual of witchcraft, but much more work needs to be done in places such as Papa New Guinea, where a passive approach to vigilante violence against witches results in many deaths every year. Another proposed solution is the introduction of legislation to protect “abnormal birth” babies who have a much higher risk of being accused of witchcraft. Brunyell, The Dangers of Modern Day Belief in the Supernatural, supra at 417.

[10] Dr. Jean La Fontaine, Victims of Accusations of Wtichcraft, https://www.refugeelegalaidinformation.org/victims-accusations-witchcraft (accessed November 23, 2012).

[11] Albinos, who are also accustomed to being persecuted because they are different, are also sometimes accused of witchcraft, and their body parts, especially fingers, are highly valuable in Tanzania. In Tanzania, an arm or leg of an albino can reach up to $2000 on the black market, in a region where the per capita annual income is only $450. There are even “witch-hunters” who make a living solely by slaying witches and albinos. As long as that much money can be made, more violence is inevitable. Stacy Larson, Magic, Mutilation, and Murder: A Case for Granting Asylum to Tanzanian Nationals with Albinism, 2 NO. 8 Pace Int’l L. Rev. Online Companion 1, 2 (2011)

[12] Brunyell, The Dangers of Modern Day Belief in the Supernatural, supra.

[13] Chi Adanna Mgbako & Katherine Glenn, Witchcraft Accusations and Human Rights: Case Studies from Malawi, 43 Geo. Wash. Int’l L. Rev. 389 (2011)

[14] Brunyell, The Dangers of Modern Day Belief in the Supernatural, supra at 417.

[15] Mohammed A. Diwan, Conflict Between State Legal Norms and Norms Underlying Popular Beliefs: Witchcraft in Africa As A Case Study, 14 Duke J. Comp. & Int’l L. 351 (2004)

[16] Barbara Oomen, Witchcraft, Violence, and Democracy in South Africa Adam Ashforth (Chicago and New York: University of Chicago Press, 2005), 29 PoLAR: Pol. & Legal Anthropology Rev. 306 (2006).

[17] John Alan Cohan, The Problem of Witchcraft Violence in Africa, 44 Suffolk U. L. Rev. 803 (2011).

[18] Mohammed A. Diwan, Conflict Between State Legal Norms and Norms Underlying Popular Beliefs: Witchcraft in Africa As A Case Study, 14 Duke J. Comp. & Int’l L. 351 (2004).

[19] Cohan, The Problem of Witchcraft Violence in Africa, supra at 807.

[20] Id.

[21] Jane Campbell Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vt. L. Rev. 43, 99 (2001).

[22] Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has the American Legal System Come? How Much Further Does It Need to Go?, 64 Tul. L. Rev. 235 (1989).

[23] Although commonly referred to as the “Salem witch trials,” in reality the ordeal began in the town of “Salem Village” after John Putnam, a highly influential village elder of Salem Village, invited then merchant Samuel Parris to become the new preacher of the village church. Samuel Parris accepted the position and proceeded to relocate himself and his family to the village. The Parris household consisted of Samuel, his wife Elizabeth, his daughter Betty, his niece Abagail Williams, and his Indian slave, Tituba. During the winter of 1691, several of the local girls became interested in the occult after listening to the stories of Tituba, who had some experience with “obeah”, a religion practiced by transplanted Africans in the Caribbean that shares many of the same characteristics of voodoo. The girls convened in the kitchen of Samuel Parris and talked about their future husbands as they began their experimentation with witchcraft and the occult. Kevin O’Kelly, The Evidence of Things Unseen: The Legal World of the Salem Witch Trials, Experience, Summer 2006, at 16.

