The Black Lives Matter movement has helped bring attention to the problem of police violence in the African-American community. To me, the problem is a symptom of broader issues in our society: Institutionalized racism that has reduced educational and economic opportunities for African Americans, the American penchant for punishment over prevention, police culture and the militarization of many police forces. Regardless of the root causes, many individuals are fearful that they—or their family members—will be harmed or killed by law-enforcement officers because of their race. As an asylum attorney, I’ve received inquiries from several such people. They want to know whether they are eligible for asylum under international law.
To qualify for asylum, an applicant must demonstrate that she meets the definition of a “refugee.” According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The first thing to notice is that in order to qualify for asylum, an applicant must be “outside the country of his nationality.” In other words, you cannot be a refugee, as that term is defined under international law, unless you leave the United States.
Assuming you reach another country and apply for asylum, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. Although the term has never been clearly defined, “persecution” is generally considered “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” People who have been harmed by the police (and survived) may be able to demonstrate past persecution, depending on the severity of the harm. Imprisonment, by itself, is probably not a severe enough harm to constitute “persecution” (though perhaps solitary confinement is). Physical violence may be enough, depending on what happened. Physical violence that has resulted in severe injuries, or sexual violence, probably does rise to the level of “persecution.”
If you have been persecuted in the past, and if the persecutor was motivated to harm you because of your race (or other protected ground, like political opinion), then you would likely be considered a refugee under international law.
For people who have not been harmed in the past, but who fear future harm, the situation is more complex—and the likelihood of obtaining asylum is probably lower. One path to asylum involves a “pattern and practice” of persecution against a specific group. Where the entire group–for example, Tutsis in the 1994 Rwanda genocide–faces persecution and the asylum applicant demonstrates that she is a member of that group, she can receive asylum. To demonstrate a “pattern and practice” (at least under U.S. law), the applicant would have to show that the persecution is systematic, pervasive or organized. I have not seen evidence that the persecution of Blacks in America is organized. However, one could argue that it is systematic (in a “now we see the violence inherent in the system” sort-of way) and/or pervasive (i.e., widespread). Both these points strike me as relatively weak given the high standard necessary to prove “pattern and practice,” but I suppose different fact-finders might reach different conclusions depending on the evidence presented (how often does violence need to occur for it to be considered “pervasive,” for example?). One Canadian court that examined the matter found African Americans do not face a pattern and practice of persecution in the U.S. and denied asylum to a Black man who feared persecution by the police (the court found that he had not suffered “past persecution,” and this made his case more difficult).
In the absence of a “pattern and practice,” an African-American asylum seeker could still obtain asylum if he demonstrates a reasonable possibility of persecution based on his race (or other protected ground). In interpreting international law, U.S. courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average African American would be able to show that he faces a 10% chance of persecution by the police. Indeed, in 2015, there were about 46.3 million African Americans in the United States. During that same year, 102 unarmed African Americans were killed by police. This is obviously far less than 10% (it’s about 0.0002%). Of course, if we focus on young men, and include other harm (aside from killing), the likelihood of persecution is higher, but I still suspect that it would be difficult to show a 10% chance of harm.
Although the average African American would probably not meet the standard for asylum, some African Americans–those who have received specific threats and, of course, those who were previously persecuted–might be able to prove that they face a likelihood of harm and thus meet the definition of “refugee.”
Even for people who are deemed “refugees,” this may not be the end of the story. You still may not qualify for asylum in a new country if that country believes you can relocate to a safe place within the United States, or if the persecutor (here, the police officer) was a rogue actor and the U.S. government is able and willing to protect you. Of course, you could also be denied asylum for a host of other reasons, depending on the specific laws of the country where you are seeking refuge.
In the end, it seems that most African Americans would not qualify for asylum, but some might: Those who have been persecuted in the past, and those who have been threatened with harm. If you are actually thinking about seeking asylum, it would be a good idea to talk with a lawyer in the new country before making any plans. While I doubt that many African Americans will actually leave the U.S. to seek asylum abroad, the fact that some people are considering this option speaks to the sad state of affairs in our country.
