Legal Definition of Refugee
Any person who is outside any country of such person's nationality.2 min read
2. Establishing Eligibility
3. Withholding Deportation
Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 USC Section 208(a) of the Immigration and Nationality Act (Act), 8 U.S.C. S 1158(a), gives the Attorney General discretion to allow political asylum to any alien the Attorney General determines to be a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. S 101(a)(42)(A).
A refugee is defined as an alien unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. To establish eligibility on the basis of a "well-founded fear of persecution," the alien's fear of persecution must be both subjectively genuine and objectively reasonable. Arriaga-Barrientos v. INS, 925 F.2d 1177, 1178 (9th Cir. 1991). "The objective component requires a showing by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution." Id. at 1178-79. The applicant has the burden of making this showing. Fisher v. INS, 37 F.3d 1371, 1376 (9th Cir. 1994).
Section 243(h) of the Act, 8 U.S.C. S 1253(h), requires the Attorney General, subject to certain exceptions, to withhold deportation "if the Attorney General determines that such alien's life or freedom would be threatened... on account of race, religion, nationality, membership in a particular social group, or political opinion." Courts have held that an alien is statutorily eligible for such relief if he or she demonstrates a "clear probability of persecution." Arriaga-Barrientos, 925 F.2d at 1178.
This standard is generally more stringent than the "well-founded fear " standard applicable to requests for asylum and can be met only by showing that it is more likely than not that the alien will be persecuted if deported. Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993). Therefore, failure to satisfy the lesser standard of proof required to establish eligibility for asylum necessarily results in a failure to demonstrate eligibility for withholding of deportation as well. Arriaga-Barrientos, 925 F.2d at 1180.