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Jeffrey S. Chase, Oct. 25, 2019
"During a recent radio interview, the reporter interviewing me expressed surprise when I mentioned that an asylum applicant need only show a ten percent chance of being persecuted in order to succeed on her claim. That standard was recognized 32 years ago by the U.S. Supreme Court in the case of INS v Cardoza-Fonseca, 480 U.S. 421 (1987). The holding represented a dramatic shift in asylum eligibility, as prior to the decision, the BIA (and therefore, the immigration judges bound by its decisions) had interpreted “well-founded fear” to require a greater than fifty percent chance of persecution. But what was the practical impact of this change on the adjudication of asylum claims?
Following the Supreme Court’s decision, the BIA and circuit courts set out to define what an asylum seeker must show to satisfy the lower standard. The general test adopted by the circuit courts requires a finding that the asylum seeker possess a genuine subjective fear of persecution, and that there is some objective basis for such fear in the reality of the circumstances so as to make such fear reasonable.1 Prof. Deborah Anker in her treatise The Law of Asylum in the United States emphasizes the link between the subjective and objective standards, noting that while the objective element is meant to ensure “that protection is not provided to those with purely fanciful or neurotic fears,” it is “critical, however, that the adjudicator view the evidence as the applicant - or a reasonable person in his or her circumstances - would and does not simply substitute the adjudicator’s own experience as the vantage point.” This is obviously quite different than the purely objective approach necessary under the prior “more likely than not” standard.
In Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019), the U.S. Court of Appeals for the Second Circuit, in an unpublished decision, once again considered the question of what is required for a fear of persecution to be “well-founded.” Although the primary target of the government’s persecution was the petitioner’s husband, an activist with the opposition Democratic Party in their native Albania, police twice sprayed the restaurant jointly owned by the couple with bullets, pushed the petitioner herself to the ground during raids of their home, and at one point threatened to kidnap the petitioner and sell her into prostitution if her husband did not back the ruling Socialist Party candidate for parliament. The local Socialist Party leader also threatened the petitioner that the restaurant would be burned to the ground with her family in it if they did not stop hosting Democratic Party meetings there.
The immigration judge found the petitioner to be completely credible and to have a genuine subjective fear of persecution. However, the IJ denied asylum on the ground that the fear was not objectively reasonable, because the authorities had opportunities to harm her when they were persecuting her husband, but in the IJ’s opinion, did not do so. The judge thus concluded that nothing suggests that the authorities would “suddenly” be inclined to harm the petitioner in the future if they had not done so in the past.
The Second Circuit rejected the above standard as “too exacting,” adding that the applicant’s fear can be objectively reasonable “even if it is improbable that he will be persecuted upon his return to his own country.” The court added that there only need be “a slight, though discernible, chance of persecution,” noting that the standard is whether “a reasonable person in the same circumstances would have such a fear.”
At oral argument, the Chief Judge of the Second Circuit, Hon. Robert Katzmann, directly asked the government attorney if she would be afraid to return to Albania if she faced the same facts as the respondent, adding that he himself would be.
The question of whether one in the asylum seeker’s shoes would be afraid to return is the proper approach to determining if the subjective fear is reasonable. Back in 1992, before either of us were appointed judges, my former colleague William Van Wyke, a brilliant legal mind, authored a much talked about article entitled “A New Perspective on ‘Well-Founded Fear.’” Judge Van Wyke’s approach was to consider the asylum seeker the factfinder: having assessed all of the facts in the home country, the asylum seeker decided that the threat of persecution was enough to warrant fleeing the country. In Judge Van Wyke’s perspective, the asylum adjudicator is placed in the position of an appeals court, reviewing the asylum seeker’s decision for reasonableness. Although such approach sounds radical, it’s really just another way of applying the circuit court standard.
However, too many decisions deny asylum because they pose the wrong question. If a traveler is told that the flight she has booked has a 10 percent chance of crashing, the question isn’t whether it would thus seem unlikely under an objective analysis that that the plane would crash, or whether in fact the plane did actually crash, or whether those passengers that did board the same flight landed safely and went on with their lives without incident. The question is whether based on the knowledge she possessed, was it reasonable for the passenger not to board the flight? Of course, the answer is yes. The objective likelihood that all would be fine wouldn’t be enough to cause any of us to board the plane. Therefore, that slight risk of danger was enough to render the passenger’s subjective fear reasonable. Or as the Second Circuit held in Qosaj, “no reasonable factfinder could conclude that” the petitioner “did not show at least a ‘discernible [ ] chance of persecution,’” which the Second Circuit confirmed as enough “to render her subjective fear objectively reasonable.”
But how often is this standard applied correctly in asylum adjudication? For example, case law allows an asylum adjudicator to conclude that an asylum applicant’s fear is not objectively reasonable based on the continued safety of family members who remain in the country of origin. But if there is a sufficient ten percent risk of persecution, that means that there is 90 percent chance that nothing will happen. Wouldn’t that mean that it is overwhelmingly likely that the remaining family would suffer no harm? If so, why should their safety to present undermine the claim? Or in assessing whether the government is unable or unwilling to control a non-state actor persecutor, shouldn’t the proper inquiry be whether there is a ten percent chance that the government would not afford such protection?2
It’s a shame that Qosaj wasn’t issued as a published decision. Nevertheless, attorneys might find it useful to reference at least in the Second Circuit as a reminder of the proper application of the burden for determining well-founded fear. And Congrats to attorney Michael DiRaimondo (who argued the case) and fellow attorneys Marialaina Masi and Stacy Huber of DiRaimondo & Masi on the brief (Note: I am of counsel to the firm, but had no involvement with this case).
1. See, e.g., Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987).
2. I thank attorney Joshua Lunsford for bringing this point to my attention."
Copyright 2019 Jeffrey S. Chase. All rights reserved.
Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys.