62 Pages Posted: 9 Oct 2011 Last revised: 10 Sep 2019
Date Written: October 8, 2011
Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution - conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes a definition of persecution that is grounded in an examination of persecution’s true underpinnings. As such, the proposed definition will aid courts in their review of asylum claims and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.
Keywords: asylum, refugee, persecution, persecute, persecuted, torture, definition, define, defining, meaning of persecution, withholding of removal, immigration, Immigration and Nationality Act
JEL Classification: K00, K19, K33, K39, K41, K49
Suggested Citation: Suggested Citation