United States asylum law has not established the meaning of “persecution.” The Immigration and Nationality Act (INA) does not define the term. See 8 U.S.C. § 1101(a)(42). “Although persecution is the fundamental concept at the core of the [INA’s] refugee definition, the term is not statutorily defined and courts have not settled on a single, uniform definition[.]” Mei Fun Wong v. Holder, 633 F.3d 64, 71-72 (2d Cir. 2011) (citations and quotations omitted).1
Courts have recognized that Congress “left the task of defining with precision the phrase ‘well-founded fear of persecution'” to executive agencies,2 but neither federal regulations nor the B.I.A. has established a definition that all circuits have adopted. See, e.g., De Santamaria v. U.S. Att’y. Gen., 525 F.3d 999, 1008 (11th Cir. 2008) (“The term ‘persecution’ is not defined by either the INA or the federal regulations.”); Sahi v. Gonzales, 416 F.3d 587, 588 (7th Cir. 2005) (stating the court could not find “a case in which the [B.I.A.] has defined ‘persecution'”). One academic has observed the term must be necessarily elusive: “There has never been a succinct, definitive definition of ‘persecution,’ because the nature of persecution and our understanding of it keep changing.” Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 379 (2007).
Within that space, federal courts of appeal have offered definitions of persecution for their respective circuits, but no single definition has commanded universal adoption. See, e.g., Marquez v. I.N.S., 105 F.3d 374, 379 (7th Cir. 1997) (“Within these vague contours, neither our case law nor the B.I.A. offers much guidance for sorting out asylum applicants. The prevailing approach is, perhaps unfortunately, largely ad hoc.”). One court has opined persecution “is a protean word, capable of many meanings.”). Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005).
Federal courts of appeal usually begin defining persecution by describing the severity of harm needed to constitute the act. This article surveys how courts have approached that analysis.
Persecution, according to the First Circuit Court of Appeals, “involves a discriminatory harm caused by government action or allowed by government acquiescence that surpasses unpleasantness, harassment, and even basic suffering.” Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008). The court considers as relevant factors “the severity, duration, and frequency of physical abuse,” Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014), and “whether harm is systematic rather than reflective of a series of isolated incidents,” id.
In light of that definition, the First Circuit court cautions it determines persecution on a case-by-case basis:
What constitutes “persecution” is not statutorily defined in the asylum context. We have recognized that “it is in the first instance the prerogative of the Attorney General, acting through the B.I.A., to give content to [that term].” Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005). The B.I.A. has eschewed generic rules for determining the incidence vel non of persecution, preferring instead to proceed on a case-by-case basis. See Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006).
Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir. 2007). See also Ruiz v. Mukasey, 526 F.3d 31, 36 (1st Cir. 2008) (“In light of this lacuna, we have concluded that what constitutes persecution is a question best answered on a case-by-case basis.”). The First Circuit court states its definition denotes “principles that have relatively broad applicability” when considering the term. Jiang, 474 F.3d at 30. But see Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (“[G]iven the nearly infinite diversity of factual circumstances in which asylum claims arise, it would be difficult to develop meaningful generalities that could easily be applied to a broad spectrum of cases.”).
The Second Circuit Court of Appeals “describe[s] persecution as ‘the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground,'” Id. (quoting Ivanishvili v. U.S. Dep’t of Just., 433 F.3d 332, 341 (2d Cir. 2006)). According to the court, its definition “closely tracks that developed by the B.I.A.,” Id. (citing In re S-A-, 22 I. N. Dec. 1328, 1336 (B.I.A. 2000) (defining persecution as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive)).
The Second Circuit court recognizes its definition is “sufficiently general to encompass a variety of forms of adverse treatment, including non-life-threatening violence and physical abuse, or non-physical forms of harm such as the deliberate imposition of a substantial economic disadvantage,” id. (quoting Ivanishvili, 433 F.3d at 341 (internal quotation marks omitted)). However, the court’s formulation is bounded: Persecution is “an extreme concept,” Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir. 2005) (internal quotation marks omitted), and “does not include every sort of treatment our society regards as offensive,” id.
