Nexus Redux

Abstract

Pursuant to its obligations under international law, the United States government has agreed to provide protection to individuals who fear persecution in their home countries for reasons of race, religion, nationality, membership in a particular social group, or political opinion. This protection in the U.S. takes the form of asylum, and the asylum statute states that the U.S. will protect individuals from persecution that occurred or will occur “on account of” one of those grounds. The Supreme Court has stated that in order to meet the “on account of” or “nexus” requirement, an asylum applicant must provide some evidence, whether direct or circumstantial, of persecutor motive. Congress later declared that a protected ground must be “one central reason” for the persecution. There is, however, no statutory, regulatory, or judicial authority setting forth the proper analytical framework for determining nexus in asylum cases.

In a previous article, I argued that in most cases, the “but-for” causation model from tort law would suffice as a method of establishing causation in asylum cases. In other words, if an applicant can show that but for her protected characteristic, the persecution would not have occurred or would not occur in the future, nexus is established. I acknowledged, however, that this model may not provide the proper framework for all cases, particularly cases involving mixed or multiple motives for the persecution.

This article sets forth a burden-shifting framework for such cases that is inspired by the frameworks for assessing causation in U.S. anti-discrimination law and, to a lesser extent, tort law. The article draws from the literature and jurisprudence surrounding intent in U.S. asylum law and anti-discrimination law, as well as from mixed motives jurisprudence.

The framework proposed in this article, used in conjunction with the but-for test proposed in the previous article, provides a rule for determining causation in asylum cases that would lead to more consistent and fair results and would bring the U.S. more in line with its international obligations.

Keywords: refugee law, asylum, causation, nexus, persecution, anti-discrimination law, torts, burden-shifting, motives, mixed-motives