Protection from a Well-Founded Fear:Applying the Disfavored GroupAnalysis in Asylum Cases

I. IntroductionIn 1998, Taty Lieana Tearsa Sael filed a petition for asylum and withholding of removal.1 Ms. Sael was an Indonesian citizen who was ethnically Chinese and Christian.2 During her childhood in Indonesia, Ms. Sael faced discrimination because of her race and religion.3 As a young woman, native Indonesians attacked the boarding house where she lived, vandalized her car, and aimed racist remarks at her.4 On one occasion, she was riding in a taxi with her native Indonesian husband when a mob threw rocks at the car upon realizing that Ms. Sael was ethnically Chinese.5 In 1998, Ms. Sael and her husband fled Indonesia and came to the United States.6 After they overstayed their non-immigrant visas, Ms. Sael filed a petition for asylum and withholding of removal.7 The Ninth Circuit found that Ms. Sael was eligible for asylum.8In 2003, Wan Chien Kho filed a petition for asylum and withholding of removal.9 Mr. Kho was an Indonesian national who was ethnically Chinese and who converted to Christianity around 1992.10 As a child, Mr. Kho experienced anti-Chinese discrimination at school.11 As a young adult, fellow bus riders "heckled" him when he carried a Bible in public.12 In 1996, a group of Muslims robbed him.13 During anti-Chinese riots in 1998, Mr. Kho was hit in the face when the store he worked in was robbed and looted.14 Later that year, the Christian church that Mr. Kho attended was burned and destroyed.15 The following year, Mr. Kho's new church was also burned down.16 Mr. Kho fled to the United States in 2001, and two years later he applied for asylum and withholding of removal.17 The First Circuit upheld the immigration judge's denial of asylum.18The above stories show how asylum applicants are treated differently across the United States. Botii Ms. Sael and Mr. Kho showed evidence that they had experienced discrimination and persecution because of their race and religion. Despite the similarity of the applicants' stories and that both based their claims of persecution on their status as ethnically Chinese Christians who feared returning to their native Indonesia, only one of them was granted asylum and allowed to remain in the United States.19 This disparity resulted from different interpretations of the statutory requirements for proving asylum across the circuits.20Asylum is a means by which an alien can remain in the United States because of a fear of persecution upon return to his or her home country. An alien is eligible for asylum if he is unable or unwilling to rerum to his home 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."21 In order to establish a well-founded fear of persecution, the alien must establish either that he was the victim of individual, particularized persecution or that a likelihood of future persecution exists because of membership in a persecuted group.Some circuit courts have held that asylum applicants who are unable to prove individual risk of persecution or membership in a group that is targeted for systematic persecution may nonetheless qualify for withholding of removal if they are members of a disfavored group.23 A disfavored group is one that is not targeted for systematic persecution, but is at an increased risk of nonsystematic persecution.24 The disfavored group analysis essentially incorporates a lower threshold standard for the withholding of removal, because the asylum applicant can obtain asylum if he can show membership in a disfavored group, accompanied by some lesser individualized risk of persecution.25 Not all circuits have adopted the Ninth Circuit approach, and variation in acceptance of the disfavored group analysis across the circuits means that similar asylum applicants will be treated differently across the United States. It is this variation that led to the different outcomes for Ms. Sael and Mr. Kho. …