The Third Circuit Court of Appeals considered the B.I.A.’s definition of persecution from Acosta and concluded “the pre-Refugee Act construction of that term should still be followed.” Fatin v. I.N.S, 12 F.3d 1233, 1240-41 (3d Cir. 1993) (discussing Matter of Acosta, 19 I&N Dec. 211 (B.I.A. 1985)). That construction includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” id., in contrast to “[g]enerally harsh conditions shared by many other persons,” Acosta, 19 I&N at 222. The court further notes:
[W]e interpret Acosta as recognizing that the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional. If persecution were defined that expansively, a significant percentage of the world’s population would qualify for asylum in this country — and it seems most unlikely that Congress intended such a result.”
Fatin, 12 F.3d at 1241. The Third Circuit court, like the B.I.A. did in Acosta, excludes from the definition of persecution “generally harsh conditions shared by many other persons.[.]” Chang v. INS, 119 F.3d 1055, 1066 (3rd Cir. 1997) (quoting Acosta, 19 I&N at 211).
The Fatin Third Circuit court further emphasized the “extreme” nature of persecutory conduct, referring to ordinary usage and the definition for the term from the United Nations Convention and Protocol:
We are convinced that the B.I.A.’s interpretation of “persecution,” like its interpretation of “particular social group,” is permissible and thus must be followed. In ordinary usage, the term “persecution” denotes extreme conduct. For example, The Random House Dictionary of the English Language 1444 (2d ed. 1987) defines the term to mean “a program or campaign to exterminate, drive away, or subjugate a people because of their religion, race, or beliefs.” We are aware of nothing indicating that Congress intended to depart from the ordinary meaning of the term “persecution.” Moreover, authoritative interpretations of the United Nations Convention and Protocol also recognize that the concept of persecution refers to extreme conduct. See, e.g., United Nations High Commissioner for Refugees, Handbook of Procedures, supra, note 5, §§ 51, 54, 55.
Fatin, 12 F.3d at 1241 fn. 10. See also Thayalan v. U.S. Att’y Gen., 997 F.3d 132, 139 (3d Cir. 2021) (“Persecution is an extreme concept.”) (quotation marks omitted); but see Cheng v. Att’y Gen. U.S., 623 F.3d 175, 192 (3d Cir. 2010) (“[W]hile the concept of persecution is extreme, it is not an impossible standard to satisfy.”) (quotation marks and citations omitted).
According to the Fourth Circuit Court of Appeals, “[p]ersecution involves the infliction or threat of death, torture, or injury to one’s person or freedom, on account of one of the enumerated grounds in the refugee definition.” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (quotations omitted).
In analyzing severity of harm, the Fourth Circuit Court of Appeals distinguishes between persecution and more minor forms of harm like harassment or mistreatment. According to the court, “persecution may include actions less severe than threats to life or freedom, but actions must rise above the level of mere harassment to constitute persecution.” Tairou v. Whitaker, 909 F.3d 702, 707 (4th Cir. 2018). “[A] key difference between persecution and less-severe mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents.” Baharon v. Holder, 588 F.3d 228, 232 (4th Cir. 2009) (citing Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005)) (quotation marks omitted). And “[v]iolence or threats to one’s close relatives is an important factor in deciding whether mistreatment sinks to the level of persecution.” Baharon, 588 F.3d at 232.
The Fifth Circuit Court of Appeals relies on the B.I.A.’s analysis of persecution—though not from Acosta, as the Third Circuit court did—in setting the definition of persecution as:
The infliction or suffering of harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage, or the deprivation of liberty, food, housing, employment, or other essentials of life.
Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (quoting Matter of Laipenieks, 18 I&N 433, 456-57 (B.I.A. 1983)); see also Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006).
The Fifth Circuit court further has explained: “Persecution . . . is an extreme concept that does not include every sort of treatment our society regards as offensive.” Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017) (quotations omitted). “The harm or suffering need not be physical, but the persecutor must be said to have engaged in extreme conduct,” Morales v. Sessions, 860 F.3d 812, 816 (5th Cir. 2017) (quotations omitted), “requir[ing] more than a few isolated incidents of verbal harassment or intimidation,” id. (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)) (quotation marks omitted).