What a useless article… please do blacks a favor and delete this from the internet searches . Your entire site is based on giving asylum to illegals crossing the border to get JOBS… not escape some sort of oppression in their countries… Yet your standards for BLACKS who have a far worse history of OPRESSION than any work migrant is through the ROOF! I think you liberals only care want to keep blacks in the USA voting for the useless democratic party. You claim blacks have little desire to leave and declare asylum YET BLACKS HAVE BEEN LEAVING IN DROVES! EVEN WITHOUT ASSYLUM STATUS! Half my family has left…
The USA clearly does not want other countries like CANADA declaring that blacks AND native Americans Qualify for Asylum because that would be a black eye… THATS why the bar is so high for American Blacks claiming asylum. Iran and Russian and even CUBANs get asylum in Canada while facing FAR LESS OPRESSION THAN BLACKS AND NATIVES! Shame on you for minimizing black people desire to leave the U.S.A . Its funny how racist justify their asylum laws… Haitians are turned back but Cubans and Mexicans are accepted with open arms… Mexico is far more advanced than Haiti! Its clear you have a liberal bias that is intent on flooding the USA with as many illegals as possible regardless of their reasons for coming to the USA. AS DENOTED in your article here: https://www.asylumist.com/2022/10/12/the-message-behind-red-state-governors-migrant-transports/
As such, the topic of BLACK ASSYLUM STATUS IS FAR BEYOND YOUR SMALL MINDED SCOPE! You will NOT keep blacks in America voting for your USELESS democratic party!
Yes, this topic is far beyond my small mind. Thank you for enlightening me. Take care, Jason
Cut the crap you sorry pos. You could care less about Black Americans and the issues we face.
With regards to the discussion of African Americans seeking asylum abroad, I have a comment about the whole philosophy of justice, law, and order fails societies that proclaim egalitarianism, life, and liberty to the trash heap of hypocrisy and racial tyranny. Imagine a people persecuted for more than 400 years of a well documented and lamentable history of brutal dehumanizing enslavement, rape, murder, lynching, social, economic racial injustice and persecution, ongoing ad nauseum, and yet their is no provisions anywhere on the planet to intervene to put a halt or escape from their suffering? Furthermore, the laws and conventions are interpreted to the letter and comma of the law as written that ignore the obvious suffering and corrosion of their humanity before the plain sight of day and history? The very convention under discussion written in 1951, an era of significant racial hatred, lynchings, and assassinations of the very same people, still governs today their capacity to escape it. Even if Emmet Till had not been lynched in 1955 he could not escape the racial terror that consumed him, nothing has changed not even the biased interpretations of words like “persecution” when in the plain light of day the reality is heinous and shocks the human conscious. Racism hides behind every letter of the law in every court where there are there is a society of dubious honor, perhaps this is the reason why asylum seekers need lawyers. And, to those who suffer and are turned away the message is clear: We don’t want you here any more than they want you there, perhaps even less. There is no honor in a hypocrisy only shame and villiany.
Well said. The asylum law was written by white men largely for white men. The efforts since the 1990s to expand the pool of people protected by the law in the US are now being rolled back, and so fewer people are able to obtain protection. I don’t feel particularly optimistic these days, but I do think society has improved over time, and hopefully that trend will continue. Hopefully. Take care, Jason
You stated that there was no way to prove or not prove that African-Americans had a legitimate fear of harm and that the litmus test number of 1-10 could not be met. Did this article take into account the UN Media Release by their fact finding team in the same year? http://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17000&LangID=E
I myself believe it was pretty clearly stated that the African-Americans of this country endure a system of systemic racism that is oppressive and impacts them in just aabout eeveery aspect of theeir lives. Coupled with the recent Strieff v Utah where Justice Sotomayor strenuously protested on the grounds that it sets a dangerous precedent that will directly affect people of color in this country, it seems clear that the atmosphere has changed dramatically. Hasn’t it?
