Adjudicating the Religious Beliefs of an Asylum Seekers: When the ‘Well-Founded Fear’ Standard Leads Courts Astray

20 Pages Posted: 11 Dec 2019

See all articles by Maritza Black

Maritza Black

Concordia University School of Law

Date Written: November 24, 2019

Abstract

This note discusses the standard that should be applied for asylum seekers who are fleeing religious persecution in their home country. In order to gain asylum in the United States, applicants must meet the standard of a refugee, meaning that, among other things, they must demonstrate that they have a “well-founded fear” of returning to their country of origin.

“Well-founded fear” has been defined as when the applicant has a “subjectively genuine and an objectively reasonable fear”. The subjective fear is established when an applicant is found to have testified credibly concerning their fear of return. The objective standard is more difficult to define but has been likened to the “reasonable person standard”, when “a reasonable person in his circumstances would fear persecution” upon return to the native country. This standard is inconsistent with the way in which other religious legal issues are typically addressed, and becomes impossible to apply when an individual fears religious persecution such as black magic, voodoo, or witchcraft that is incompatible with the Western perspective of a “reasonable” fear. Evaluating another culture’s religious beliefs through the lens of a “reasonable person” standard results in blanket discrimination against non-Western ideologies.

The Supreme Court’s long-standing approach to determining an individual’s religious beliefs is that it is only appropriate to determine the sincerity of the belief, not the underlying veracity of the belief itself. The same standard should be applied towards asylum seekers whose fear of returning to their home country is rooted in their religious beliefs.

Keywords: asylum, well-founded fear, religion

JEL Classification: K37

Suggested Citation

Black, Maritza, Adjudicating the Religious Beliefs of an Asylum Seekers: When the ‘Well-Founded Fear’ Standard Leads Courts Astray (November 24, 2019). Available at SSRN: https://ssrn.com/abstract=3492738 or http://dx.doi.org/10.2139/ssrn.3492738

Maritza Black (Contact Author)

Concordia University School of Law ( email )

501 W. Front St
Boise, ID 83702
United States

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