There is no uniform definition for the term “persecution.”  While different courts have attempted to define the term, its meaning has remained frustratingly elusive.  A new article by Scott Rempell, Assistant Professor of Law at South Texas College of Law, sets forth a workable definition of the term that is certainly worth considering.  About his article, Prof. Rempell writes:

Most people, even those with no immigration background, have some idea about what persecution means.  They know to equate persecution with inflicted suffering.  But beyond a general understanding that persecution is tied in some way to suffering, it’s much harder to pinpoint persecution’s precise meaning.

During my years practicing immigration law at the Justice Department, I was always struck by the wide divergences of opinion on the meaning of persecution that surfaced in the immigration agencies and federal appeals courts.  Does the harm have to be severe or will any harm suffice?  Will one instance of harm be sufficient or must the harm be systematic?  Does the persecutor need to intend to punish the victim or are the consequences of the persecutor’s actions sufficient?  Courts have come out on both sides of each of these questions, and many other questions as well.  It’s surprising that a term this central to asylum can be interpreted so differently, particularly since the stakes for asylum applicants are so high.

After years of head scratching, I finally found some time this summer to sit down and see whether I could come up with a more uniform understanding of persecution.  In the end, after I stripped away the superfluous criteria and eliminated factors that pertain more directly to the other elements of the refugee definition (such as the nexus requirement), I arrived at the following definition of persecution: “The illegitimate infliction of sufficiently severe harm.”  If you’re interested in how I arrived at this definition, take a look at my paper, recently posted on SSRN.  Here is a copy of the abstract:

Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.

Prof. Rempell welcomes feedback at srempell@stcl.edu.