[24] Years later there was much speculation as to the true causes of Betty Parris’ symptoms. These causes ranged from stress, boredom, asthma, guilt, and child abuse, to epilepsy, delusional psychosis, and schizophrenia. One interesting theory came from a 1976 article in Science magazine, where Linda Caporael proposed that the cause of Betty Parris’ unusual symptoms was from a disease called “convulsive ergotism” brought on by exposure to rye bread or cereal contaminated with ergot, a precursor to the hallucinogenic drug LSD that was very popular during the 1960’s in the United States. The disease causes violent fits, vomiting, and hallucinations. Douglas Linder, The Witchcraft Trials in Salem: A Commentary, https://law2.umkc.edu/faculty/projects/ftrials/salem/SAL_ACCT.HTM  (accessed January 3, 2013).

[25] Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has the American Legal System Come? How Much Further Does It Need to Go?, 64 Tul. L. Rev. 235, 237 (1989).

[26] Jenny Lee, Salem Witch Trials (Sonnet), https://allpoetry.com/poem/578585-Salem_Witch_Trials__Sonnet_-by-JennyLee (accessed January 5, 2013).

[27] After Ann Putnam, Mercy Lewis, Mary Walcott, Elizabeth Hubbard, Susannah Sheldon, and Mary Warren all became ill the village began to speculate how to “cure” the afflicted girls. Samuel Parris’ neighbor, Mary Silbey, had a solution, for Tituba to soak a rye cake with the urine of the afflicted girls, and to feed it to a dog, an animal that was believed to be used by witches in their evil pursuits. Douglas Linder, The Witchcraft Trials in Salem: A Commentary, https://law2.umkc.edu/faculty/projects/ftrials/salem/SAL_ACCT.HTM  (accessed January 3, 2013).

[28] Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has the American Legal System Come? How Much Further Does It Need to Go?, 64 Tul. L. Rev. 235, 238 (1989).

[29] While Tituba was accused for obvious reasons, the townspeople may have had other reasons for accusing the other two girls that were initially accused of witchcraft. Sarah Good was described as a “sullen, haglike beggar with a sharp tongue” and a social misfit with no home, while Sarah Osborn was old, argumentative, did not attend church, and had been involved in a scandal a few years before when a man she was not married to,  moved into her house. Douglas Linder, The Witchcraft Trials in Salem: A Commentary, https://law2.umkc.edu/faculty/projects/ftrials/salem/SAL_ACCT.HTM  (accessed January 3, 2013).

[30] Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has the American Legal System Come? How Much Further Does It Need to Go?, 64 Tul. L. Rev. 235, 238 (1989).

[31] While the women were initially to be examined at a local inn, the hordes of people who wished to view the proceedings caused the examination to be relocated to the village meetinghouse. The trial truly was “center stage”. Id. at 239.

[32]Douglas Linder, The Witchcraft Trials in Salem: A Commentary, https://law2.umkc.edu/faculty/projects/ftrials/salem/SAL_ACCT.HTM  (accessed January 3, 2013).

[33] A little known fact is that Salem was not the first village to experience accusations of witchcraft in New England, however in prior instances the accusations usually led to arrests, followed by convictions or acquittals, and the villages quickly moved on. Perhaps it was the lack of “justice” which led to the full-fledged trials and widespread panic. Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has the American Legal System Come? How Much Further Does It Need to Go?, 64 Tul. L. Rev. 235, 239(1989).

[34] This is also when the proceedings relocated from Salem Village, to the more historically famous Salem Town, as the astronomical increase in witchcraft accusations caused overflowing in the prisons, and the throngs of people assembled to witness the dramatic examinations. Id. at 240.

[35] Douglas Linder, The Witchcraft Trials in Salem: A Commentary, https://law2.umkc.edu/faculty/projects/ftrials/salem/SAL_ACCT.HTM  (accessed January 3, 2013).

[36] However, only five were actually executed (John Proctor, John Willard, George Jacobs Sr., Martha Carrier, and George Burroughs). Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has the American Legal System Come? How Much Further Does It Need to Go?, 64 Tul. L. Rev. 235, 240 (1989).

[37] Id.

[38] Both Samuel Willard, the president of Harvard at the time, and Lady Phips, the governor’s wife, were accused of witchcraft toward the end of the trials. Id. at 241.

