In most cases, to obtain asylum, an applicant must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group. But there are a couple of exceptions: “Humanitarian Asylum” and “Other Serious Harm.”
Humanitarian asylum allows an applicant to receive asylum if she “demonstrate[s] compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” 8 C.F.R. § 208.13(b)(iii)(A). In other words, we don’t send a person back to a country where she faced severe past persecution based on a protected ground, even if it would be safe for her to return to that country today. I had a case a few years ago that illustrates this type of relief–My client was a 10-year-old Tutsi girl in Rwanda in 1994. When the genocide began, she went with her mother and two siblings to hide in a church. The Interhamwe militia arrived and separated the people in the church into two groups: one group that would live and one that would die. The little girl fainted (mercifully) before she could see her mother and one sibling murdered. Years later, she was in the U.S. seeking asylum. For some reason, the Asylum Office referred her case to the Immigration Court and she hired me. We were able to get humanitarian asylum based on the severity of her past persecution. In a sense (the legal sense), this was an easy case. Humanitarian asylum is well-known and relatively common.
Kids, eating your vegetables is not "other serious harm."
A less well known form of relief is asylum based on other serious harm. To obtain asylum on this basis, an applicant who has suffered past persecution based on a protected ground must “establish that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” 8 C.F.R. § 208.13(b)(iii)(B). Put another way, where an asylum applicant suffered past persecution based on a protected ground, but he no longer has a well-founded fear of future persecution based on that ground, he can still obtain asylum if he demonstrates that he could suffer “other serious harm” in his country. “Other serious harm” does not have to be based on a protected ground, and it does not have to be related to the original persecution.
I had a case recently where this would have been an appropriate form of relief, had I known about it (why is it that I always learn these types of things after the fact?). My case involved a guard who worked for the Special Court for Sierra Leone–the court that tried war criminals from the time of the civil war. During the civil war, my client was persecuted based on his political party affiliation. In 1991, rebels killed his parents in order to retaliate against him for his political activity. My client was working for the Special Court more recently, and he was assigned to protect an important witness. Former rebels who did not want the witness to testify asked my client to murder the witness in exchange for money. He refused, and reported the incident to his superiors. After his refusal, the former rebels repeatedly threatened to kill him, they broke into his house and left a warning note, and finally they invaded his house to kill him. He ran from the house and fled the country.
My client satisfied the first prong for “other serious harm” relief–He was persecuted on account of his political opinion during the time of the civil war. He also satisfied the second prong–He was facing harm or death because he failed to comply with the demands of the former rebels to murder the witness. Unfortunately, at the time, I did not know about relief based on “other serious harm.”
Luckily for my client (and me), the DHS attorney felt that my client qualified for humanitarian asylum based on the severity of the past persecution, and so asylum was granted. However, the more appropriate form of relief was asylum based on “other serious harm.” I learned about this avenue of relief at the First Annual USCIS Ombudsman’s Conference, which took place about a week after my case. Aside from the bad timing, it was a great conference. Anyway, now that I know, I thought I would share some information about “other serious harm,” as it might be helpful to others in their cases.
Originally posted on the Asylumist: www.Asylumist.com.
Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants. Name