Objective V. Subjective Fear In Asylum Cases
Author: US Asylum Lawyer Alena Shautsova
To win one’s asylum case in the United States, a person has to prove past persecution or reasonable fear of future persecution on account of a protected ground. Fear is only fear unless and until it martializes in specific harm. Why some “fear” will get you an asylum in the United States and a green card, and in other instances, a judge would reject your claim?
Asylum fear must be not only subjective but also “objective.” What exactly constitutes an objective fear is subject to courts’ interpretation. Fear is subjective when asylum applicant can demonstrate that he/she is genuinely afraid of some harm. An asylum applicant demonstrates it through credible testimony. To demonstrate that a subjective fear is objectively reasonable, an applicant must “demonstrate through credible, direct, and specific evidence that a reasonable person in his position would fear persecution.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997). “For an alien’s fear of persecution to be objectively reasonable, the fear must have a basis in reality and must be neither irrational nor so speculative or general as to lack credibility.” Perinpanathan v. INS, 310 F.3d 594, 598 (8th Cir. 2002).
For example, often asylum seekers state that they are afraid that in their home country someone will harm them. An asylum seeker may genuinely believe that if he/she comes back to their home country a certain group of people or a certain person will beat them or even kill them. But this type of fear is not sufficient to get asylum in the United States. To prevail in one’s case, a person has to present evidence of specific threats, evidence that the asylum seekers observed specific people who may harm him/her (or group of such people), evidence that other people in his/her country were also harmed based on the same protected ground. Often, however, there is a “gray area” between the objective and subjective fear. For example, in some cases, a person who testifies credibly can win his/her case because he/she also brings a credible witness. But in other cases, the same group of evidence may be found insufficient by a judge. Often, the judge will rely on country conditions reports to determine if what an asylum seeker is stating may happen in his/her country. That is why it is important to present one’s evidence fully and in the light most favorable to one’s asylum case. Sometimes, official country conditions reports do not cover important aspects of one’s asylum case, sometimes, such reports are simply inaccurate.
If you have questions regarding asylum cases, you are free to contact us at 917-885 2261