Olivia Ilgar | Navigating Asylum: The Standards in Establishing Persecution
INTRODUCTION
Under the Immigration and Nationality Act (“INA”), a refugee seeking asylum must prove she “(1) has a well-founded fear of persecution; (2) on account of a protected ground [e.g., race, religion, nationality, membership in a particular social group, or political opinion]; (3) by an organization that the Salvadorian government is unable or unwilling to control” Hernandez-Avalos v. Lynch, 784 F.3d at 949 (4th Cir. 2015).
Odalis Mireida Chicas-Machado, a native citizen of El Salvador, faced escalating persecution from MS-13 gang members during her walks to and from church. Chicas-Machado v. Garland, 73 F.4th 261, 263 (4th Cir. 2023). Due to harassment from gang members to have her abet their activity—and their subsequent death threats when she refused—she sought asylum in the United States, contending that her religious beliefs and activities with the church made her a target. Id. at 264. However, both the Immigration Judge and the Board of Immigration Appeals (“BIA”) denied her application, questioning the nexus between her persecution and religion, as well as the viability of her proposed social groups. Id. Chicas-Machado sought review of the decision, emphasizing the life-threatening circumstances she fled in pursuit of safety and protection. Id.
A split exists on what degree the persecution an asylum seeker fears is dependent on their membership within a protected group. The Fourth Circuit emphasizes that a protected ground can be essential in the applicant’s larger claim when granting asylum. In contrast, the Tenth and Eleventh Circuit have a narrower interpretation of the nexus requirement, contending that persecution should be established based on whether the petitioner was specifically targeted due to the protected ground.
THE ISSUE
Must an immigrant seeking asylum in the U.S. because they were persecuted on account of their religion show that their religion was the sole reason for the persecution?
THE SPLIT
The Fourth Circuit
The Fourth Circuit emphasizes that the person seeking asylum must demonstrate that their protected ground is at least one central reason for persecution to establish a nexus. 8 U.S.C. §1101(a)(42)(A). In Chicas-Machado, the panel analyzed the decisions in Hernandez-Avalos, where the Court overturned BIA findings and claimed that a narrow interpretation of the nexus requirement was inadequate. Hernandez-Avalos, 784 F.3d 944, 946 (4th Cir. 2015). The Court concluded that a threat from a gang, directed at the petitioner for preventing her son from joining the gang, established a nexus based on family ties. Id. at 950.
The Fourth Circuit determined that the BIA erred in finding a lack of nexus between Chicas-Machado’s religious beliefs and persecution because they overlooked the connection of her religious affiliation and the persecution she faced from MS-13 gang members, as they targeted her due to her church activities. Chicas-Machado, 73 F.4th at 264. The Court claimed the BIA’s failure to find nexus contradicted their own factual findings, as they found the gang members sought Chicas-Machado’s assistance believing “no one would suspect she would be working with the gang based on her activity and conduct with the church.” Id. at 266. The Court held the gang’s intent to stop or hinder Chicas-Machados’s religious practice was not necessary for establishing eligibility for asylum. Id. at 269.
The Tenth and Eleventh Circuits
The Tenth Circuit rejects the Hernandez-Avalos framework and departs from the nexus standard in Orellana-Recinos v. Garland, 993 F.3d 851, 856 (10th Cir. 2021). Here, the petitioner claimed she was threatened on account of her family ties to her son, citing Hernandez-Avalos for support. The Tenth Circuit rejected her claim, holding that the gang’s ultimate motivation was to recruit the petitioner’s son, not to attack the family based on a protected ground. Id. at 858.
The Eleventh Circuit, in Azurida-Hernandez v. U.S. Att’y Gen., recognized the potential nexus in circumstances between the persecution of an applicant and their religion. 812 F. App'x 935, 937-39 (11th Cir. 2020). The Eleventh Circuit emphasizes that religious persecution may be demonstrated even if the petitioner is targeted for forced labor based on a positive attribute associated with the petitioner’s religion. This approach diverges from the Fourth Circuit’s approach in Chicas-Machado and allows for a more nuanced understanding of religious persecution.
LOOKING FORWARD
The approach the Circuits decide to take impacts the basis of granting asylum. Without further guidance from the Supreme Court, other Circuits may fall along the spectrum created by the split, creating more challenges and hurdles for asylum seekers to face. However, as Congress has shown recently its intent to redefine how asylum may be granted, all precedents at the Circuit level may soon be re-evaluated.