Refugee status in the USA. Emigration to the USA.

The refugee status determination process takes place in two stages:

1. Clarification of the facts relating to the case;
2. Application to these facts of the definition of the 1951 Convention and the 1967 Protocol

The provisions of the 1951 Convention defines who is a refugee include:

1. Positive (or inclusive) clauses set out the criteria that a person must meet to be recognized as a refugee. These provisions form the positive basis on which the determination of refugee status is built;
2. Exceptional provisions, which have a negative connotation, indicate the conditions under which a person ceases to be a refugee. Exceptional clauses also set out the circumstances in which a person cannot acquire refugee status, even if they meet the positive criteria contained in the inclusive clauses.

Inclusive provisions.
According to article 1 A 2) of the 1951 Convention, the concept of “refugee” applies to any person who “…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable to avail himself of the protection of that country or is unwilling to avail himself of such protection owing to such fear; or, having no particular nationality and being outside the country of his former habitual residence as a result of such events, is unable or unwilling to return to it owing to such fear.”
Thus, there are several main elements in the definition of a refugee:

1. Well-founded fears;
2. The pursuit;
3. Evidence of race, religion, nationality, membership of a particular social group, or political opinion;
4. Being outside the country of one’s nationality;
5. Inability or unwillingness to benefit from the protection of the country of origin.

Let’s analyze these elements.

Well-founded concerns.

The words “well-founded fear of being persecuted” are key to the definition. The notion of “well-founded fear” includes subjective (fear) and objective (well-founded) elements, both of which must be considered in determining refugee status (paras. 37, 38 of the Guide).
It is assumed that unless a person seeks adventure or simply wants to see the world, he will never normally leave his home and country without compelling circumstances. There may be many compelling and understandable reasons, but only one stands out as a refugee. The expression “because of a well-founded fear of being persecuted” for the reasons mentioned, with an indication of specific circumstances, makes all other reasons for the flight not related to this definition. This does not apply to persons such as victims of famine or natural disasters unless they also have a well-founded fear of being persecuted for one of the above reasons. However, other reasons, taken as a whole, may also be relevant to the refugee status determination process, since all circumstances must be taken into account for a correct understanding of the merits of the case (para. 39 of the Guide).
Subjective elements. Fear is a state of the psyche and, therefore, a subjective condition. In some cases, recorded facts of past persecution will be enough to make sure that there is a fear of future persecution. In several other cases, it is necessary to assess the identity and credibility of the claims of the person claiming refugee status. Attention should be paid to his past personal and family life, belonging to racial, religious, national, social, and political groups, and his judgments (pp. 40, 41 of the Guide).
Objective elements. The statements of a refugee claimant must be assessed in the overall context of the situation. Knowledge of the conditions in the country of origin of the applicant is a key factor in assessing the credibility of his statements and the validity of his claim. In general, it is possible to regard the applicant’s fears as well-founded if there are grounds to believe that the continuation of his stay in the country of origin has become unbearable due to the reasons indicated in the determination, or will become unbearable if the applicant is returned to this country based on known facts about the situation in the country of refugee. These considerations should not always be based on the applicant’s personal experience. Events that happened to relatives, acquaintances, and other members of the same racial and social group may confirm that the fear of a person sooner or later becoming a victim of persecution is quite justified (although in the case of a well-known person, the possibility of persecution may be even greater than in the case with an ordinary person) (p. 43 of the Guide).
Economic migrants.
An economic crisis that deprives a person of all opportunities to earn a livelihood can indeed be equated with persecution. The economic policy of the state may undermine the situation of a certain part of the population (for example, deprivation of the right to trade, discriminatory or excessive taxation about a particular ethnic or religious group), the victims of these measures may, under the pressure of circumstances, leave the country, becoming refugees. However, persons who leave their countries solely to improve their financial situation, and not because of fear of persecution, are not refugees, but economic migrants (para. 63 of the Guide).
Passports.
The possession of a valid passport by a person is not an obstacle to obtaining refugee status. In some cases, refugees obtain passports through official channels. In other cases, passports are issued to them for the sole purpose of facilitating the exit of “unwanted elements” from the country. Passports can be obtained illegally. There may be exceptional situations where a person who meets the criteria for refugee status may keep his national passport or obtain a new one from the authorities of the country of citizenship by special order, especially in cases where such orders do not imply that the holder of the national passport can return to his country without prior permission. This situation does not prevent refugee status from being granted (p. 93 of the Guide).

The pursuit.

A well-founded fear must be related to persecution. Persons fearing famine or natural disasters are not refugees unless they have a well-founded fear of persecution for one of the reasons set out in the definition. Neither the 1951 Convention nor any other international instrument contains a definition of persecution. It can be concluded from Article 33 of the Convention that a threat to life or physical freedom due to racial, religious, or national affiliation, political opinion, or membership in a particular social group constitutes persecution.
The Universal Declaration of Human Rights of 1948 contains fundamental human rights and freedoms. Violation of these rights as a result of the above reasons may be considered persecution. These rights include:

• freedom from torture or cruel, inhuman, or degrading treatment or punishment;
• freedom from slavery and servitude;
• recognition of legal personality;
• freedom of thought, conscience, and religion;
• freedom from arbitrary arrest and detention;
• freedom from arbitrary interference in private and family life.