[39] It is interesting to note that contrary to popular notions, the Puritan clergy were among the most outspoken about the out of control nature of the trials. Id.

[40] Id.

[41] Nineteen defendants were hanged, one was tortured to death, and two died in prison. Id. at 242.

[42]  David A. Martin, T Alexander Aleinikoff, Hiroshi Motomura, & Maryellen Fullerton,Forced Migration: Law and Policy 41 (2007).

[43] Id.

[44] Although it was initially only intended to protect European refugees in the aftermath of World War II, the 1967 Protocol Relating to the Status of Refugees later removed the geographical and time constraints. Regina Germain, SEEKING REFUGE: THE U.S. ASYLUM PROCESS, 35 Colo. Law 71 (2006).

[45] Also as of April 1, 2011, there were 145 State Parties to the 1967 Protocol, 142 State Parties to both the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, and 147 State Parties to either the 1951 Convention or 1967 Protocol. UNHCR, United Nations High Commissioner for Refugees, States Parties to the

1951 Convention relating to the Status of Refugees and the 1967 Protocol, https://www.unhcr.org/3b73b0d63.html (accessed January 7, 2013) [hereinafter States Parties to the 1951 Convention].

[46] Although it was signed in Geneva, Switzerland, and is sometimes referred to as “The Geneva Convention,” it is important to note that it is not one of the Geneva Conventions that established the international law for the humanitarian treatment of war. Martin, supra.

[47] Article 1(A)(2) of 1951 Convention Relating to the Status of Refugees.

[48] Although the United States is not a signatory to the 1951 Convention Relating to the Status of Refugees, it is State Party to the 1967 Protocol Relating to the Status of Refugees, and incorporated the Convention’s definition of refugee via the Refugee Act of 1980. Germain, supra.

[49] Article 33(1) of the 1951 Convention Relating to the Status of Refugees.

[50] Kate Jastram and Ms. Marilyn Achiron, UNHCR, REFUGEE PROTECTION:A Guide to International Refugee Law, https://www.ipu.org/pdf/publications/refugee_en.pdf (accessed December 12, 2013).

[51] UCIS, Immigration and Nationality Act, https://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=f3829c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed December 22, 2012).

[52] The Immigration and Nationality Act of 1952 is also known as the McCarran-Walter Act. Id.

[53] The highly controversial quota system was established in the Immigration Act of 1924 (The Johnson-Reed Act) and incorporated into the INA in 1952. U.S. Department of State: Office of the Historian, The Immigration Act of 1924 (The Johnson-Reed Act), https://history.state.gov/milestones/1921-1936/ImmigrationAct (accessed January 1, 2013).

[54] Immigration and Nationality Act of 1952, §212

[55] At the time , the United States was involved in the “Cold War,” and as such was concerned with the spread of communist ideologies, thus the enactment of a section excluding the immigration of any individuals that may “engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security.” INA of 1952 §212(a)(29)(A)

[56] While the 1965 Act abolished the national quota system, there was still a numerical limit to the total number of visas issued per year. Here are the family preferences as enacted in 1965: 1. Unmarried adult sons and daughters of U.S. citizens.  2. Spouses and children and unmarried sons and daughters of permanent resident aliens.  3. Members of the professions and scientists and artists of exceptional ability.  4. Married children of U.S. citizens.  5.  Brothers and sisters of U.S. citizens over age twenty-one.  6. Skilled and unskilled workers in occupation for which there is insufficient labor supply.  7. Refugees given conditional entry or adjustment.  8. Applicants not entitled to preceding preferences. CIS, Three Decades of Mass Immigration: The Legacy of the 1965 Immigration Act, https://www.cis.org/articles/1995/back395.html (accessed January 7, 2013).

[57] Germain, supra (citing INA § 101(a)(42), 8 U.S.C. § 1101(a)(42), revised under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996).).

[58] Article 1 of the 1967 Protocol Relating to the Status of Refugees.

