Humanitarian Asylum, The Forgotten Protection

To obtain asylum in the USA, an applicant must demonstrate a well-founded fear of persecution that is based on a protected ground. There are five protected grounds: race, religion, nationality, political opinion and social group. The persecution must include evidence of past and future persecution. Demonstrating past persecution enables acknowledgement of possible future persecution. Given the length of time it takes many asylum applications to go through the asylum machine, it is not surprising that the Government is able to employ the presumption of future persecution by the passage of time, change of regime, death of a persecutor or other changed circumstances particular to the claim. Our focus today is this “future persecution” requirement or, more precisely, the lack thereof.

The Proposition:

Asylum laws accept that there are times when future persecution based on a protected ground may no longer exist, but that it would also be inhumane to return the person to the country of their past persecution. The law specifically carves out two exceptions for protection; Humanitarian Asylum and Other Serious Harm.

Humanitarian Asylum:

Humanitarian asylum allows an applicant to receive asylum even if the Government has shown that the applicant’s danger has ended and that there would be no future persecution. The applicant must demonstrate “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”.1 There is no exhaustive list of “compelling reasons” and courts have not yet specifically defined the term. Generally, these cases involve harm that is greatly outside our society’s accepted norms, or those that have continuing physical consequences. Take, for example, the case of female genital mutilation (FGM); once the mutilation has been performed, there is no risk of future mutilation. However, we view the practice of FGM as an atrocious form of persecution that results in continuing physical and emotional pain and discomfort, thus, a grant of humanitarian asylum would be appropriate.2

Other Serious Harm:

An even less utilized and known category for an asylum grant is the “other serious harm” category. To obtain asylum on this basis, an applicant who has suffered past persecution based on a protected ground must “establish that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”.3 Thus, where an asylum applicant suffered past persecutio