The Sixth Circuit Court of Appeals has stated it “reviewed numerous cases from other circuits in an attempt to discern the meaning of [persecution] within the context of the INA,” and explained it “look[s] to the overall context of the applicant’s situation to ascertain whether the applicant has been subjected to persecution within the meaning of the INA so as to give rise to a presumption of a well-founded fear of future persecution.” Gilaj v. Gonzales, 408 F.3d 275, 284 (6th Cir. 2005).
The court elaborated:
The conduct on which the application for asylum is based must go beyond what might reasonably be characterized as mere harassment in order to rise to the level of persecution. It is equally clear that the characterization of conduct as persecution does not necessarily turn on the severity of the conduct itself or on the frequency of the alleged incidents. Indeed, courts have held that even a single incident may be sufficient to establish past persecution. Rather, the critical factor is the overall context in which the harmful conduct occurred. It is not sufficient that the applicant has been subjected to indiscriminate abuse, such as physical force or violence employed against a crowd of demonstrators, or has been the victim of a random crime. Instead, the applicant must establish that he or she was specifically targeted by the government for abuse based on one of the statutorily protected grounds. If the applicant can make this showing, then the court should consider whether the applicant was subjected to physical harm and suffering or simply verbal threats and intimidation, and the gravity of the circumstances presented.
Id. at 285 (citing Corado v. Ashcroft, 384 F.3d 945, 947-48 (8th Cir. 2004); Guo v. Ashcroft, 361 F.3d 1194, 1203-04 (9th Cir. 2004); Asani v. INS, 154 F.3d 719, 723-24 (7th Cir. 1998)).
The court also more recently recalled that “while physical abuse is not an absolute prerequisite to a finding of persecution, threats alone are only sufficient when they are of a most immediate and menacing nature.” Antonio v. Barr, 959 F.3d 778, 793 (6th Cir. 2020) (quoting Japarkulova v. Holder, 615 F.3d 696, 699 (6th Cir. 2010)) (quotation marks omitted). The court has also provided, “by way of example . . . actions that might cross the line from harassment to persecution[, which] include: detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.” Japarkulova v. Holder, 615 F.3d 696, 699 (6th Cir. 2010) (quoting Gilaj, 408 F.3d at 285) (quotation marks omitted).
As a caveat to these examples, the court has noted: “Harm need not be life-threatening to constitute persecution. In some cases, an applicant need not prove physical harm at all.” Haider v. Holder, 595 F.3d 276, 286 (6th Cir. 2010) (citing Ouda v. INS, 324 F.3d 445, 454 (6th Cir. 2003)).
While other circuit courts have referred to the B.I.A.’s approach when defining persecution—see, e.g., Fatin v. I.N.S, 12 F.3d 1233, 1240-41 (3d Cir. 1993) (relying on Matter of Acosta, 19 I&N Dec. 211 (B.I.A. 1985)); Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (relying on Matter of Laipenieks, 18 I. N. Dec. 433, 456-57 (B.I.A. 1983))—the Seventh Circuit Court of Appeals has discounted those findings, stating “[n]either the parties’ research nor our own has brought to light a case in which the B.I.A. has defined persecution,” Sahi v. Gonzales, 416 F.3d 587, 588-89 (7th Cir. 2005). Instead, the Seventh Circuit court found “the Board had not attempted to define ‘persecution’ itself,” id.3 4. See also Haile v. Gonzales, 421 F.3d 493, 496 (7th Cir. 2005) (“The meaning of ‘persecution’ in immigration law remains ill-defined, and primary responsibility for determining that meaning lies with the Board of Immigration Appeals, which to our knowledge has not addressed this question.”) (citation omitted).
In another opinion, the court articulated its definition of persecution as the “punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.” Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000) (quoting Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995); De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir. 1993)). See also Sivaainkaran v. INS, 972 F.2d 161, 165 n.2 (7th Cir. 1992) (“Persecution is not defined in the Act, but we have described it as punishment or the infliction of harm for political, religious, or other reasons that are offensive.”) (internal citations and quotations omitted). According to the court, “persecution encompasses more than threats to life or freedom; non-life threatening violence and physical abuse also fall within this category.” Tamas-Mercea, 222 F.3d at 424. But such actions “must rise above the level of mere harassment to constitute persecution.” Id. (quoting Sofinet v. INS, 196 F.3d 742, 746 (7th Cir. 1999) (internal quotation marks omitted).
To further contrast between harassment and persecution, the court described “acts that may constitute persecution: ‘detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, torture, behavior that threatens the same, and non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe[.]”” Diallo v. Ashcroft, 381 F.3d 687, 697 (7th Cir. 2004) (quoting Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004)).
But the Seventh Circuit court also has explained that persecution does not need to entail physical harm:
Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.
Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011).
To further distinguish between persecution and less severe forms of harm, that court added: “The line between harassment and persecution is the line between the nasty and the barbaric, or alternatively between wishing you were living in another country and being so desperate that you flee without any assurance of being given refuge in any other country.” Id.
Finally, in an earlier opinion, the court connected its definitions to the INA’s legislative history, as well as to earlier statutes and international sources:
Although the term is not defined in the Immigration and Nationality Act, it is explained in its legislative history. The House Judiciary Committee noted that in light of the “substantial body of precedent,” there was no need to define the phrase “persecution because of race, religion, national origin or political opinion.” H.R. Rep. No. 95-1452, 95th Cong., 2d Sess., at 6 (1978), U.S. Code Cong. Admin.News 1978, at 4700, 4705. The precedent referred to by the Committee includes the Displaced Persons Act, the Refugee Relief Act of 1953, other provisions of the Immigration and Nationality Act (see §§ 1153(a)(7) and 1253(h)), international agreements, and opinions of the Nurnberg tribunals. Id. at 2-3, 4-7. According to the Committee, the general standard of persecution is “the infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive ( e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments.” Id. at 5, U.S. Code Cong. Admin. News 1978, at 4704.
Schellong v. INS, 805 F.2d 655, 661-62 (7th Cir. 1986).
The Eighth Circuit Court of Appeals has stated: “In the absence of a statutory definition, [the] court [defines] persecution as ‘the infliction or threat of death, torture, or injury to one’s person or freedom, on account of race, religion, nationality, membership in a particular social group, or political opinion.'” Ngure v. Ashcroft, 367 F.3d 975, 990 (8th Cir. 2004) (quoting Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002)). In another case, the court explained the threat of harm must be “credible.” See Al Yatim v. Mukasey, 531 F.3d 584, 587 (8th Cir. 2008) (“Persecution includes the credible threat of death, torture, or injury to one’s person or liberty on account of a protected ground.”).
On extent of harm, the Eighth Circuit court has stated “persecution is an extreme concept that does not include low-level intimidation and harassment.” Lopez-Amador v. Holder, 649 F.3d 880, 884 (8th Cir. 2011). “Absent physical harm, the incidents of harassment, unfulfilled threats of injury, and economic deprivation are not persecution.” Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th Cir. 2007). See also, e.g., Ngure, 367 F.3d at 990 (8th Cir. 2004) (isolated violence does not compel a finding of persecution); Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir. 2004) (brief detention is not necessarily persecution).
But the court caveats: “[Its] definition of persecution is not that narrow.” Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007). Instead, the court views persecution as “a fluid concept that does not necessarily require the applicant to prove that his life or freedom has been or will be directly jeopardized.” Bellido v. Ashcroft, 367 F.3d 840, 843 (8th Cir. 2004).
The Ninth Circuit Court of Appeals recently affirmed it “define[s] persecution as ‘the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.'” Aden v. Wilkinson, 989 F.3d 1073, 1082-83 (9th Cir. 2021). Persecution, according to that court, is “an extreme concept that does not include every sort of treatment our society regards as offensive.” Id. (citation omitted). “The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment she received rises to the level of persecution.” Id. (citing Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998)).
