Recently, I have been presenting a new argument for my female asylum clients from Afghanistan--that if they return to their country, they face a "pattern or practice" of persecution. Under the Taliban government, women in Afghanistan cannot pursue an education or work in many professions, they cannot travel abroad or safely leave the house without a male companion, the government will not protect them from forced marriage or domestic abuse. For these reasons, the argument goes, any woman who lives in Afghanistan will suffer persecution. Ergo and ipso facto (to use some fancy lawyer language), every Afghan woman in the U.S. should qualify for asylum.

A similar argument could be made about asylum seekers from many different countries. Such a claim is particularly helpful where the applicant did not personally face any threats or harm, and so might otherwise have a weak case for protection under United States immigration law.

In this post, we will discuss the meaning of "pattern or practice" in the asylum context, who might benefit from this argument, and how to present such a claim.

As always, it is best to start with the law, which can be found at 8 C.F.R. § 1208.13(b)(2)(iii)--

In evaluating whether the applicant has sustained the burden of proving that he or she has a well-founded fear of persecution [and thus qualifies for asylum], the asylum officer or immigration judge shall not require the applicant to provide evidence that there is a reasonable possibility he or she would be singled out individually for persecution if: (A) The applicant establishes that there is a pattern or practice in his or her country of nationality or, if stateless, in his or her country of last habitual residence, of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and (B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.

In other words, to receive asylum, an applicant does not need to demonstrate that she faces a specific, individualized threat of harm in her country, if she demonstrates that there is a "pattern or practice" of persecuting members of a certain group, and also demonstrates that she is a member of that group. Probably the prototypical example is Jews in Nazi Germany. Because the Nazis tried to murder all Jewish people, any Jew--regardless of whether he faced a specific threat--could qualify for asylum from Nazi Germany. Other, modern day examples, might include Uyghurs from China, Baha'i people from Iran, Rohingyas from Myanmar, and LGBT individuals from most countries on earth.

To successfully present a pattern or practice of persecution ("POPOP") claim, you need to demonstrate that you are a member of a group that faces persecution on account of your race, religion, nationality, political opinion or particular social group. So if you were a religious minority, you would want to present evidence of membership in that religion (a letter from your temple or from a religious leader, photos at religious events). If you belong to an ethnic minority, you need evidence of your ethnicity (proof that you speak the ethnic group's language, ID documents listing your ethnicity). If you belong to a particular social group--such as "gay men" or "women"--you would need to demonstrate that your PSG is cognizable (i.e., valid under the asylum law), which can be a complicated analysis. Also, you would need to show that you are a member of that group (evidence would vary depending on the specific PSG).

Next, you have to demonstrate that your group faces a pattern or practice of persecution in your country. This is different from a "normal" asylum case, where you need to show that the government or some non-state actor wants to harm you (specifically). In a POPOP case, you need to show that the persecutor seeks to harm everyone in your group. To satisfy this requirement, you need country condition evidence about how your group is persecuted. This might consist of human rights reports, news articles, and expert witness letters. I wrote here about the types of evidence that are helpful in an asylum case.

To succeed in a POPOP case, the harm to your group would normally be severe and pervasive throughout the home country. For example, if the government persecutes some members of your ethnic group (say, those who are politically active) and not others, you would have a difficult time demonstrating a pattern and practice of persecution based on membership in that ethnic group. On the other hand, if all members of the ethnic group face harm, you would likely have a strong POPOP case.

For most asylum applicants, the POPOP argument is probably not all that helpful, since most applicants have faced prior threats or harm and will base their claim on those problems. But for those who belong to a persecuted group and have managed to avoid being harmed or threatened themselves, a "pattern or practice" claim can be a powerful tool to increase the likelihood that your asylum application will be approved.

Originally posted on the Asylumist: