The dire need for protection from threatened and actual persecution continues to be one of the most pervasive and essential human needs worldwide. The United States is no stranger to treaties and statutes that constitute our commitment to extend such protection when an individual’s home country cannot or will not provide it. [1]

Unfortunately, neither the history of U.S. immigration and refugee law, nor the specific track record created by individual asylum cases conducted before particular immigration judges and appealed to the Board of Immigration Appeals, is the most commendable or consistent when it comes to compliance with asylum principles. Instead, the principle of asylum as a humanitarian protection against persecution is too often honored in the breach.

Having to resort to appeals via petitions for review in Article III courts in the federal circuit court system often is the only way that genuine asylum seekers can vindicate their claims and obtain the protection we have promised them.

Which is why it is at best, curious, and at worst, appalling, that anyone who represents asylum seekers or claims to have strong ties to the immigration law community would choose to ignore the reality of persecution in its many forms, and resort to a linear, narrow concept of persecution to make a political point regarding the potential prosecution of Edward Snowden in the United States should he be returned to U.S. jurisdiction.

Looking to federal circuit court decisions, it becomes immediately clear that, indeed, the line between persecution and prosecution is neither clear nor universally agreed upon by those examining and adjudicating asylum claims. Furthermore, the historical record reflects that persecutors are likely to take advantage of holding official governmental positions to cloak their actions, just as some government prosecutors may deliberately or negligently engage in self-serving or persecutory conduct that falls outside the laws they seek to enforce.

As a former immigration appeals judge who examined thousands of appeals from both grants and denials of asylum in the United States, I can attest that there is no clear cut line between persecution and prosecution. For asylum purposes, detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, torture, or conduct that threatens any of these harms are included within the contours of persecution. Ahmed v. Gonzales, 467 F.3d 669 (7th Cir. 2006). Indeed, the statutory asylum definition, adopted from international treaty language, specifically refers to certain types of harm and mistreatment that a government cannot or will not control and it is the government in the asylum seeker’s country that many times is the bad actor and inflicts the persecution.

Our law books are replete with decisions of United States federal courts illustrating this undeniable reality, as the following cases compiled by my fellow blogger, attorney Matthew Kolken, illustrate.

For example, fear of prosecution under lawfully enacted but excessively harsh or brutally administered laws may entitle an alien to asylum or withholding of removal if the asylum seeker shows that the prosecution is based on a statutorily-protected ground and that punishment under that law is sufficiently extreme to constitute persecution. Scheerer v. U.S. Atty. Gen., 445 F.3d 1311 (11th Cir. 2006).

In another case, the Third Circuit Court of Appeals found that punishment which an asylum seeker would likely face upon his return to China, resulting from China's prosecution of him for violating security laws by remaining in United States without authorization and failing to report suspicions that other Chinese citizens in a delegation he led would remain in United States, was sufficiently severe to constitute “persecution,” within the meaning of statutes governing asylum and withholding of deportation. Chang v. I.N.S., 119 F.3d 1055 (3d Cir. 1997). The court’s conclusion was based on evidence that violations of exit laws alone could result in years of punishment and that those expressing political opposition to the government faced imprisonment and torture.

Furthermore, prosecution may constitute persecution subject to the production of evidence that criminal charges were improperly motivated and/or the individual would receive an unfair trial. Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004). Accordingly, as the Fourth Circuit Court of Appeals found, where the motive underlying purported criminal prosecution is illegitimate, such prosecution is more aptly called “persecution,” for purposes of the asylum claim. Menghesha v. Gonzales, 450 F.3d 142 (4th Cir. 2006).

In other, unreported cases in the Fifth and Sixth Circuit Courts of Appeal respectively, evidence of the government’s intent to arrest and prosecute an asylum seeker, and evidence that an asylum seeker may be tortured if he is returned to face criminal prosecution, was found to warrant grants of protection. Qisheng Zhang v. Holder, 443 F. App'x 163 (6th Cir. 2011); Adam v. Gonzales, 156 F. App'x 635 (5th Cir. 2005).

While still on the Second Circuit Court of Appeals, Justice Sonia Sotomayor ruled that:

Retaliation for opposition to government corruption may, in appropriate circumstances, constitute persecution on account of political opinion within meaning of the asylum statute. . . no less than opposition to other government practices or policies, [it] may have a political dimension when [the opposition] transcends mere self-protection and represents a challenge to the legitimacy or authority of the ruling regime.

See Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (citing Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004). See also Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir.2004) (holding that a journalist raised "indisputably political issues" when she accused a local political leader of "organizing a cadre of `terrorism, repression, and extortion,' of `misappropriation of public money,' . . . and of making his political office `an office of corruption.'"). In other words, a challenge to government authority that triggers retaliation, even under established government laws, may amount to persecution.

What all these cases, and many others, illustrate, is that there is no definitive or fixed line differentiating prosecution from persecution, particularly in politically charged circumstances. Snide remarks (made by a colleague of mine) about first-year law students aside, it does a disservice to the development and practice of asylum law to suggest that the determination of what may constitute unacceptable harm done to human beings by any government is so clear-cut or easily made, or that fears of persecution may be so easily dismissed. Shame on any immigration attorney whose desire to make a political point would belie the complexity and variability of these necessarily case-by-case asylum determinations.

[1] See Immigration and Nationality Act, §§ 208(a), 243(h), 8 U.S.C. §§ 1158(a), 1253(h). See also 8 C.F.R. § 208.13(a).