[59] While the United States officially adopted the 1967 protocol in 1968, the Protocol was not viewed as “self-executing,” so it was not until the enactment of The Refugee Act in 1980 that the United States fell under purview of the 1951 Convention, and its definition of “refugee.” Thus, refugees were not officially able to seek asylum in the United States until the 1980 act. Martin, supra.

[60] See Germain, Seeking Refuge, supra at 72.

[61] Tina Javaherian, Seeking Asylum for Former Child Soldiers and Victims of Human Trafficking, 39 Pepp. L. Rev. 423, 429 (2012).

[62] Id.

[63] Immigration judges and officers are only bound by the federal circuit courts of appeals having jurisdiction over the state in which they sit. See Germain, Seeking Refuge, supra at 72.

[64] Id.

[65] Complications dealing with this prong usually arise due to an applicant having dual citizenship, or no nationality at all. For those with no nationality at all, the U.S. affords asylum protection to “stateless persons” if they can prove past persecution, or a well-founded fear of persecution in their country of last habitual residence. Id.

[66] The UNHCR’s handbook describes the unable or unwilling to return prong; “As long as [the asylum applicant] has no fear in relation to the country of nationality, [the applicant] can be expected to avail himself of that country’s protection.” United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, https:// www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=PUBL&id=3d58e13b4#search=%22Handbook%CC20on%CC20Procedures%CC20and%CC20Criteria%CC20for%CC20Determining%CC20Refugee%CC20Status%Cs̀. (accessed January 23, 2013).

[67] “If the applicant establishes past persecution, he or she is presumed to have a well-founded fear, unless a preponderance of the evidence establishes there has been a fundamental change in circumstances or the applicant reasonably could be expected to relocate to another part of his or her home country. Even if a preponderance of the evidence demonstrates a fundamental change in circumstances or an internal relocation alternative, an applicant still may be granted asylum in the discretion of the adjudicator if:

1) the applicant has demonstrated compelling reasons for being unwilling or unable to return to the country that arise out of the severity of the past persecution; or

2) the applicant has established a reasonable possibility that he or she may face other serious harm on removal to that country.”  See Germain, Seeking Refuge, supra at 74.

[68] This prong has both a subjective and objective element, as the applicant must show a subjective fear of persecution that is objectively reasonable. Id.

[69] Id.

[70] Id.

[71] The case also established the ability to seek asylum for gender-based persecution as female genital mutilation obviously only is done to females. Matter of Kasinga, Int. Dec. 3278 (BIA 1996).

[72] See Germain, Seeking Refuge, supra at 74.

[73] Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). See also Matter of A-E-M-, Int. Dec. 3338 at 3-4 (BIA 1998) (finding that a painted threat on the door of the applicant’s house, while regrettable, was not persecution).

[74] See Germain, Seeking Refuge, supra at 74.

[75] Id.

[76] INS v. Elias-Zacarias, 502 U.S. 478 (1992).

[77] While an applicant does not need to prove the “exact” motivation of the persecutor, the applicant must provide “some evidence of it, direct or circumstantial.” Id at 482.

[78] Matter of S-P-, Int. Dec. 3287 (BIA 1996).

[79] The “mixed motive” standard was partially modified by the Real ID Act of 2005, which requires that the motivation for the persecution is at least a “central” motivation. Germain, Seeking Refuge, supra at 74.

[80]INA § 101(a)(42), U.S.C. § 1101(a)(42).

[81]See Germain, Seeking Refuge, supra at 74, citing Asylum Officer Basic Training Course, Eligibility Part III: Nexus (Dec. 5, 2002) at 11, available at https:// www.rmscdenver.org/aobtc/Elig3nexus3dec02lplinks.pdf.

[82] For example courts have found Indo-Fijians and the Quiche ethnic group in Guatemala were both considered “race” in terms of asylum. See Germain, Seeking Refuge, supra at 74

[83] Id. citing U.S. Immigration and Naturalization Service, Office of the General Counsel, Asylum Division, Basic Law Manual, U.S. Law and INS Refugee/Asylum Adjudications (1994) at 37.

