U.S. Asylum Law as a Path to Religious Persecution

Abstract

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.”

Such a response misses the mark however — at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion” — in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from persecution on account of one’s “religion” must include protection of one’s religious freedom not to believe in deities of any kind. To hold otherwise would be to inhibit the very religious liberty asylum law is intended to protect.

Yet under current U.S. law, a non-believer’s claim for asylum may well be denied on the ground that non-belief is not enough for religious asylum. This may serve to dissuade a would-be asylee from even attempting to apply for religious asylum as a non-believer — even when she would undoubtedly be subject to religious persecution if forced to return to her native country. She may thus feel the need to feign conversion to a traditional, mainstream religion. Such a result is unacceptable in a nation founded upon religious liberty.

This Note argues that if a non-believer is denied religious asylum in the United States, she can succeed on a claim that the law as applied to her violates both the Free Exercise and the Establishment Clauses of the First Amendment.

Keywords: Religion, Immigration, Atheism, International Human Rights Law, Asylum Law, Religion Clauses, First Amendment Law (USA), Atheist, Persecution on Account of Religion, Non-Believer, Religious Apostasy, Apostasy, Apostate, Citizenship, Immigration Status & Nationality, Immigration Law