Humanitarian Asylum

Elements of Humanitarian Asylum

  • Past persecution has been established
  • That situation has changed so that there is no longer a well-founded fear of persecution
  • Discretionary grant possible based on two prongs of 8 C.F.R. 1208.13(b)(1):
    • Compelling reasons arising out of severity of past persecution (iii)(A)
    • Reasonable possibility of other serious harm if returned to his/her country (iii)(B)
      • May be wholly unrelated to past harm
      • Threshold is “so serious that it equals the severity of persecution” (Not mere economic disadvantage, inability to get preferred job)
      • …but not nec. on account of race, religion, nationality, membership in a particular social group, or political opinion
      • Need not show that past harm was atrocious
  • Adjudicators should focus on
    • Current conditions (e.g., civil strife, extreme economic deprivation)
    • Potential for new physical or psychological harm
    • Degree of harm suffered (Abrha v. Gonzales)
    • Length of time over which harm was inflicted (Abrha v. Gonzales)
    • Evidence of psychological trauma (Abrha v. Gonzales)

Humanitarian Asylum Cases — BIA

  • Matter of Chen, 20 I&N Dec. 16 (BIA 1989): humanitarian asylum because of severe past persecution as a discretionary grant is first discussed; added to the INA in 1990. “Chen grants” = “compelling reasons” (Summary)
  • Matter of B-, 21 I&N Dec. 66, 72 (BIA 1995): humanitarian asylum appropriate bcz applicant had been imprisoned for 13 months in awful conditions including torture.
  • Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998): humanitarian asylum based on past atrocious forms of persecution—this one didn’t qualify. Only form of humanitarian asylum available at the time [(iii)(A)]. (Summary)
  • Matter of S-A-K- & H-A-H-, 24 I&N Dec. 464 (BIA 2008): eligible for humanitarian asylum because of atrocious suffering resulting in continuing physical pain (female genital mutilation).
  • Matter of D-I-M-, 24 I&N Dec. 448, 450 (BIA 2008): properly follow the regs of 8 C.F.R. 1208.13(b)(1) to evaluate asylum claim. Presumption of well-founded fear when past persecution has been shown; DHS gets to rebut this.
  • Matter of L-S-, 25 I&N Dec. 705 (BIA 2012): Emphasizes that “other serious harm” is a “specific, additional, and separate avenue for relief” (714). (Summary page)

Humanitarian Asylum Cases — Circuit Courts

  • Desir v.Ilchert, 849 F.2d 723, 729 (9th 1988): re. well-founded fear of future persecution (mainly about political persecution; remanded to figure out future possibility) (Summary)
  • Kazlauskas v. INS, 46 F.3d 902, 906 (9th 1995): (iii)(A) is about “atrocious” persecution–only option, and this petitioner did not qualify.  (Summary)
  • Lopez-Galarza v. INS, 99 F.3d 954, 961-62 (9th 1996): persecution sufficiently atrocious to warrant humanitarian asylum
  • Galina v. INS, 213 F.3d 955, 959 (7th 2000): “This assumption prompts us to note the rather pointed reminder to the BIA by one of our sister courts of appeals not to treat Country Reports, ‘as is its tendency, as Holy Writ.’” (Sheriff at 592)
  • Lal v. I.N.S., 255 F.3d 998, 1004 (9th Cir. 2001), opinion amended on reh’g, 268 F.3d 1148 (9th Cir. 2001): Severe past persecution does not require an ongoing disability
  • Feresin v. Ashcroft, 83 F.App’x 904, 907 (9th Cir. 2003): Severe persecution
  • Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004): burden of proof rests on gov’t if there’s been changed country conditions. (And please use up-to-date reports, not “stale” ones!). “Other serious harm” case (Summary)
  • Boer-Sedano v. Gonzales, 418 F.3d 1082, 1090-91 (9th 2005): Gay AIDS patient facing unemployment & lack of medical care in MX as “other serious harm”
  • Mohammed v. Gonzales, 400 F.3d 785, 801 (9th 2005): Somalia’s poverty & ongoing human rights abuses as “other serious harm”
  • Abrha v. Gonzales, 433 F.3d 1072, 1076 (8th 2006): An example of not meeting the burden for future possible persecution after DHS rebuttal re. country conditions. In dicta (not holding, and quoting N-M-A-🙂 “holding that relevant factors for humanitarian asylum include the degree of the harm suffered, the length of time over which the harm was inflicted, and evidence of psychological trauma resulting from the harm” (Matter of L-S-, 707). (Summary)
  • Naizgi v. Gonzales, 455 F.3d 484 (4th 2006): Humanitarian asylum limited to most atrocious abuse.
  • Ghotra v. Gonzales, 179 F.App’x 989 (9th Cir. 2006): Severe past persecutions
  • Jalloh v. Gonzales, 498 F.3d 148 (2d Cir. 2006): Must show evidence of long-lasting mental or physical effects of the persecution
  • Ben Hamida v. Gonzales, 478 F.3d 734, 740-41 (6th 2007): to establish humanitarian asylum claim, must first show past persecution.
  • Khoyavswkiy v. Mukasey, 540 F.3d 555, 576-77 (7th Cir. 2008): Inability to access medication as “other serious harm”
  • Sheriff v. A.G., 587 F.3d 584, 596 (3d Cir. 2009): The possibility of being murdered may qualify as “other serious harm” (Summary)
  • Sholla v. Holder, 397 F. App’x 253 (8th 2010): Review of humanitarian asylum case
  • Kone v. Holder, 596 F.3d 141, 152-53 (2d Cir. 2010): mental anguish of mother re. daughter’s FGM may constitute “other serious harm”
  • Pllumi v. Attorney General, 642 F.3d 155, 162-63 (3d Cir. 2011): harm resulting from unavailability of medical care could qualify as “other serious harm” (Summary)
  • Ordonez-Quino v. Holder, 760 F.3d 80, 94 (1d Cir. 2014): Extraordinary suffering and permanent disability are factors to consider re. severe past persecution