I suppose it was inevitable that some of the Trump supporters charged in the attack on our Capitol would seek asylum overseas. These people are already pre-disposed to victimhood, and so it makes sense that some would see their prosecution--for harming law enforcement officers, threatening government workers, disrupting an election, damaging federal property, and trespassing--as a form of persecution.

Also, there are plenty of governments around the world that want to harm our country by sowing division and encouraging further violence. And so it's hardly surprising that certain nations would be only too happy to offer asylum to the Capitol rioters, as a way to stick it to the United States.

We now have our first (known) example of a Capitol rioter seeking asylum abroad. Evan Neumann is wanted in the U.S. on charges of violent entry and disorderly conduct on the Capitol grounds, and for assaulting, resisting and obstructing law enforcement during civil disorder. He has fled to Belarus and applied for asylum. It would be easy to mock Mr. Neumann and the "Republic" of Belarus, but here, I want to discuss whether Mr. Neumann might qualify for asylum under international law.

First, some background. And--sorry--some mocking. It is well deserved.

Let's start with Evan Neumann. From what I can glean, his father was a prominent hotelier, who grew up in Nazi Germany where he was an "enthusiastic leader in the Hitler Youth" (why the family mentions this tidbit in the father's obituary, I do not know). The younger Neumann was apparently successful in his own right, owning a handbag manufacturing business in California.

What brought Evan Neumann to the Capitol on January 6, we do not know, but he had apparently participated in the Ukrainian Orange Revolution in 2004 (which successfully reversed an election that actually had been rigged). At the Capitol, he wore a MAGA cap and a scarf from the Orange Revolution. He is allegedly pictured in photos and videos wearing a gas mask, taunting police, punching a police officer, and pushing a metal barricade at officers.

After the legal consequences of his actions started to become clear, Mr. Neumann sold his house (for a cool $1.3 million) and left for Europe. He spent a few months in Ukraine, but then felt that security agents were monitoring him, so he fled through the wildness--supposedly dodging wild boars and snakes--and reached Belarus, where he requested asylum.

In Belarus, Mr. Neumann has appeared on television, where he was characterized as a "simple American, whose stores were burned down by members of the Black Lives Matter movement, who was seeking justice, asking inconvenient questions, but lost almost everything and is being persecuted by the U.S. government." The TV reporter also described the United States--sarcastically--as a "country of fairytale freedoms and opportunities." Mr. Neumann himself denies that he hit a police officer and calls the charges against him "political persecution."

And what of the country where Mr. Neumann has sought protection, Belarus? This is a country run by a dictator, who has been "president" since 1994. The regime in Belarus tortures and murders political opponents (including in other countries), diverted an international flight to arrest a journalist, abuses refugees, and has lately threatened to cut off natural gas supplies to Western Europe, which had the temerity to complain about the rogue nation's bad conduct. In short, there's a lot not to like about the current government of Belarus.

So what about Mr. Neumann's asylum application? There are a number of elements to an asylum claim. One is that the feared harm must be "on account of" a protected ground (race, religion, nationality, political opinion or particular social group). In Mr. Neumann's case, he fears political persecution, but his claim is based on what we in the trade call a "mixed motive": The charges against him are for crimes, such as assaulting a police officer, but he argues that those charges are pretextual. In other words, he says that he was criminally charged because of his political activities or opinions.

How can you tell whether a criminal charge is pretextual? Where the criminal law is fairly administered and the punishment is not disproportionately severe, a criminal prosecution is not considered persecution. In Mr. Neumann's case, I think he will have a difficult time arguing that his prosecution is pretextual. One pretty obvious piece of evidence in this regard is that many thousands of protestors came to the Capitol on January 6, expressed their political opinions, and were not charged with crimes. The reason for this is also obvious: They did not commit any crimes. But Mr. Neumann is different--he engaged in conduct that seems blatantly criminal. You can see that in the charging document, which includes photos, cell phone records, and witness statements.

Another element of an asylum claim is whether the feared harm is severe enough to constitute "persecution," a term which is notoriously hard to define. In most--but not all--cases, persecution involves physical harm. A term of incarceration would usually not be considered persecution unless it involved dangerous prison conditions or perhaps if it was particularly lengthy. In Mr. Neumann's case, it seems unlikely that he would be subject to physical harm at the hands of the U.S. government. It also seems doubtful that he would face severe or life-threatening prison conditions in a U.S. jail. I suppose he could face a disproportionately lengthy sentence, but this also seems unlikely, given that the longest sentence yet imposed on a Capitol rioter was 41 months, which hardly seems excessively for assaulting a police officer.

Finally, to receive asylum, an applicant must demonstrate a subjective fear of harm and show that that fear is objectively reasonable. In Mr. Neumann's case, he appears genuinely fearful of harm (or at least incarceration) in the U.S. He sold his house and abandoned his life because of that fear. But is his fear objectively reasonable? It appears not. If Mr. Neumann returns to the U.S., he faces a legitimate criminal prosecution, and if convicted, he faces a punishment commensurate with his crimes. So while Mr. Neumann fears return to the United States, his concerns are the same as any criminal wanted for his crimes. And since asylum law is not designed to protect criminals fleeing prosecution, I do not see how Mr. Neumann has a legitimate asylum claim.

All that said, I expect that Belarus will offer Mr. Neumann asylum. Not because it is the right thing to do under international law, but instead, to use Mr. Neumann as a propaganda pawn against our country. While such motivation has always been an element of asylum, it is ironic that Mr. Neumann--a person who purports to be a patriot--has proved so willing to allow a hostile power to use him in its effort to slander and undermine the United States.

Originally posted on the Asylumist: www.Asylumist.com