While I think there are reasons to fear, I do not think the average African American would qualify for asylum under international law. Of course, it depends on the proof of the case and whether the person was harmed in the past. The above article did not consider the report you mention. Take care, Jason
I am currently living in Mexico under grey legal status. I was convicted and sentenced to 10 years in a Georgia prison for ” intent to defraud a retailer” in 2011. This is a demonstrably harsh sentence and it is the maximum sentence for first time offense that was not even committed in the jurisdiction of the county that convicted me. The county court is known for racism and my court record includes bold testimony that I was pulled over because I was Black and driving a newer model Mercedes and not for any traffic or criminal violation and no one had reported me or anyone looking like me to be a suspect in any violation. When paroled after nearly 3.5 years, I immediately fled. What do I face trying to get asylum from Mexico or anywhere else?
https://www.washingtonpost.com/opinions/could-black-people-in-the-us-qualify-as-refugees/2015/08/14/b97a628a-406c-11e5-bfe3-ff1d8549bfd2_story.html
Even if the sentence is unduly harsh, it is usually very difficult to get asylum if you are fleeing your country due to prosecution for a crime. But I do not know the law of Mexico, and I recommend you talk to a lawyer there to see if there is any way to regularize your status. Take care, Jason
Is it prosecution when there is no jurisdiction?
To further illustrate it, if its a charge to litter on a federal highway, could a local county or state prosecute you legally for not littering on their streets or highways, but for littering in other states?
And give out a sentence harsher than the Feds exponentially? Amongst all the federal investigations, media scandals, and the prosecutor in the same case investigated for fraud also? I think I can easily demonstrate a southern kangaroo court almost easily. They’re so arrogant, they don’t really even hide it.
Under US law, there is a lot of case law related to distinguishing between prosecution and persecution. Other countries probably have less developed case law on this point, but you could make that argument. I do think it is best to get help from a lawyer or someone who knows the laws of your new country to make sure you present the best case possible, and that you know all your options. Take care, Jason
Why are countries so resistant to grant African Americans asylum? I think we qualify. I want to fly overseas and renounce my US citizenship. Us this easier? How does this work? Should I hire a lawyer?
You should talk to a lawyer in the country you plan to go to. If the law of that country is similar to US law, I think it will be difficult to get asylum unless you have been harmed in the US in the past. Even then, it may not be easy. As for renouncing citizenship, that is also not so easy, and I would recommend against it, as it probably will not help you win asylum, and can just cause more problems. Take care, Jason
I think u.s. influence on “global hegemony” has something to do with it.
https://www.quora.com/How-easy-is-it-for-an-American-to-move-to-Europe/answer/Sophia-Harrison
Given the recent election & the rise in racist/xenophobic violence; does this change the likelihood that Black Americans & US born Muslims could’ve granted asylum elsewhere?
Maybe, but for the reasons I discuss above, I think it is still difficult to claim asylum from the US based on race or religion. If you plan to do that, talk to a lawyer in the country where you intend to go, in order to see whether you have a chance to win asylum there. Take care, Jason
hi baby
Am living in Mississippi -I applied for asylum in Houston 4months ago.Do you know what is the current processing time for New orelans sub office .
Regards
I do not, but it is probably slower than the Houston office (sub-offices are generally slower than the main office). Maybe you could email Houston to ask (you can find their email if you follow the link at right called Asylum Office Locator). Take care, Jason
what do you know about the dual criminality law.
Never heard of it, sorry.