Other wrongful acts or threats may also amount to harassment, depending on the situation, including:

• punishment or repeated punishment for violation of the law, disproportionate to the crime committed. In doing so, it should be borne in mind that a refugee is a victim or potential victim of injustice, and not a fugitive from justice;
• the punishment due to one of the reasons set out in the definition (for example, for illegal religious teaching);
• economic restrictions due to one of the reasons included in the definition, which is so severe as to deprive the person of the ability to earn a livelihood;
• harsh sanctions for illegal departure or stay abroad without proper permission if the departure was caused by the reason mentioned in the definition.

Persecution is usually associated with the actions of the authorities of a country. There are, however, situations where the government of the country of origin cannot be directly accused of persecution, but the state is unwilling or unable to provide protection. In such cases, the lack of protection may be the cause of persecution. The concept of persecution is thus not limited to the actions of the government or its officials.
Refugee claims may contain allegations of a well-founded fear of persecution on a combination of grounds. The authors of such appeals may have experienced various forms of discrimination, each of which may not be persecution, but has affected their social and economic situation. Such treatment could cause a feeling of anxiety and uncertainty about the future. Such cases, compounded by other adverse factors such as a general climate of uncertainty in the country of origin, may give rise to justified allegations of a well-founded fear of persecution (para. 53 of the Handbook).

Race, religion, nationality, membership in a particular social group, or political opinion.

Race.
The concept of race should be understood in the broadest possible sense, including all kinds of ethnic groups, which in everyday language may not be called races. Often this is due to belonging to a specific social group of common origin, forming a minority among the population.
Racial discrimination is often equated with persecution within the meaning of the 1951 Convention. These are cases where, as a result of racial discrimination, human dignity is degraded to such an extent that it becomes incompatible with the most elementary and inalienable human rights, or when indifference to racial restrictions may lead to serious consequences (paragraphs 68, 69 of the Guidelines).
Religion.
The 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights proclaim the right to freedom of thought, conscience, and religion. This right also includes the freedom to change one’s religion and the right to spread one’s religious beliefs, the right to religious education, worship, and observance of religious rites and rituals.
Examples of religious persecution include:

• prohibition of membership in religious communities;
• prohibition of religious prayers in public or private;
• prohibition of religious education;
• significant discrimination on the grounds of religious practice or membership in a particular religious community (paragraphs 71, 72 of the Guidelines).

Citizenship.
The interpretation of the term “nationality” in the interpretation of the 1951 Convention is not limited to the concept of “nationality” and does not coincide with nationality, but also includes belonging to a particular ethnic, religious or linguistic group and may coincide with the concept of “race”. Therefore, persecution based on nationality can be expressed in a hostile manner and include measures directed against a national minority (religious, ethnic). Even the fact of belonging to such a minority may, under certain circumstances, give rise to a well-founded fear of persecution.
If there are several ethnic or linguistic groups in the territory, it is not always possible to distinguish persecution based on the nationality from persecution based on political opinions, provided that political movements are combined with a certain nationality (paras. 74-76 of the Guide).

Social group.
Specific social groups, as a rule, unite people of similar origin, leading a similar lifestyle and having similar social status. The family, for example, can be considered a specific social group, just like social associations and classes. The allegation of persecution on this basis is often accompanied by fears of persecution on other grounds, such as race, religion, and nationality. The reason for persecution is the lack of confidence in the loyalty of a particular social group to the government, or the political goals or economic activities of a social group that impede the implementation of government policy (pars. 77, 78 of the Guide).
The 1951 Convention is not the only international instrument recognizing the importance of social factors. Article 2 of the 1948 Universal Declaration of Human Rights mentions “national and social origin” as one of the grounds on which discrimination should be prohibited. Similar provisions are contained in the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights of 1966.

Political beliefs.
The fifth and final reason given in the 1951 Convention for a well-founded fear of persecution is a political opinion. The definition of this concept is based on Article 19 of the Universal Declaration of Human Rights, which states that “everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and freedom to seek, receive and impart information and ideas. by any means and regardless of frontiers.” This basic principle is also confirmed in article 19 of the International Covenant on Civil and Political Rights.
The term “political opinion” should therefore be understood in a broad sense, which includes the belief and expression of views on any issue related to the sphere of activity of state and political institutions. The mere fact of having a political opinion other than the government’s ideology does not constitute grounds for an application for refugee status. The applicant must provide evidence of a well-founded fear of being persecuted for holding such beliefs.