[84] Id.

[85] The Department of State is required to publish the annual report following the enactment of the International Religious Freedom Act in 1998, which also required the creation of the U.S. Commission on International Religious Freedom. Id.

[86] Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004).

[87] Bastanipour v. INS, 359 F.2d 1129 (7th Cir. 1992).

[88] Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir. 1996).

[89] See Germain, Seeking Refuge, supra at 74

[90] Nationality can also include ethnic and linguistic groups within a country. Id.

[91] Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994) (granting asylum to ethnic Albanian from Yugoslavia).

[92] See Germain, Seeking Refuge, supra at 74, citing Matter of O-Z- & I-Z-, Int. Dec. 3346 (BIA 1998)

[93] Id. citing Handbook, supra 76.

[94] Id. at 75.

[95] Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985).

[96] This also makes it the most highly debated protected ground. The BIA has expressly stated that “particular social group” was not meant to be used as a catch-all to include all persecuted individuals who do not fall under one of the other protected grounds.Tina Javaherian, Seeking Asylum for Former Child Soldiers and Victims of Human Trafficking, 39 Pepp. L. Rev. 423, 435 (2012).

[97] Id.

[98] Id.

[99] Id.

[100] This last element arguable also falls under the “account of” element of an asylum claim. Id.

[101] Id.

[102] Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a “Particular Social Group” and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender, 27 Yale L. & Pol’y Rev. 47, 53 (2008) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)).

[103] Id. citing Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003).

[104] See, e.g., Mgoian v. INS, 184 F.3d 1029, 1036-37 (9th Cir. 1999); Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997).

[105] Marouf, supra, at 52 (citing 8 U.S.C. § 1101(a)(42)(A) (2006)).

[106] See Javaherian, Seeking Asylum, supra at 439.

[107] Id.

[108] Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005).

[109] Hernandez-Montiel v. INS, 225 F.3d 1084, 1094-95 (9th Cir. 2000), overruled on other grounds by Estrada-Posadas v. INS, 924 F.2d 916 (9th Cir. 1991).

[110] Lukwago v. Ashcroft, 329 F.3d 157, 178-79 (3d Cir. 2003).

[111] Kasinga, supra

[112] Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998).

[113] Matter of H-, Int. Dec. 3276 (BIA 1996).

[114] Aguilera-Cota v. INS, 914 F.2d 1375, 1380 n.3 (9th Cir. 1990).

[115] Bernal-Garcia v. INS, 852 F.2d 144 (5th Cir. 1988).

[116] Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009).

[117] Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996)

[118] Barrios v. Holder, 567 F.3d 451, 456 (9th Cir. 2009)

[119] See Germain, Seeking Refuge, supra at 74.

[120] In Chang v. INS the court granted asylum to an individual who defied orders of Chinese officials to return to China and stated, “simply because he did not couch his resistance in terms of a particular ideology renders his opposition no less political. Id. citing Chang v. INS, 119 F.3d 1055, 1063 (3d Cir. 1997).

[121] See, e.g., Rivera-Moreno v. INS, 213 F.3d 481, 483-84 (9th Cir. 2000); Umanzor-Alvarado v. INS, 896 F.2d 14, 15 (1st Cir. 1990).

[122]   See Germain, Seeking Refuge, supra at 74 citing Matter of C-Y-Z-, Int. Dec. 3319 (BIA 1997).

[123] Torture under the Convention Against Torture has a distinct definition and may not be available to all accused witches, and just as with their claim for asylum, it will be heavily dependent on the type, amount, and credibility of evidence presented. David A. Martin, T Alexander Aleinikoff, Hiroshi Motomura, & Maryellen Fullerton,Forced Migration: Law and Policy 499 (2007).

[124] C.K. Meek, Law and Authority in a Nigerian Tribe 79 (2d prtg. 1950).

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