I am asylee and i have a RTD . I wanna go to see my parents in Lebanon i called the lebanese embassy they told me you can’t use your RTD you should to use your syrian paasport is there any problem if i used my passport or what is the risk ? . It will effect my citizenship application in the future. Thank you si much
If possible, I would get some written documentation that you cannot use the RTD to visit Lebanon. That way, if you have a problem one day, you can show this to the USCIS to explain why you had to use your Syrian passport. Also, if your parents have any health problems, get documentation, to show why you needed to visit. It is possible that using the passport will cause you some trouble, but given the circumstances – and especially if you have some documents to show why you traveled – you should be alright. Take care, Jason
Hi Jason
I did interview June 1 in Chicago asylum office, till now I have not got decision. how long takes for making decision? and Last week I received address updated notice, what that mean?
Thank You.
It is not possible to predict how long it will take for a decision – we have cases that take a few weeks; others take years. You can contact the asylum office to check on the status (their contact info can be found if you follow the link at right called Asylum Office Locator). I do not know why they sent you an address update notice. Do make sure that they have your current address. Take care, Jason
Hi Jason
What I miss for travel document.
Passport
2 pictures
589 notice received
Reasons why to travel ?
How long it takes to get approved? and the probability success?
Hi Jason
Could I get your answer, please?
Jason why you ignore my question?
If I did not respond, it means I somehow missed it. You can post it again if you want and I will try to respond.
Hello Jason
I have one question: the thing is that I sent an i-589 to the Asylum Office. My roommate helped me to fill in the form. My friend, who is a lawyer, said that the form was not filled professionally: there were many blank spaces and omissions, the description of the persecution was very general, saying that ‘yes, i belong to opposition’ and that’s it. I am thinking about sending a ‘rectified’ I-589 with proper responses. Is it possible? Will the Asylum Office see this as a strange move? Should I retain a lawyer?
You can submit a corrected form, but I think you should explain why you are doing that. You can also submit a detailed affidavit, explaining why you need asylum. You can submit this before your interview to the local asylum office (different offices have different rules, but in my local office – Virginia – you have to submit documents at least one week before the interview). I do not think you will have a problem. As for hiring a lawyer, I wrote about that on July 7, 2016 – maybe that posting would be helpful. Take care, Jason
Thank you, Sir. Appreciated.
Dear Jason
Thanks again for your efforts ,am asking the work permit is it valid for year or 2 year ??? Is there some way to make it 2 years ? Is there some people get it for 2 years ???!!!
Thanks for your concern
Its valid only for one year based on pending asylum case, but I think that when you have Asylee status (grant asylum) your EAD will be valid for 2 years.
Thankz zac
I think some (or maybe all) people whose asylum case is granted get the card for 2 years. Unfortunately, people with asylum pending get the card for only one year and have to renew it. USCIS should change this, but so far as I know, they have not. Take care, Jason
Well, maybe you have some authority that I don’t know about? But the Third Circuit has said that “persecution includes . . . confinement.” Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003). The European Court of Human Rights also ruled recently that while the mere threat of incarceration for gay sex is not persecution, actual incarceration for gay sex would be persecution.
I’m sure there are tons of decisions out there saying that a particular instance of imprisonment wasn’t bad enough to be persecution; courts give IJs such ridiculously wide latitude on appeal that almost anything can be held not to be persecution. I’ve seen an opinion sustaining an IJ who said that a mob attacking a guy with knives, cutting him up and leaving him for dead wasn’t persecution, because the event was too “isolated.” But darned if I can see anything that would say that incarceration *can’t* be persecution without solitary confinement. I think it’s relatively clear that confinement can be persecution, and will be held to be persecution in the same arbitrary and seemingly random way that most asylum law is applied.
