Re-Envisioning the Reach of Persecution: Recognizing Refugee Status for the Family Bystander Witness

28 Pages Posted: 15 Sep 2012 Last revised: 5 May 2013

See all articles by Ilene Durst

Ilene Durst

Thomas Jefferson School of Law

Date Written: September 15, 2012


Asylum jurisprudence has been reluctant to recognize the depth of the trauma an adult experiences when a loved one is persecuted by the state, or by those the state cannot or will not control. The family member who witnesses such persecution, or has a well-founded fear of witnessing such persecution, may experience suffering so severe that she herself is persecuted by the state's conduct. This article proposes that asylum should be granted to "bystander witnesses," those whose fear of persecution rests upon witnessing an immediate family member's direct persecution, and those who reasonably apprehend that their child, parent, or spouse will be persecuted if the family is compelled to return to the persecuting country.

Domestic asylum jurisprudence generally limits the bystander witness's eligibility for relief by requiring that the witness be a child during the relevant events, or experience direct threats or physical injury, unless the harm inflicted upon the family member is so egregious as to harm the family unit. The courts' analysis of whether the harm, or potential harm, to one family member is so egregious as to persecute other close family members has yielded the most troubling and inconsistent results, which conflict with other asylum law principles, domestic and international refugee policy, legal interpretations of analogous events under tort law, and established psychological tenets.

This article first explores the law of political asylum and its inconsistent treatment of claims concerning witnesses to the persecution of an immediate family member, and explains how the rejection of the family bystander witness claim contradicts prior precedent and policy. Second, the article examines tort law's recognition of the extreme suffering experienced by witnessing injury to an immediate family member, and why such reasoning should apply equally to claims of persecution. Third, the article demonstrates that rejecting the family witness's suffering as not severe enough to constitute persecution disregards established psychology addressing this aspect of the refugee experience. In conclusion, the article urges that asylum decision-makers recognize the legal and psychological effects on such witnesses to produce better reasoned and more just adjudications in this area, consistent with the purposes of political asylum.

Keywords: refugee, immigration, political asylum, persecution, family harm, tort, bystander witness, infliction of emotional distress, psychology of persecution

JEL Classification: K13, K19, K33

Suggested Citation

Durst, Ilene, Re-Envisioning the Reach of Persecution: Recognizing Refugee Status for the Family Bystander Witness (September 15, 2012). Whittier Law Review, Vol. 34, p. 1, 2012; Thomas Jefferson School of Law Research Paper No. 2146889. Available at SSRN:

Ilene Durst (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4229 (Phone)

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