To be granted asylum in the United States, the immigrant must show that he is a “refugee” under the definition of the Immigration and Naturalization Act. A refugee is someone who is unable or unwilling to return to their 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. While an immigrant may qualify for asylum based on these different types of persecution, most refer to all asylum claims as “political asylum”
Once an applicant establishes that he was either persecuted or has a reasonable fear of persecution, an immigration judge may deny the application where there is no or little likelihood of present or ongoing persecution. For example, where the applicant suffered past persecution but circumstances changed in the home country or the government from which the threat of persecution rose has been removed from power, the immigration judge may deny the asylum application. The Board of Immigrant Appeals held that where there are compelling reasons arising out of the severity of the past persecution, a favorable exercise of discretion is warranted for humanitarian reasons. The asylum application will therefore be granted even where there is little likelihood of present or future persecution. All factors both favorable and adverse should be considered. The judge may consider the severity of what happened to the applicant, the applicant’s immigration history, their family ties in the United States and in their home country, their criminal history, health records, and how long they have resided in the U.S.
In Matter of S-A-K and H-A-H, 24 I&N Dec. 464 (BIA 2008), a mother and daughter who provided evidence of past persecution in the form of genital mutilation with aggravated circumstances were found to be eligible for asylum on humanitarian grounds. In that case, the women provided medical records and testified to being physically mutilated, raped, and abused due to their gender. The victims did not establish credible fear of further harm based on their membership in a social group. The Board held that they should be granted asylum based on humanitarian reasons because they suffered an atrocious form of persecution that resulted in continuing physical pain and discomfort. They should therefore not be expected to return to their home country and be granted humanitarian asylum.
An applicant that establishes past persecution but no longer has a well-founded fear of persecution may also be granted humanitarian asylum if there is a reasonable possibility that he or she may suffer other serious harm in their home country. The other serious persecution can be unrelated to the past harm and need not be inflicted because race, religion, nationality, membership in a particular social group, or political opinion. The harm, however, should equal the severity of persecution. Mere economic disadvantage or the inability to practice one’s chosen profession is not enough to be a serious harm.
The other serious harm should be cognizant of the applicant’s country conditions. They may include civil strife, extreme economic deprivation beyond economic disadvantage, or situations where the applicant can suffer severe mental or emotional harm or physical injury. Immigration courts have concluded in extreme circumstances where harm results from the unavailability of necessary medical care could be a serious harm warranting humanitarian asylum. Where the applicant is not able to access psychiatric medications needed to function may also be a serious harm. Another example of a serious harm is where an applicant who suffers from AIDS is not able to access the proper mediation in their home country.
In short, to qualify for Asylum an applicant must show that they were either persecuted or has a well-founded fear of persecution and have a current reasonable fear of persecution. Where the judge concludes that there is no current fear of persecution, due to change of circumstance for example, the judge can grant the asylum on humanitarian basis within his discretion if the judge finds that the past persecution was so severe or that the applicant will face other serious harm if they were to return to their home country.