Humanitarian Asylum, The Forgotten Protection
- By Carolina Antonini
- September 11, 2014
- Refugees & Asylum
To obtain asylum in the USA, an applicant must demonstrate a well-founded fear of persecution that is based on a protected ground. There are five protected grounds: race, religion, nationality, political opinion and social group. The persecution must include evidence of past and future persecution. Demonstrating past persecution enables acknowledgement of possible future persecution. Given the length of time it takes many asylum applications to go through the asylum machine, it is not surprising that the Government is able to employ the presumption of future persecution by the passage of time, change of regime, death of a persecutor or other changed circumstances particular to the claim. Our focus today is this "future persecution" requirement or, more precisely, the lack thereof.
Asylum laws accept that there are times when future persecution based on a protected ground may no longer exist, but that it would also be inhumane to return the person to the country of their past persecution. The law specifically carves out two exceptions for protection; Humanitarian Asylum and Other Serious Harm.
Humanitarian asylum allows an applicant to receive asylum even if the Government has shown that the applicant's danger has ended and that there would be no future persecution. The applicant must demonstrate "compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”.1 There is no exhaustive list of "compelling reasons" and courts have not yet specifically defined the term. Generally, these cases involve harm that is greatly outside our society’s accepted norms, or those that have continuing physical consequences. Take, for example, the case of female genital mutilation (FGM); once the mutilation has been performed, there is no risk of future mutilation. However, we view the practice of FGM as an atrocious form of persecution that results in continuing physical and emotional pain and discomfort, thus, a grant of humanitarian asylum would be appropriate.2
Other Serious Harm:
An even less utilized and known category for an asylum grant is the "other serious harm" category. To obtain asylum on this basis, an applicant who has suffered past persecution based on a protected ground must “establish that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”.3 Thus, where an asylum applicant suffered past persecution based on a protected ground, but no longer has a well-founded fear of future persecution based on that ground, the applicant can still obtain asylum by demonstrating that “other serious harm” will befall them in their country. “Other serious harm” relates to harm that is not necessarily based on a protected ground or is related to the original persecution, but is serious enough harm that it is considered as severe as "persecution." In determining whether or not an applicant has established a reasonable possibility of “other serious harm,” adjudicators can look at many factors such as current conditions that could severely affect the applicant, civil strife and extreme economic deprivation, the potential for new physical or psychological harm that the applicant might suffer as well as other factors.4 Being returned to a country that is in the middle of a civil war or a health epidemic, for example, could be considered serious enough harm.
Asylum laws are amongst the most complicated of U.S. immigration laws. A grant of asylum can bring significant benefits to the individual, such as the ability to work and live in the USA, obtain a travel document, as well as, petition relatives and ultimately apply for citizenship. On the contrary, a denial of asylum can be extremely problematic, exposing the individual to deportation and return to the country of their persecution. Since many asylum claims are a matter of life and death, a poorly prepared or presented claim could lead to permanent harm. The importance of competent counsel cannot be stressed enough. Immigration judges are nearly three times more likely to grant asylum to an asylum seeker if they are represented by an attorney.5
Whenever possible, asylum seekers should find an experienced attorney to help them with their claim.
Speak to the Professional Atlanta Immigration Attorneys at Antonini & Cohen Today
If you are currently seeking asylum under any of the protected grounds, particularly if you are facing an emergency life or death situation, or would like to seek more information on this topic, please contact the attorneys at Antonini & Cohen at 404.850.9394 or complete a contact form.
Our team has vast experience in filing for all types of immigration benefits, including deferred action, prosecutorial discretion, and stays of removal. We will be happy to meet with you to analyze your particular circumstances and discuss the best possible avenue(s) for remaining lawfully in the US. We are all hoping for some form of immigration reform – if and when it happens, we look forward to helping you and your family.
1 8 C.F.R. § 208.13(b)(1)(iii)(A)
2 S-A-K- and H-A-H-, 24 I&N Dec 464 (BIA 2008)
3 8 C.F.R. § 208.13(b)(1)(iii)(B)
4 L-S-,25 I&N Dec. 705 (BIA 2012)
5 CS Monitor June 5, 2012