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Protesting In The US Can Establish A Well-Founded Fear Of Future Persecution

by David L. Cleveland

Section 208(b)(1) of the Immigration and Nationality Act [8 U.S.C. section 1158(b)(1)] provides that the Attorney General may grant asylum to an alien, if the alien is a "refugee" within the meaning of section 101(a)(42)(A). That section provides that an alien is a "refugee" if the alien has a "well-founded fear of persecution."

This article will present arguments supporting the proposition that protesting in the United States can establish a "well-founded fear of persecution."

The famous Mr. Mogharrabi was granted asylum for his activities inside the United States.

In Matter of Mogharrabi, 19 I&N Dec. 439, 448 (BIA 1987), Mr. Mogharrabi, a native of Iran, entered the United States in 1978. In 1981, he walked into the Iranian Interests Section at the Algerian Embassy in the United States, and entered into an argument about whether a photocopy of his passport was sufficient to document his student status. Mogharrabi told the Embassy employee that "he and his kind had robbed Iran… and that they were nothing more than religious fascists stuffing their pockets with the nation's wealth." The employee drew a gun, and Mogharrabi ran out. There "were cameras all around the room recording these events." Mogharrabi also testified that "he had participated in anti-Khomeini demonstrations in the United States." Id. at 448.

Reversing the IJ, the Board granted asylum, stating that Mogharrabi had "clearly expressed his political views at the Iranian Interests Section and his opinions were extremely derogatory to the regime in power. The Service does not dispute that opponents of the Ayatollah Khomeini are often persecuted for their opposition." Id. at 448.

In re Ngum (BIA 1999) holds that political activity in the United States is relevant.

In the case In re Dawda NGUM, A#27-709-543 (BIA December 13, 1999), respondent sought withholding of removal from The Gambia. Respondent testified that he had helped organize a forum in a hotel in Atlanta, and protested against former President Jawara. The IJ denied the claim, citing Matter of Nghiem 11 I&N Dec. 541 (BIA 1966), for the proposition that political activities in the United States are not important. At page 9 of its opinion, however, the Board stated:

"We should caution, though that our decision [in Nghiem] was made prior to the accession of the United States to the United Nations Protocol Relating to the Status of Refugee…These mandatory provisions do not exclude from consideration those political activities engaged in after entry into the United States that jeopardize an alien's life or freedom in his native country. Cf. Makonnen v. INS, 44 F.3d 1378, 1384 (8th Cir. 1995) (Congress in defining "refugee" under the Act put no limit on what evidence might constitute a well-founded fear of persecution, including evidence of the alien's activities in the United States)."
In 1968, the United States acceded to the United Nations Protocol Relating to the Status of Refugees. Twelve years later, Congress enacted the Refugee Act of 1980, Pub. L. 96-212, to "bring United States refugee law into conformance with the country's obligations under the Protocol." The Refugee Act of 1980 "established the basic framework for current refugee law." In re Q-T-M-T-, 21 I&N Dec. 639, 645 (BIA En Banc 1996). The Act of 1980 sets forth new definitions and new criteria. Hence, cases decided before 1980, such as Nghiem, are of little importance.

Form I-589, Application for Asylum and for Withholding of Removal, asks if the applicant "continues" to participate in any political groups.

Question 3, part A, at page 6 of Form I-589, asks: "have you…ever belonged to…any organizations or groups in your home country, such as… a political party…[or] human rights group…?"

Part B of Question 3 asks: "Do you or your family members continue to participate in any way in these organizations or groups?… If Yes, describe… your..current level of participation…"

Only an alien physically present in the United States may apply for asylum. Section 208(a)(1). Part B asks the alien about his "current" activities: i.e., his activities now in the United States.

Therefore, the authors of Form I-589 are specifically interested in activities in the United States, such as protesting.

Asylum Officers are taught that political activities in the United States can be important.

Asylum Officers are taught that an "applicant's involvement in political organizing or other activities in the U.S. that are critical of applicant's government" is an important factor.
See "Asylum Officer Basic Training Course" at pages 10-11 [December 5, 2002].

The UNHCR Handbook states that expressing political views outside of the home country can make one a refugee.

An important guide in interpreting the Refugee Act of 1980 is the Handbook written by the
The Office of United Nations High Commissioner for Refugees [UNHCR]. In 1979, the UNHCR published a Handbook as a resource for governments, entitled:

"Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees."

Paragraph 96 of the Handbook states:
"A person may become a a result of his own actions, such as …expressing his political views in his country of residence…Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities."
This Handbook, which contains 223 paragraphs, provides "significant guidance" to adjudicators. INS v. Cardoza-Fonseca, 480 U.S. 421, 439, n. 22(1987). The Handbook has been deemed "a useful tool" by the Board in Matter of Acosta, 19 I&N Dec. 211, 221(1985) and was cited numerous times in In re S-M-J-, 21 I&N Dec. 722, 724, 725, and 729 (BIA 1997).

Paragraph 96 of the Handbook is in accord with the Mogharraabi and Ngum decisions: expressing political views here in the United States is highly relevant.

The Eighth Circuit has ruled that activities inside the United States can be important.

In the case Makonnen v. INS, 44 F.3d 1378, 1384 (8th Cir. 1995), the court ruled in accord with the above authorities. Ms. Makonnen, from Ethiopia, sought asylum, basing her claim in part on her activities since her arrival in the United States. She attended monthly political meetings, and believed her government was aware of this activity.

The BIA denied her claim, stating that, "although we do not categorically hold that entitlement to asylum relief can not be established by an individual based upon actions taken following entry into this country, we find that there must be specific evidence that a government would target an individual outside of its borders for persecution." Id. at 1384.

The Eighth Circuit reversed and remanded the case, stating: "We hold that the Board's treatment of this evidence was unduly restrictive and reflected an incorrect understanding of the law. Congress, in defining "refugee," put no limitation on what might constitute evidence of a well-founded fear of persecution… We hold that the BIA was incorrect as a matter of law in …. requiring specific evidence that the Ethiopian government would target an individual outside its borders for persecution." Id . at 1384.

Antiregime activities abroad were deemed relevant by the En Banc Board in In re G-A- (2002) .

"Antiregime activities abroad" were deemed relevant by the Board in In re G-A-, 23 I&N Dec. 366 (BIA En Banc 2002), a case which involved a Christian from Iran who was granted relief under the Convention Against Torture. The Board credited testimony from applicant, that if he is returned to Iran, upon arrival at the airport "he would come to the officials' attention because of his many years in the United States." Then, "his attempt to apply for asylum in the United States would be discovered." Id . at 369.

Further, the "State Department confirms that Iranian citizens returning from abroad are 'subject to search and extensive questioning by government authorities for evidence of antiregime activities abroad." Id . at 369.

The Refugee Review Tribunal in Australia has ruled that political activities in Australia can be important.

In a decision dated May 14, 2002, the Refugee Review Tribunal of Australia ruled that an applicant from Burma who protested in Australia had a well-founded fear of persecution. The Tribunal found that those who protest "will have come to the attention of the Burmese authorities in Burma," and would face a "real chance" of imprisonment upon return to Burma. RRT Reference: N98/23879. [Http://]


Numerous courts have held that political activity here in the United States is relevant in an asylum case. Form I-589, the application for asylum itself, asks about current political activity. Protesting in the United States can establish a well-founded fear of persecution.

About The Author

David L. Cleveland a staff attorney at Catholic Charities of Washington, DC, is a graduate of the University of Rochester and Case Western Reserve University School of Law. He is the Chair of the AILA Asylum Committee.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.