Sorry if that was not clear – I think confinement can be persecution, but I think it generally would not be considered persecution without more. In the case you cite, for example, the alien’s parents were murdered and he was threatened. The idea that someone would be detained for being gay, for example, is very offensive, but if the detention were only for a short time, and if prison conditions were acceptable, then I think that person would have a hard time showing that he faces persecution. In other words, I think the conditions and length of incarceration would be key to determining whether that incarceration = persecution. Take care, Jason
The RAIO Training materials on the definition of persecution include the following under violations of core human rights (which are usually considered acts of persecution):
• prolonged detention without notice of and an opportunity to contest the grounds for detention
Under those circumstances confinement would be considered to be past persecution. But the issue becomes one of what constitutes “prolonged detention”. Asylum and Refugee officers spend considerable time discussing that. There is general agreement that if there is a law that a prisoner has to be presented before a magistrate within a certain period of time, charged, and given some opportunity to answer the charges, and the confinement goes for any significant period beyond that, even if the person is released without ever appearing before any official and never officially informed of charges, that constitutes persecution. Officers are trained to look for actions that are designed to put a person in fear of life or liberty. The other issue that comes up often are numerous short confinements without any legal process. Those are often seen as, cumulatively, rising to the level of persecution. And that would be very consistent with the type of treatment that African Americans experience driving while black.
That seems reasonable. But what about cases where the government doesn’t hold you for a long time without due process, but promptly puts you on trial for speaking out against the government, and then sentences you to to twenty years in a clean, well-lighted prison when it finds you guilty?
I admit, I don’t know any case where that happened, because every country I know of that sentences people to twenty years for their political opinions also has prisons that are hellholes of abuse, starvation and torture. But would that really not be persecution if the prison conditions were humane?
Now you are getting into the real weeds. There are arguments that a person could make, but they would really have to be able to document them. Adjudicators are taught to consider the possibility that in some cases prosecution can be used as a form of persecution if it can be shown that sentencing is based on protected characteristics or even more importantly, if the decision to go ahead and prosecute is based on a protected characteristic. Then there is a possibility that there is persecution. But there is also a problem with a conviction possibly raising a bar. It isn’t always clear when a bar really applies, especially if the conviction is a foreign conviction. Or the serious nonpolitical crime was committed overseas.
In training a scenario is posited where the officers confront a situation where an individual is convicted of homicide, but it is a clear case of self defense, but convicted and sentenced to jail anyway based on ethnicity. There is a political change that does not get rid of the ethnic prejudice, but softens it enough so that the case is reopened, the individual is released from jail to work on his case, with the clear, but unofficial, intent that he should just run for it. The question then becomes whether or not the officer can take into account the affirmative defense and not apply the bar. The scenario was based on a real refugee case, where bars do not apply, but inadmissibilities do. The refugee was processed for a waiver and admitted to the US as a refugee. But in the US there is no case law whatsoever on this type of scenario.
In other words, this all gets very complicated very fast.
This reminds of the German home schooling case, where the parents faced imprisonment under “good” prison conditions for refusing to send their children to public school. The IJ granted asylum, but the BIA reversed and the 6th Circuit (?) upheld the BIA. I imagine it is very rare that a government would detain a person for a protected reason and keep them in good conditions, but I suppose it is possible.
Also, I am not convinced that detention for traffic stops, even if their is an underlying motive related to race, would rise to the level of persecution. If I were representing such a person, I would include country condition information to show that minorities are targeted in this way, and that they face other problems from the police/government. I do think that would be a legitimate claim, but if I were the Judge, I would have a hard time finding persecution (except of course in cases of actual police/government abuse or physical harm).
I do agree that pretextual cases are tricky. And the scenario you describe kind-of makes my head hurt.
Hi.i have applied for political asylum .My interview not yet done.My Question is that:
I want to submit more documents to Asylum office,how i can submit those?face to face to go in office of by post?now or at the time of interview?
You must submit them by mail or in-person before the interview (in my local office, they must be submitted at least one week in advances). You can get info about the requirements for your local office by checking their website and emailing them. You can find the website it you follow the link at right called Asylum Office Locator. Take care, Jason
Good overall roundup, Jason. I would question only one point; I would certainly think that imprisonment can constitute persecution, even if it’s not solitary, if it’s inflicted on one of the five persecuted grounds. For example, I would certainly think that a Japanese-American in 1942 would have qualified for asylum in another country if the Refugee Convention had existed then (although his asylum would have been rightfully terminated in 1945 when America stopped locking Americans up for their national origin). Or for another example, Denise Harvey was granted asylum in Canada when America sentenced her to 30 years imprisonment for coitus with a sixteen-year-old , and there was no suggestion that the the 30 years had to be in solitary to make it persecution.
