Will I Need a Phoenix Asylum Attorney to Seek Asylum?

Written by Diamondback Legal on December 1, 2022

In additional to American federal law, the United Nations’ 1948 Universal Declaration of Human Rights, the United Nations High Commissioner for Refugees (UNHCR) Refugee Convention of 1951, and the Refugee Act of 1980 are all intended to ensure that people are not sent back to places in which they will face persecution. Asylum is only becoming a greater concern in today’s world as more people are facing greater efforts to avoid violence and various human rights violations.

Proving Prosecution

For a person to be eligible for asylum, they must satisfy the definition of a refugee under the Immigration and Nationality Act (INA). The INA defines a refugee as any person who is outside of any country of their nationality or, when a person has no nationality, outside of any country in which a person habitually resided, and is unable or unwilling to avail themselves of their country’s protection because of persecution or a well-founded fear of persecution based on their nationality, religion, race, membership in a particular social group, or political opinion.

When it comes to an asylum claim based on gender identity, sexual orientation, and/or HIV status, the necessary elements will include:

a well-founded fear of persecution
incident based on past persecution or risk of persecution if returned to a country of origin
because of an applicant’s membership in a particular social group wherein
a persecutor is a government actor and/or a non-governmental actor that the government is unwilling or unable to control

An applicant will bear the burden of proof for establishing that they fall under this definition of refugee and must testify under oath about the truth of their application. The Board of Immigration Appeals (BIA) encourages and requires the introduction of corroborative testimonials and documentary evidence, where available.

While persecution does not have a specific definition under the INA, courts have held that threats to life or freedom based on nationality, religion, race, political opinion, or membership in a particular social group always constitute persecution. The UNHCR similarly endorsed a standard in its handbook for Procedures and Criteria for Determining Refugee Status under both the 1951 Convention and the 1967 Protocol relating to the Status of Refugees which states that the definition includes “the infliction of suffering or harm upon those who differ in a way regarded as offensive.”

Identifying persecution can be very fact-dependent and fact-specific, with five categories describing abuse that could rise to a level of persecution:

serious physical harm
coercive medical or psychological treatment
invidious prosecution or disproportionate punishment for a criminal offense
severe discrimination and economic persecution
severe criminal extortion or robbery

Serious Physical Harm Claims

Serious physical harm is perhaps the most common form of persecution and includes kidnapping, confinement, beatings, and torture. Rape, sexual assault, and other kinds of gender-based violence can also be considered persecution.

Threats of violence alone are not generally sufficient to establish past persecution unless the threats cause significant harm. Threats are only likely to establish future persecution if an applicant is able to demonstrate that a group making threats has both the will and ability to carry them out.

Violence against an applicant’s family members may also support their case for asylum. It is important for all people seeking asylum to be sure they are working with a Phoenix asylum lawyer.

Coercive Medical and Psychological Treatment Claims

The BIA also determined that electroshock treatments, forced institutionalization, and drug injections can constitute persecution, and coercive family planning under the Chinese government may also constitute persecution. A significant holding in this area came from the Ninth Circuit United States Court of Appeals in Pitcherskaia v. Immigration Nat. Serv, 118 F.3d 641 (9th Cir. 1997).

In this case, Alla Pitcherskaia was a 35-year-old native and citizen of Russia who was a lesbian and was arrested and imprisoned multiple times for protesting violence and discrimination against gays in Russia. The Russian militia was threatening her with forced institutionalization and also wanted to require her to attend therapy sessions.

After she was prescribed sedative medication, she refused. The Ninth Circuit ruled that it was not necessary for a persecutor to intend harm for unwanted medical or psychological treatment to translate to persecution, so long as a victim experiences the treatment as harmful.

Punishment for a Criminal Offense Claims

While asylum status is typically not granted for criminal prosecution because of violations of fairly administered laws, the prosecution can be considered when there is either severe punishment or pretextual prosecution. This will mean that asylum adjudicators focus on whether an existing punishment will be disproportionately severe or whether a law or punishment is deemed contrary to international human rights standards.

Asylum adjudicators may use American law as a comparison when determining whether particular laws are considered to be violations of human rights standards. The Supreme Court of United States case Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) is a major American law dictating sodomy offenses because sodomy laws of other countries could be in violation of the rights expressly recognized by the United States.

This is not to say all homosexual acts enjoy protection, however, because many countries still prohibit such acts in their criminal codes. The existence of such a law does not automatically demonstrate persecution, and people will need to retain legal counsel for help proving persecution.

Economic Persecution Claims

A form of discrimination recognized by courts is economic persecution, which involves a probability of deliberate imposition of substantial economic disadvantage based on some protected ground. In Marcos v. Gonzales, 410 F.3d 1112 (9th Cir. 2005), the Ninth Circuit United States Court of Appeals held that an immigration judge’s adverse credibility determination was not supported by substantial evidence, and although Marcos’s testimony did not compel a finding of past persecution, it established a well-founded fear of future persecution by the New People’s Army (NPA) if he were to return to the Philippines.

The Ninth Circuit remanded that case for further proceedings, accepting Marcos’s testimony as credible and as establishing a well-founded fear of future persecution, to determine his eligibility for asylum, withholding of removal, and relief under CAT. Economic persecution claims can be very challenging to prove, which makes the importance of having a skilled attorney on your side even more imperative.

Criminal Extortion or Robbery Claims

It can be difficult to prove persecution based on extortion or robbery, although threatening to disclose a person’s sexual orientation to a hostile community can constitute persecution when an applicant presents evidence making it reasonable to believe that extortion is at a minimum partially based on the fact that they are gay or imputed to be gay. Crime alone rarely reaches the level of persecution, but cases of robbery or assault motivated by protected characteristics can constitute persecution in some cases.

Establishing Your Well-Founded Fear

Proving you have a well-founded fear of return will involve you having to establish that you have both subjective and objective fears of returning to your country of origin. A reasonable person in an applicant’s circumstances must fear persecution.

In Al-Harbi v. I.N.S., 242 F.3d 882 (9th Cir. 2001), the United States Supreme Court wrote that the objective component requires credible, direct, and specific evidence of a well-founded fear, but a well-founded fear does not require proof that persecution is more likely than not and even a 10 percent chance of persecution can establish a well-founded fear.

Many asylum cases hinge on a victim’s own claims of past persecution, but some people may be able to use the persecution of similarly situated persons. Such claims are more common among LGBTQIA+ applicants.

Other complications to asylum cases may involve people who satisfy all of the necessary requirements but have criminal convictions or otherwise do not merit a favorable exercise of discretion. When you have any kind of conviction on your criminal record, it will be critical for you to work with a lawyer who knows how to defend your rights.

People also need to be certain they do not submit asylum applications that are deemed to be “frivolous,” because a frivolous finding will mean that an applicant becomes permanently ineligible for any immigration benefits. An asylum application is considered to be frivolous when any of its material elements are deliberately fabricated, so you must be certain that your application is as thorough and honest as possible so you do not have to deal with unintended consequences.

Call Us Today to Speak with a Phoenix Asylum Attorney

If you need help seeking asylum status in the Phoenix area, you are going to need to make sure that you are working with legal representation that will have your best interests in mind and know how to prove you qualify. Diamondback Legal understands all of the challenges involved in an asylum claim, and we also know how to help people get the asylum status they crave so they need not fear returning to their home country.

Our firm makes it a point to answer phone calls at all hours of the day, so you will never have to worry about getting somebody on the phone to talk to you about your case. Call (602) 584-8938 or contact us online today to receive a free consultation with our Phoenix asylum attorney.