Proving Persecution: The Burdens of Establishing a Nexus in Religious Asylum Claims and the Dangers of New Reforms

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INTRODUCTION

Upon entering the United States, asylum seekers often have a difficult and completely unknown path before them. They may know little or no English and have no concept of the detailed and complex immigration system they must navigate in order to remain in the United States. Take, for example, a woman from China, who also happens to be a Christian. She has fled to the United States from her home country because she has been tortured and beaten for being a Christian in a country that does not approve of Christianity. Her first step is to apply for asylum--an arduous task given her lack of English and the complexity of the system. (1) Eventually, she finds someone to assist her in filing the application, (2) but she still cannot read what it says. Once the application is filed, she goes before an asylum officer who finds that he cannot make a decision on the claim. The officer does not deny her application, but rather refers her to an immigration judge for a full hearing on her case. Once in the immigration court system, she attends a master calendar hearing at which the date for her full merits hearing is set. The date set is almost a full year away. (3) By this time, she has also found an attorney to represent her, but can barely afford to pay for the representation. (4) At the merits hearing, the immigration judge ("IJ") listens to her testimony and the same day issues an oral decision denying her claim. The IJ states that she cannot prove she was persecuted because of her Christianity and is thus not eligible for asylum. She files an appeal with the Board of Immigration Appeals ("BIA"), which denies her claim without an opinion, simply adopting the IJ's decision. (5) At this point, she has a working knowledge of English, has found a place to live and work, and has friends. She has also been ordered deported.

The asylum system in the United States is greatly flawed. It is one of the most complicated and difficult asylum systems in the world, (6) due in part to the intricate and complicated standards an asylum seeker must fulfill to remain in the United States. (7) This is a sad fact, given that the United States is still considered the land of freedom and opportunity by the persecuted in the world who arrive seeking safety and protection. (8) The narrow lines drawn by decision makers in the United States hinder, rather than help, asylum seekers in their quest for safety. Furthermore, the United States has veered significantly from the original purpose and obligation of asylum, which was to protect those who were unable or unwilling to remain in their own countries because of a fear of persecution. (9) This purpose of asylum is embodied in the internationally accepted definition of "refugee," adopted by the United Nations in 1951 to better protect those who cannot avail themselves of protection in their own countries. (10)

Those fleeing religious persecution are particularly vulnerable in the United States asylum system. There is a generally accepted belief that freedom of religion is a universal concept to which most nations adhere. (11) Unfortunately, this is not the case. Many nations claim to allow free religious practice (12) but, in reality, egregious violations of this right are occurring in numerous countries. (13) The United States is one of the nations proclaiming to protect religious freedom, as it is one of the basic freedoms upon which the nation was founded. (14) Domestic courts often fall into the trap, however, of believing that another nation's proclaimed religious freedom means that it does not persecute on religious grounds. The decision maker who so assumes often refuses to find a nexus between the asylum seeker's persecution and her religion. If a foreign state claims to accept religious freedom but regulates it, United States courts will often find that the asylum seeker suffered prosecution for breaking a law and not persecution for religious beliefs. (15)

This Note contends that the United States has become one of the most difficult nations in which to win asylum from religious persecution, and thus the original intention of asylum has become skewed. …