That recent Aden court also elaborated on the nature of harm necessary for such harm to be considered persecution: While the court “recognized that a one-off physical beating did not compel a finding of persecution,” Aden, 989 F.3d at 1082-83, “when the incidents have involved physical harm plus something more, such as credible death threats, [it] ha[s] not hesitated to conclude that the petitioner suffered persecution.” Id. See also Smolniakova v. Gonzales, 422 F.3d 1037, 1049 (9th Cir. 2005) (“Repeated death threats, especially when those threats occurred in conjunction with other forms of abuse, require a finding of past persecution.”); Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (recognizing that death threats were sufficient to establish persecution).
The court further explained: “What matters, in assessing the sufficiency of the threat to establish persecution, is whether the group making the threat has the will or the ability to carry it out—not whether it is, in fact, carried out.” Aden, 989 F.3d at 1083 (internal quotations and citations omitted). “Another important consideration is whether the threat leaves the person with no realistic choice but to conform to the persecutor’s way of life and forsake other political or religious beliefs, or flee.” Id. (citing Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (“A credible threat that causes a person to abandon lawful political or religious associations or beliefs is persecution.”)). And the court has explained in several cases that it considers the cumulative effects of harm. See, e.g., Smolniakova, 422 F.3d at 1049 (9th Cir. 2005) (“Even if a single incident does not rise to the level of persecution, the cumulative effect of these several incidents constitutes persecution.”); Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998)
Finally, the Ninth Circuit court also has recognized “that, in light of [its] general definition, persecution can come in many forms, including physical, economic, and emotional harm.” Mendoza-Pablo v. Holder, 667 F.3d 1308, 1313 (9th Cir. 2012) (citing Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004) (quotation marks omitted)).
The Tenth Circuit Court of Appeals defines persecution as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive, and requires more than just restrictions or threats to life and liberty.” Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005) (internal quotation marks omitted).
The Tenth Circuit court has not discussed its definition of persecution in published opinions as proliferately as other circuit courts. But in one unpublished opinion, the court recognized its definition as setting a “high bar”:
We have established a high bar for the definition of persecution. In Sidabutar, we concluded an Indonesian Christian who was seriously injured and repeatedly beaten by classmates, who was often robbed, and who once had his motorcycle burned by a mob had not been persecuted. Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007). Similarly, we have not found persecution in cases where an alien was robbed and sexually assaulted and suffered a head injury, Tulengkey v. Gonzales, 425 F.3d 1277, 1281 (10th Cir. 2005), or where an alien was “constantly harassed,” twice detained for two day stints involving beatings and interrogation, and conscripted into the army, Kapcia v. INS, 944 F.2d 702, 704-05, 708 (10th Cir. 1991). In Vicente-Elias v. Mukasey, we held that “potential job loss, generalized economic disadvantage, and social discrimination,” without more, is not persecution. 532 F.3d 1086, 1090-91 (10th Cir. 2008). In contrast, we found persecution for an alien who suffered a severe beating and ten-month imprisonment on account of his political opinion in Nazaraghaie v. INS, 102 F.3d 460, 463-64 (10th Cir. 1996).
Escamilla v. Holder, No. 11-9510 (10th Cir. Mar. 9, 2012).
The Eleventh Circuit Court of Appeals also has emphasized the “extreme” nature of harm needed to constitute persecution. In Kazemzadeh v. U.S. Att’y. Gen., 577 F.3d 1341 (11th Cir. 2009), the court explained:
“‘[P]ersecution’ is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and . . . mere harassment does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotation marks omitted). Minor physical abuse and brief detentions do not amount to persecution. In Djonda v. U.S. Atty Gen., 514 F.3d 1168, 1171, 1174 (11th Cir. 2008), for example, we ruled that evidence that an alien had been detained for 36 hours, beaten by police officers, and suffered only scratches and bruises did not compel a finding that the alien had been persecuted. In Zheng v. U.S. Att’y. Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2006), we ruled that evidence that an alien had been detained for five days, forced to watch reeducation videos, stand in the sun for two hours, and sign a pledge to no longer practice his religion also did not compel a finding that the alien had been persecuted.
Kazemzadeh, 577 F.3d at 1353.
