14 October 2011

What is Persecution?

A paper entitled "Defining Persecution" was just archived in the Social Science Research Network (SSRN) repository. It seeks to provide a unified definition of the term "persecution," "through the prism of U.S. refugee law." After a lengthy analysis, the definition ultimately proposed in this paper is "the illegitimate infliction of sufficiently severe harm."

A July post on the IntLawGrrls blog, "Defining Persecution to Minimize Fraud," highlights a recent U.S. 7th Circuit Court of Appeals case that defines persecution "in a way that reflects the real experiences of genuine refugees, rather than setting the bar for past harms so high that asylum applicants feel the need to bolster their stories to ensure their safety." Specifically, the judge writes on p. 9:
Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.
The judge goes on to admonish the Board of Immigration Appeals (BIA) for using an "I know it when I see it" approach to persecution.

Another recent paper, "The Concept of 'Persecution' in Refugee Law: Indeterminacy, Context-sensitivity, and the Quest for a Principled Approach," engages in a more wide-ranging discussion of "persecution." In it, the author analyzes some of the reasons why decision-makers may be ambivalent about the idea of adopting an unequivocal definition of persecution.

For interpretations of this concept by national jurisdictions, search in the Refugee Caselaw database on Hathaway number 4.0.

[Photo credit: "Dictionary," Wikipedia.org]

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