The New Nexus

Abstract

United States asylum law provides protection to individuals fleeing their home countries due to “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” While significant scholarly and judicial attention has been paid to the interpretations of the five grounds — in particular to the “political opinion” and “particular social group” categories as they pertain to gender-based claims and claims involving private harms — relatively little debate has focused on the proper formulation of the “on account of,” or “nexus,” requirement. Yet, scant guidance exists (whether by statute, regulation, or case law) as to the standards that should apply when determining whether causation has been established. This Article argues that the lack of guidance has led to an improper focus on the intent or motivation of the persecutor (as opposed to the status of the victim), as well as inconsistent interpretation of the requirement, in large part to the detriment of applicants seeking protection from gender-based persecution or other private harms.

The Article further argues that a new nexus formulation in refugee law is sorely needed, and that the standard that should apply in most cases is the “but-for” standard commonly used in tort law and sometimes used in United States anti-discrimination law.

In making the argument that but-for causation should be applied in refugee law, the Article examines the current analysis of the nexus requirement in several different contexts: forced sterilization, female genital mutilation, domestic violence, trafficking, forced marriage, religion, homosexuality, gangs, and membership in a family. The Article concludes that application of the but-for standard would lead to more consistent and fair results in the adjudication of refugee claims. It further concludes that shifting the focus from the intent of the persecutor to the status of the victim more effectively carries out the goal of refugee law: to provide surrogate protection to individuals who face persecution because of a characteristic they cannot or should not be required to change and who are unable to receive protection from their home countries. 

Keywords: refugee law, asylum law, nexus, torts, but-for causation, causation, gender, anti-discrimination law