In another case, however, the court recognized persecution even where the record showed “no significant physical attacks,” yet the respondent was able to demonstrate “extreme” or “severe” mistreatment:
We think that these events, taken together, constitute extreme mistreatment. In so concluding, we reject the government’s contention that Santamaria did not endure past persecution because the record reflects “no significant physical attacks.” (Resp. at 15 n. 8.) Even if Santamaria’s physical injuries were relatively minor, we have not required serious physical injury where the petitioner demonstrates repeated threats combined with other forms of severe mistreatment. E.g., Ruiz v. Gonzales, 479 F.3d 762, 766, n. 2 (kidnapping); Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d at 1233 (attempted murder); Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1255 (11th Cir. 2007) (assault with firearms resulting in a broken nose). Santamaria suffered the trauma of repeated death threats, two physical attacks, the murder of a family friend, and a kidnapping cut short only by a harrowing escape. These acts are sufficiently extreme to constitute persecution.
De Santamaria v. U.S. Att’y. Gen., 525 F.3d 999, 1010 (11th Cir. 2008).
In general, the D.C. Circuit Court of Appeals has not decided as many cases on persecution in the context of asylum compared to other circuit courts. Within its cases, the D.C. Circuit court has not discussed the definition of persecution, or the extent of harm required for an act to be considered persecutory. But as in the other circuits, the D.C. court recognizes, under the INA, that “[a]n alien who has suffered past persecution or who has a ‘well-founded fear’ of being persecuted in the future is eligible for asylum,” Gutierrez-Rogue v. I.N.S., 954 F.2d 769, 771 (D.C. Cir. 1992). Cf. Grace v. Barr, 965 F.3d 883, 889 (D.C. Cir. 2020) (“Under longstanding administrative and judicial precedent, the term ‘persecution,’ undefined in the INA, encompasses harm inflicted by non-state actors[.]” ); Am. Immigration Law Ass’n v. Reno, 199 F.3d 1352, 1355 (D.C. Cir. 2000) (“The [IIRIRA] exempts from immediate removal aliens who ‘indicate either an intention to apply for asylum . . . or a fear of persecution.'”) (internal quotations and citations omitted).
1: Accord Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir. 2007); Mei Fun Wong v. Holder, 633 F.3d 64, 71-72 (2d Cir. 2011); Gomez-Zuluaga v. Att’y. Gen. U.S., 527 F.3d 330, 341 (3d Cir. 2008); Abdel-Rahman v. Gonzales, 493 F.3d 444, 449 n.9 (4th Cir. 2007); Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006); Gilaj v. Gonzales, 408 F.3d 275, 284-85 (6th Cir. 2005); Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000); Bellido v. Ashcroft, 367 F.3d 840, 843 (8th Cir. 2004); Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir. 2004); Niang v. Gonzales, 422 F.3d 1187, 1197 (10th Cir. 2005); Kazemzadeh v. U.S. Att’y. Gen., 577 F.3d 1341, 1357 (11th Cir. 2009); Grace v. Barr, 965 F.3d 883, 889 (D.C. Cir. 2020).
2: See Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000); Begzatowski v. I.N.S, 278 F.3d 665, 669 (7th Cir. 2002) (“We are mindful that the primary responsibility for defining persecution , including the amount of harm that distinguishes it from infliction of the lesser harms that we have called harassment and discrimination, is the Board’s rather than the courts. But it is a responsibility that the Board has abandoned to the courts.”) (internal citations and quotation marks omitted).
3: The court in that opinion added: “[The B.I.A.] has also said that ‘persecution’ does not include ‘all treatment that society regards as unfair, unjust, or even unlawful or unconstitutional,’ but has not said what it does include.” Id. (quoting In re V-T-S, 21 I. N. Dec. 792, 798 (B.I.A. 1997)). See also Balazoski v. I.N.S, 932 F.2d 638, 641-42 (7th Cir. 1991) (“Congress did not define persecution in the INA, nor did the United Nations in the international conventions and protocols that provided the backdrop for congressional asylum legislation and which have thus informed the judiciary’s interpretation of § 208.”).
4: See also Marquez v. INS, 105 F.3d 374, 379 (7th Cir. 1997) (“Within these vague contours, neither our case law nor the B.I.A. offers much guidance for sorting out asylum applicants. The prevailing approach is, perhaps unfortunately, largely ad hoc.”).