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Jason Dzubow on Political Asylum

The Forgotten Path to Asylum: “Other Serious Harm”

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In most cases, to obtain asylum, an applicant must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.* But there are a couple of exceptions: "Humanitarian Asylum" and "Other Serious Harm."

Humanitarian asylum allows an applicant to receive asylum if she "demonstrate[s] compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution." 8 C.F.R. 208.13(b)(1)(iii)(A).* In other words, we don't send a person back to a country where she faced severe past persecution based on a protected ground, even if it would be safe for her to return to that country today.* I had a case a few years ago that illustrates this type of relief-My client was a 10-year-old Tutsi girl in Rwanda in 1994.* When the genocide began, she went with her mother and two siblings to hide in a church.* The Interhamwe militia arrived and separated the people in the church into two groups: one group that would live and one that would die.* The little girl fainted (mercifully) before she could see her mother and one sibling murdered.* Years later, she was in the U.S. seeking asylum.* For some reason, the Asylum Office referred her case to the Immigration Court and she hired me.* We were able to get humanitarian asylum based on the severity of her past persecution.* In a sense (the legal sense), this was an easy case.* Humanitarian asylum is well-known and relatively common.

Kids, eating your vegetables is not "other serious harm."

A less well known form of relief is asylum based on other serious harm.* 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." 8 C.F.R. 208.13(b)(1)(iii)(B).* Put another way, where an asylum applicant suffered past persecution based on a protected ground, but he no longer has a well-founded fear of future persecution based on that ground, he can still obtain asylum if he demonstrates that he could suffer "other serious harm" in his country.* "Other serious harm" does not have to be based on a protected ground, and it does not have to be related to the original persecution.*

I had a case recently where this would have been an appropriate form of relief, had I known about it (why is it that I always learn these types of things after the fact?).* My case involved a guard who worked for the Special Court for Sierra Leone-the court that tried war criminals from the time of the civil war. During the civil war, my client was persecuted based on his political party affiliation.* In 1991, rebels killed his parents in order to retaliate against him for his political activity.* My client was working for the Special Court more recently, and he was assigned to protect an important witness.* Former rebels who did not want the witness to testify asked my client to murder the witness in exchange for money.* He refused, and reported the incident to his superiors.* After his refusal, the former rebels repeatedly threatened to kill him, they broke into his house and left a warning note, and finally they invaded his house to kill him.* He ran from the house and fled the country.

My client satisfied the first prong for "other serious harm" relief-He was persecuted on account of his political opinion during the time of the civil war.* He also satisfied the second prong-He was facing harm or death because he failed to comply with the demands of the former rebels to murder the witness.* Unfortunately, at the time, I did not know about relief based on "other serious harm."*

Luckily for my client (and me), the DHS attorney felt that my client qualified for humanitarian asylum based on the severity of the past persecution, and so asylum was granted.* However, the more appropriate form of relief was asylum based on "other serious harm."* I learned about this avenue of relief at the First Annual USCIS Ombudsman's Conference, which took place about a week after my case.* Aside from the bad timing, it was a great conference.* Anyway, now that I know, I thought I would share some information about "other serious harm," as it might be helpful to others in their cases.

Originally posted on the Asylumist:

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