Hing on the Well Founded Fear Persecution Standard for Asylum

Bill Ong Hing (University of San Francisco - School of Law) has posted Turn Asylum on its Head and Presume Eligibility (University of San Francisco Law Review, Vol. 57, No. 479, 2022) on SSRN.  Here is the abstract:

Thirty-five years ago, I was fortunate to be part of the litigation team that won big before the U.S. Supreme Court in Immigration and Naturalization Service v. Cardoza-Fonseca (1987), the case that established that asylum applicants “need not prove that it is more likely than not” that they will be persecuted in their home countries in order to prevail. In fact, in interpreting the statute, Justice Stevens’ majority opinion added: “There is simply no room in the United Nations’ definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event happening.” To me and many others, the implication of the “10%” language is that strong evidence of likely persecution is not required, and that applicants should be given the benefit of the doubt. I think the Cardoza-Fonseca case has definitely made a positive difference in the lives of thousands of asylum seekers. However, unsympathetic asylum officers, immigration judges, federal courts, and enforcement officials have thwarted the generous humanitarian intent of the asylum law and undermined the Cardoza-Fonseca case. They hide behind reasoning related to such things as credibility issues, lack of individualized evidence, protection against victimization by gangs or domestic partners not being the intent of asylum, or that the applicant’s particular social group is too nebulous or broad.

In this essay, I focus on one technical approach to the well-founded fear of persecution standard that should be corrected: the “reasonable person” approach that the BIA has adopted. I argue that the reasonable person approach is inappropriate. I believe that this standard should be replaced with the “reasonable possibility” approach that was intended by the Supreme Court, and a presumption of eligibility for asylum should be adopted akin to what is used in criminal courts.