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Unpleasantness Isn't Persecution in Asylum Appeal

By Robyn Hagan Cain on September 05, 2012 | Last updated on March 21, 2019

Unpleasantness — even extreme unpleasantness — does not qualify as persecution in an immigration appeal, according to the First Circuit Court of Appeals.

This week, the Boston-based appellate court ruled that a Ukrainian woman who was harassed, beaten, and arrested in Ukraine for her Pentecostal beliefs had endured some tough times, but had not proven persecution.

Olena Rebenko came to the U.S. in 2001 on a J-1 non-immigrant visa, which she later exchanged for an F-1 student visa. In 2004, she filed an affirmative application for asylum and withholding of removal.

Rebenko testified that she experienced mistreatment in Ukraine on account of her Pentecostal faith on four occasions: when she along with her religious congregation in May 1999, when she received threatening phone calls from nationalists following her arrest, when she was mocked for her religious beliefs during her 2000 graduation ceremony, and when skinheads beat her for her beliefs in 2000.

Rebenko didn't report any significant mistreatment before May of 1999 or after June of 2000, though she had practiced Pentecostalism since childhood and continued to live in Ukraine until July of 2001. The immigration judge (IJ) denied her application.

So let's talk about asylum.

An alien may be eligible for asylum if she is a refugee, which requires a showing of either past persecution or a well-founded fear of future persecution.

An applicant may demonstrate a well-founded fear indirectly, relying on a rebuttable presumption arising from a showing of past persecution, or directly, showing that:

  1. She has a fear of persecution in her country of origin,
  2. There's a reasonable probability she will suffer persecution if she returns, and
  3. She is unable or unwilling to return to her country due to that fear.

For purposes of establishing the right to asylum, the discriminatory experiences must have reached a "fairly high threshold of seriousness, as well as some regularity and frequency." Persecution "always implies some connection to government action or inaction." Violence by private citizens, absent proof that the government is unwilling or unable to address it, is not persecution."

Here, Rebenko's arrest was the only action attributable to the government. Based on the facts surrounding the arrest, the appellate court agreed that a reasonable adjudicator could find that the arrest did not qualify as persecution. Furthermore, the court said the IJ could have reasonably concluded that the forms of mistreatment Rebenko described were not "systematic" but rather "reflective of a series of isolated incidents" over the course of a particularly unpleasant year.

A series of unfortunate events is not the golden ticket to asylum. Let your immigration clients know that they must prove a pattern of government persecution to win an asylum appeal.

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