sections 208(b)(1)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1158(b)(1).
Section 241(b)(3)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1231(b)(3)(A).
In order to establish a “well-founded fear” of persecution, an asylum applicant need only show a reasonable possibility that she will be persecuted. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). An applicant who establishes past persecution by the government (or an entity the government cannot or will not control) on account of one of the five protected grounds has met that test and established a rebuttable presumption that she has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1).
An applicant can also establish asylum eligibility by demonstrating an independent well-founded fear of future persecution, i.e., a reasonable possibility that she will be persecuted by the government (or an entity the government cannot or will not control) on account of one of the five protected grounds. See 8 C.F.R. § 208.13(b)(2); Ayele v. Holder, 564 F.3d 862, 868 (7th Cir. 2009).
The Supreme Court has stated that the following is sufficient to establish a well-founded fear: 1. “having a fear of an event happening when there is less than a 50% chance that it will take place, and 2. “establishing a 10% chance of being shot, tortured, or…otherwise persecuted.” Cardoza-Fonseca, 480 U.S. 421.
A refugee is defined at INA §§208(B)(1)(A), 101(a)(42)(A) as:
Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The Second Circuit granted Petitioners' petition for review and held that to qualify as a "refugee" under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. The court explained that to be eligible for asylum and withholding of removal, an individual must be a "refugee." 8 U.S.C. Section 1158(b)(1)(A). But this is only one step in the asylum process. Even if an individual is a refugee, there are other bars to asylum, see 8 U.S.C. Sections 1158(a)(2) (exceptions to authority to apply for asylum), 1158(b)(2) (exceptions to eligibility for asylum), and even assuming all bars are overcome, the decision of whether to grant a particular asylum application is still a matter of discretion for the Attorney General. Further, the court held that to be considered a "refugee" under Section 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality.