Human Frailty, Unbreakable Victims, and Asylum

This article analyzes the asylum decisions of immigration agencies and federal appellate courts and demonstrates that the case law driven standard for persecution is out of step with the original meaning of the term, international law standards, and contemporary understanding of how human beings experience physical and mental harm. Medical and psychological evidence establishes that even trauma at the lower end of the spectrum of severity can inflict lasting and debilitating effects on people’s health. Yet over the last three decades, virtually no court decisions have decreased the showing of harm needed to establish persecution. To the contrary, courts have generally ratcheted up what is required. Today, most judicial decisions rest on the unwarranted assumption of an unbreakable asylum applicant who must show systematic and escalating physical mistreatment over a sustained period or a single instance of extraordinary harm that results in a scar, disability, or other lasting physical injury. Although mental harm can qualify as persecution, courts rarely find persecution based solely on mental mistreatment. And courts routinely fail to consider the longstanding mental effects of physical trauma. Court decisions on persecution are consistent with troubling studies suggesting people have difficulty empathizing with, and understanding, the situations of others when there is a lack of immediacy, and that decision makers and authority figures are prone to making racialized attributions of pain on the baseless assumption that people of color can withstand more pain than white people. Decision makers should seek to minimize the tendency to downplay the pain of others in asylum adjudications and adopt a human rights approach, which tags the concept of persecution to the violation of a human right and better tracks the prevailing understanding of how humans experience both physical and mental mistreatment, which grows more encompassing over time.