Well-Founded Fear of Persecution

207, of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. 1158
8 C.F.R. 207
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A)

Copyright 1999, 2000. VIKRAM BADRINATH, P.C. All rights reserved.


Recently, there has no been area of immigration law that has generated more controversy and resulted in more litigation and confusion that the law relating to refugees and asylees; the law relating to those who have fled to the U.S. in search of a temporary or permanent sanctuary due to persecution in their home countries. The law, as a result, has become increasingly complex and is no longer limited, as it once was, to soley persons fleeing communism. Instead, protection is now afforded to those from most countries through a vast network of complex statutes and regulations concerning asylees and refugees, but parolees, persons seeking withholding of removal, defrred enforced eparture, and temporary protected status.

The main sources of refugee law flow from United States foreign policy and international agreements/instruments. The principal international agreement which affects the U.S. obligations toward refugees is the 1967 United Nations Protocol Relating to the Status of Refugees, which the U.S. acceded to in 1968. This Protocl adopted Artiles 2-34 of the United Nations Convention relating to the Status of Refugees which has been in force since 1951. Accordingly, this Protocol is the main instrument governing the treatment of asylees and persons fleeing persecution, and because it contains provisions, such as the definition of "refugee," which has since been incorporated into domestic law. Subsequently, the domestic law of the U.S., as it affects refugees is found principally in the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 103 (1980). Under U.S. immigration law, there has been no area of The U.S. Department of Justice published a rule on February 19,1999

Under U.S. immigration law, a person fleeing persecution may seek entry into the U.S. under several different categories:

A refugee is different than an asylee. A refugee is considered as a person outside his country of nationality and not within the United States or at the borders of teh United States, who is unable or unwilling to return to his or her home coutnry because of persecution or a "well founded fear of perseuction on account of race, religion, membership in a particular social group of political opinion." See 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A). In certain circumstances, however, a person may be considered a refugee if they are still in their home country if the President certifies the existence of such refugees after consultation with Congress. See 101(a)(42)(B), 8 U.S.C. 1101(a)(42)(B).

Forms of Protection Available Under U.S. Law

Refugee, Asylum, Withholding and Article 3 protection are all different under the Immigration and Nationality Act. The chart below summarizes the different claims under the 1951 Refugee Convention:

Asylum Claims Article 3 Withholding Article 3 Claims
  • Not a treaty obligation
  • A treaty obligation
  • A treaty obligation
  • Discretionary
  • Mandatory
  • Mandatory
  • One-year filing deadline
  • No filing deadline
  • No filing deadline
  • Standard requires a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, political opinion in the country in question
  • Harm feared must be on account of a protected ground
  • Standard requires that it is more likely than not that the person would be persecuted on account of race, religion, nationality, membership in a particular social group, political opinion in the country in question
    • Harm feared must be on account of a protected ground.
    • Standard requires that the person is more likely than not to be tortured in the country in question
    • Harm feared must be on account of a protected ground.
    • Persons ineligible for protection include certain criminals, terrorists, persecutors
    • Persons ineligible for protection include certain criminals, terrorists, persecutors
    • No bars to protection
    • Basis for adjustment to legal permanent resident status
    • Not basis for adjustment to legal permanent resident status
    • Not basis for adjustment to legal permanent resident status
    • Immediate family members may be granted same status derivatively
    • Family members may not be granted derivative status
    • Family members may not be granted derivative status
    • Grant confers permission to remain in U.S.
    • Grant prohibits only removal to country of risk, does not prohibit removal to non-risk country
    • Grant prohibits only removal to country of risk, does not prohibit removal to non-risk country

    Definition of Persecution

    The Refugee Convention, as ratified by the U.S. Senate, provides that persecution is "a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive." In order to constitute persecution, an the act must be:

    An applicant will not be eligible for Refugee status (but may be eligible for Withholding of Removal or Deferral of Removal, provided they are already in the United States) if they have:

    1. ordered, incited, assisted or otherwise participated in the persecution of others;
    2. been convicted by a final judgment of a "particularly serious crime" in the U.S., constitutes a danger to the community
    3. evidenced serious reasons for believing that the applicant has committed a serious, nonpolitical crime outside the U.S. prior to the arrival
    4. demonstrated reasonable grounds for regardint eha lien as a danger to the security of the U.S.
    5. been found to be inadmissible as a terrorist under 212(a)(3)(B)(i)(I)-(IV) or 237(a)(4)(B), unless there are not reasonable grounds for regarding the applicant as a danger
    6. been firmly resettled
    7. been or may be removed, pursuant to a bilateral or multilateral agreement ot a safe third country in which the person's life or freedom would not be threatened and he would have access to a full and fair procedure for determining asylum
    8. previously applied for and was denied asylum in the United States, or did not file his applicant within one (1) year after his arrival in the United States, unless he can demonstrate changed circumstances in their home country or extraordinary circumstances for failing to meet the one (1) year deadline.

    A refugee must prove and document his harm or suffering with either documentary evidence (affidavits, reports, arrest warrants, "threat" letters, articles, newspaper clippings, proof of membership in an organization, etc.) or testimonal evidence (affidavits, witnesses, etc.)

    Application Procedure

    In order to seek classification as a refugee from outside the United States, an alien must file an Application for Registration and Classification as a Refugee (Form I-590) in conjunction with a Biographical Information form (Form G-325A), and a fingerprint card (Form FD-258), with a consular officer or an overseas U.S. INS officer. It is important to note that an application cannot be presented at any consular office or to any consular officer. It may only be presented to those offices or officers who are specifically designated worldwide for the acceptance of refugee applications unless direct filing is impracticable, in which case the application can be preliminarily filed with a designated consular officer. It must then be sent to a post that handles refugee matters. The applicant must appear in person at one of the few designated posts for an "inquiry under oath" as to the person's admissibility. See 8 C.F.R. 207.2(b). Currently, only the following consular posts accept refugee applications: Bangkok, Thailand; Belgrade, Yugoslavia; Buenos Aires, Argentina; Cairo, Egypt; Djibouti, Djibouti; Frankfurt, Germany; Gaborone, Botswana; Hong Kon; Islamabad, Pakistan; Jakarta, Indonesia; Karachi, Pakistan; Khartoum, Sudan; Kinshas, Zaire; Kuala Lumpur, Malaysia; Lusaka, Zambia; Madrid, Spain; Manila, Phillipines; Mexico City, Mexico; Mogadishu, Somalia; Nairobi, Kenya; New Delhi, India; Panama City, Panama; Rio de Janeiro, Brasil; Rome, Italy; San Jose, Costa Rica; Seoul, Korea; Singapore; Taipei, Taiwan; Tokyo, Japan; Vienna, Austria.

    An applicant is also required to submit a standard medical examination. Finally, an applicant must be "sponsored" by a responsible person or organization that can provide assurances of both employment and housing on entry and of transportation from the applicant's present residence to his final destination within the United States. See 8 C.F.R. 207.2(d). This is usually, and normally, accomplished through voluntary agencies under an umbrella organization called the American Council for Voluntary Agencies.

    If an applicant is approved, an applicant has only four (4) months to enter the United States. The failure to do so usually results in the invalidation of the application. In this regard, spouses and minor children of refugees are entitled to enter under a derivative beneficiary status, provided that they are not otherwise inadmissible to the United States. To initiate an application for a family member, the refugee must file Form I-730 within two (2) years of the refugee's admission to the United Staes or before Feb. 28, 2000, whichever is later.

    For more information about applying for or seeking classification as a refugee, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.