Asylum Law by Jessica Ramirez: Primary Sources

Well-Founded Fear of Persecution Standard

• I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (U.S. 1987): The Court held that an applicant for asylum in the United States only needs to demonstrate a "well-founded fear" of persecution, which can be met even if the applicant does not show that it is more likely than not he will be persecuted if returned to his home country.
• Matter of Mogharrabi, 9 I. & N. Dec. 439 (BIA 1987): The Board of Immigration Appeal applied a reasonable person standard where the applicant for asylum will be considered to have established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution.

Forms of Persecution

• Kovac v. I.N.S., 407 F.2d 102 (9th Cir. 1969): The court concluded that harms do not need to be physical in order to constitute persecution.  Specifically, the court held that a probability of deliberate imposition of substantial economic disadvantage upon an alien for reasons of race, religion, or political opinion was sufficient to confer upon the Attorney General the discretion to withhold deportation.
• Pitcherskaia v. I.N.S., 118 F.3d 641 (9th Cir. 1997): The court held that the subjective punitive or malignant intent of the actor is not required for harm to constitute persecution
• Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989): The Board established that eligibility for asylum may be based on past persecution alone, in the absence of a well-founded fear of future harm.  The Board held that the favorable exercise of discretion is warranted for humanitarian reasons even if there is little likelihood of future persecution where a person has suffered under atrocious forms of persecution.
• Korablina v. I.N.S., 158 F.3d 1038 (9th Cir. 1998): The court held that a single isolated incident may not rise to the level of persecution, but cumulative, specific instances of violence, discrimination and harassment toward an individual and their family members not only by the government, but also by a group the government declines to control may constitute persecution.

The most important Code sections pertaining to asylum law are Title 8, U.S.C. Aliens and Nationality, §§ 1101-1775.  The primary statutory authority for immigration law, the Immigration and Nationality Act is codified within these sections.

• IMMIGRATION AND NATIONALITY ACT §208 - ASYLUM: The Act governs primarily immigration to and citizenship in the United States. It has been in effect since December 24, 1952. Before this Act, a variety of statutes governed immigration law but were not organized within one body of text.
• 8 USC § 1158 - ASYLUM: this section amends section 208 of the Immigration and Nationality Act to revise procedures for admission of refugees.  This Code section covers: (1) the applicant's authority to apply for asylum, (2) the conditions for granting asylum, and (3) the asylum status and procedure. 

Administrative Law is the body of law that governs the administration and regulation of government agencies -- both federal and state. Created by Congress (or the state legislature) it encompasses the procedures under which these agencies operate as well as external constraints upon them. Administrative law is considered a branch of public law and is often referred to as regulatory law.

• 8 CFR § § 208, 1208 -- PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL: the asylum regulations discuss application procedures, eligibility, legal standards, and define key terms.  These regulations are administered by the INS and the EOIR and are duplicated in part 1208 of the Code.

Source: Jake Brower, Atty at Law