With black Americans, though, the case is harder because America never openly imprisons them just for their race. There’s always some legitimate criminal charge, and I think we must honestly admit that in the vast majority of those cases, the charge is true. In the few cases where it’s false, it could be hard to show that it wasn’t an honest mistake rather than purposely targeting an innocent victim for his race.
What I think most black Americans could demonstrate is that they are sentenced more harshly than whites for the same offenses especially nonviolent ones like marijuana possession/distribution; the statistics on that are pretty clear (although I don’t actually know if the stats are controlled for the defendant’s prior criminal history). If you really committed a crime and the government had legitimate reason to imprison you, but race is the only reason you got ten years instead of seven, is that persecution? Would race be “one central reason” for the persecution, as U.S. law puts it? I don’t know.
I am not sure I agree with the first point: If the harm does not rise to the level of persecution, the person would not qualify for asylum, even if the harm was based on a protected ground. In the case of the Japanese-Americans, they could argue that detaining them was just a first step towards something worse, also that conditions in the camps = persecution, that they had their properties seized, and that children were detained and their threshold for suffering is much lower. In the case of Denise Harvey, she got asylum because the sentence was so long and because her behavior was not even criminal conduct under Canadian law. I suppose I would agree that if someone gets a ridiculously long sentence (like she did), they could argue that it is persecution, even if prison conditions are not abnormally bad. Your question about disproportional sentences is a good one (and complicated too). Assuming a criminal receives a longer sentence due to his race, I imagine he could show that he was targeted on account of a protected ground, and maybe even that his race was one central reason for being targeted, but I think he would have a hard time showing that the additional time in prison is persecution. Also, he could be barred from asylum due to his conviction. Where it become even more difficult is for a person who faces the death penalty, and where he argues that the death penalty would not have been imposed “but for” his race. Interesting. Thank you for the comment, Jason
Now you are getting into prosecution as persecution, something that asylum adjudicators only deal with rarely, thankfully. Those are the most difficult cases.
I had a case many years ago involving a political operative from a country that had been under strong man dictator rule for about a decade, who was opening up the country to reasonably free elections. There were three main parties contesting the election, one formed by the strong man ruler and two parties that had been the two primary parties before the coup more than a decade earlier. In the course of the election campaigning one of the other two parties organized a political rally and a political organizer from the second old party used connections with the police department to disrupt the rally and a dozen or so members of the party were shot and killed. The political organizer admitted that he accompanied the police in raiding the rally and was himself armed, but claimed that he only shot in the air. His party won the election a few weeks later and nothing happened as a result of the raid.
Two years later the other party won an election and when they came to power and cleaned out the police departments the political operative was charged with murder. He was arrested, bailed out and skipped the country, came to the US and applied for asylum.
His claim was that the late charges and prosecution were politically motivated, even though he admitted sufficient facts to warrant an investigation and possibly an indictment. Since the strongman government did not charge him with anything ahead of the election it was a difficult call. The delay did argue that there was some political motivation, but the DOS country reports indicated that the country had an independent judiciary that was relatively free from political influence.
Won’t bother with how it turned out, but prosecution as persecution is something that is recognized by most adjudicators and when they have to confront it it is always a mess.
Very interesting case. I wonder if such a person might have a harder time today. Whenever we have a police officer-type from another country, it seems there are long delays in the case. I also have my suspicions about people like that who were involved in persecution, but it is unclear how involved they were. He claims to have shot into the air, but that is easy for him to say after the fact. Also, maybe the fact that he was not prosecuted at the time is related to the fact that his party was protecting him. For cases like this, I think my job as an advocate is a whole lot easier than the job of adjudicator. Take care, Jason