This assumes that:

• the attitude of the authorities towards the applicant’s convictions is intolerant;
• the applicant’s convictions are known to the authorities or are attributed by them to the applicant;
• the applicant, or others in a similar position, have been harmed for their beliefs or threatened with reprisals.

It is possible, however, that the applicant did not express his convictions, but because of the firmness of his convictions, there is reason to believe that in the future they will be expressed and this will lead to a conflict with the authorities. If the assumptions are reasonable, such an application can be considered as a person with a fear of persecution for political opinions (paragraph 82 of the Guidelines).
The situation is more complicated in cases where the measures taken against the applicant are like sanctions for an allegedly committed criminal act against state power or an economic crime that he did not commit. In such circumstances, it is necessary to ascertain the applicant’s political opinions and determine whether they led or could lead to the persecution the applicant fears (para. 81 of the Guide).

Gender.
Gender is not one of the Convention grounds for prosecution. However, there are cases where women seeking asylum have been persecuted because of their gender. An example of such situations may be the cruel treatment of women who have violated the social customs of behavior accepted in their society. Other examples include cases of severe and systematic discrimination against women based on their gender. According to the recommendations of the European Parliament and the Executive Committee of the UNHCR (Conclusion 39 (XXXVI) – 1985 “Refugee Women and International Protection”), in such situations, refugee status should be granted by the provisions of the Convention, or women in such situations should be considered as belonging to certain social groups, and on this basis to recognize their right to receive refugee status.

Being outside the country of nationality or former habitual residence.
The term “outside the country of their nationality” refers to those persons who, unlike stateless persons, have a nationality. In most cases, refugees retain the citizenship of their country of origin.
The main requirement for obtaining refugee status is that the applicant, who has citizenship, was outside the country of his nationality. There are no exceptions to this rule. International protection cannot be applied as long as the person is in the territory under the jurisdiction of his country.
As emphasized in the concept of refugee, a person’s well-founded fear of being persecuted must relate to the country of his nationality. As long as he has no misgivings about his country of nationality, he can be expected to avail himself of the protection of that State. In such a case, he does not need international protection and is therefore not a refugee.
The fear of persecution need not extend to the entire territory of the refugee’s country of nationality. Thus, in the event of inter-ethnic clashes or other serious disturbances amounting to conditions of civil war, the persecution of a particular ethnic or national group may be limited to only part of the territory of that country. In such cases, a person should not be denied refugee status simply because he or she could seek asylum in another part of the same country if, given the circumstances, it would be unrealistic to wait.
Stateless persons (stateless persons), unlike persons with citizenship, can become refugees if they are outside the country of their former residence for the reasons specified in the definition. In addition, having left the country for these reasons, a stateless person cannot return to it (paragraphs 88-91 of the Guide).

Refugees “in place”.
A person cannot appeal to international protection if he is within the territorial jurisdiction of his country. At the same time, the Convention does not state that persecution can only take place within the borders of the country of origin. The fear of persecution may stem from conditions that arise after the person has left the country, as in the case of refugees “in place”.
As shown above, refugees in situ are a special case. These are persons who become refugees as a result of certain events that took place in their country of origin during their absence or because of their activities outside the country. In this case, an applicant who alleges that he has a well-founded fear of being persecuted because of his political opinion need not prove that his political views were known to the authorities of his country before he left it. Perhaps he had to hide his political opinions and did not have to experience any kind of discrimination or persecution (paras. 94-95 of the Handbook).
However, the mere fact of denial of government protection or denial of return may indicate a well-founded fear of persecution. In these circumstances, careful consideration should be given to the consequences that an applicant of a particular political opinion would face if returned.

Inability or unwillingness to use protection.
The inability to use protection implies the presence of circumstances that are beyond the will of the person concerned. An example of such circumstances would be war, civil war, or other turmoil that prevents a state from protecting its citizens or renders such protection ineffective. The applicant may also be deprived of the protection of the country of his nationality or habitual residence. Such deprivation of protection may contribute to the applicant’s fear of being persecuted, which is also one of the elements of persecution.
The term “reluctance” refers to refugees who refuse to accept the protection of the government of their country of nationality or the country of their former habitual residence. The reason for such a refusal is expressed by the phrase “because of such fears”. Where a person is willing to accept the protection of his country, such willingness is generally incompatible with a claim that he has a well-founded fear of being persecuted. If the applicant has access to the protection of his country of nationality and has no well-founded fear reasons for refusing such protection, then the applicant does not need international protection and is not a refugee (paragraph 100 of the Guidelines).
Statelessness and refugee status are not identical concepts. Not all stateless persons are refugees, just as not all refugees are stateless. In some cases, persons fleeing their countries may indeed be deprived of citizenship, but in several other cases, they may retain a formal link with their country. Stateless persons must be outside the country of their former habitual residence for the reasons set out in the definition. If such reasons do not exist, then such a stateless person is not a refugee (para. 102 of the Guide).