Presumption of Future Persecution Based on Past Persecution

III. What Counts as “Past Persecution”?

“Persecution” is not defined in the statute, but BIA and circuit precedent draw some lines. It must involve serious harm, inflicted by the government or by private actors the government is unable or unwilling to control, and be “on account of” a protected ground.

A. Serious Physical Violence and Detention

Repeated beatings, torture, or severe physical abuse almost always qualify.

• Multiple beatings and arrests for political activity or ethnicity have been held sufficient. See, e.g., Bace v. Ashcroft, 352 F.3d 1133 (7th Cir. 2003).

• Prolonged detention with physical abuse or credible death threats clearly meets the threshold.

B. Sexual Violence and Gender-Based Harm

Courts treat rape and sexual assault as paradigmatic persecution.

• Female genital mutilation (FGM) and threats of FGM are classic examples. See Matter of Kasinga, 21 I. & N. Dec. 357 (B.I.A. 1996); Matter of A-T-, 24 I. & N. Dec. 296 (B.I.A. 2007).

• Repeated sexual assaults, threats of rape, and stripping or molestation in detention or during attacks have been recognized as persecution in multiple circuits. See, e.g., Visca Imelda v. U.S. Att’y Gen., 611 F.3d 724 (11th Cir. 2010).

C. Severe Psychological Harm and Threats

Serious death threats plus other forms of harm can rise to persecution. Courts look at the cumulative impact.

• Krastev v. INS, 292 F.3d 1268 (10th Cir. 2002) (reversing BIA where threats, assaults, and economic pressure together met the standard).

• Mukamusoni v. Ashcroft, 390 F.3d 110 (1st Cir. 2004) (past persecution found where Rwandan applicant suffered extreme trauma and loss of family during the genocide).

Threats alone are usually not enough unless extraordinarily menacing and immediate (e.g., repeated, credible threats from actors with a demonstrated capacity and intent to carry them out).

D. Targeted Economic Harm and Extortion

Economic mistreatment can constitute persecution when it is deliberate, targeted, and severe.

• Confiscation of property, exclusion from employment, or extortion that deprives an applicant of a livelihood because of a protected ground can qualify. See, e.g., Kozulin v. INS, 218 F.3d 1112 (9th Cir. 2000).

Mere “economic disadvantage” or generalized poverty does not.

E. Persecution by Non-State Actors

Harms inflicted by militias, gangs, family members, or other non-state actors may still be persecution if the state is unable or unwilling to control them.

• The Ninth Circuit’s formulation is influential: authorities may be “powerless to stop” private persecutors because of lack of capacity or pervasiveness of the persecution. Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010), overruled on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc).

• The Eleventh Circuit has likewise emphasized careful analysis of whether police response was meaningful or merely pro forma. Imelda, 611 F.3d at 728–29.

F. Domestic and Family-Based Violence

Where the government systematically fails to protect victims of domestic violence, honor crimes, or forced marriage, courts have recognized persecution.

• Kone v. Holder, 620 F.3d 760 (7th Cir. 2010) (addressing FGM of children and derivative harms to parents).

• Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014) (domestic violence; subsequently limited but not wholly erased by later AG/BIA actions).

G. Pattern or Practice and Group-Based Persecution

Applicants can prove past persecution either through their own direct experience or by showing they were subjected to a pattern or practice of persecution targeting a protected group. Pattern-or-practice findings have been made for groups like ethnic Chinese Christians in parts of Indonesia and certain political dissident populations. See, e.g., Visca Imelda, 611 F.3d 724; Tegegn v. Holder, 702 F.3d 1142 (8th Cir. 2013).

H. Persecution Experienced Through a Close Family Member

Harm inflicted on a spouse, child, parent, or similarly close family member can constitute persecution of the applicant when:

1. the persecutors targeted the family member because of a protected characteristic shared with the applicant,

2. the harm to the family member was intended—directly or indirectly—to coerce, punish, intimidate, or retaliate against the applicant, or

3. the cumulative impact of severe harm to a family member causes the applicant to suffer serious emotional, psychological, or societal harm that rises to the level of persecution.

Courts have repeatedly recognized that persecution is not limited to direct physical harm against the applicant. The inquiry is functional: whether the persecutor’s actions, taken as a whole, amount to persecution of the applicant.

Key principles reflected in controlling case law:

• Targeted harm to a family member can support the applicant’s own past-persecution claim when it is part of the same pattern of targeting, motive, or retaliation.
  Solomon v. Gonzales, 454 F.3d 1160, 1163–65 (10th Cir. 2006) (threats, political targeting, and disappearance of applicant’s brother supported applicant’s own persecution claim where the family was collectively targeted).

• Where the persecutor’s actions are intended to punish or pressure the applicant by harming relatives, the applicant is deemed the true target of the persecution.
  Courts consider the persecutor’s intent and whether the harms were “functionally equivalent” to harming the applicant.

• Family-tied persecution is particularly persuasive in political-opinion, ethnicity, clan, or caste cases, because persecutors often treat the family as a single political, ethnic, or ideological unit.
  This is especially so where clans, tribes, political parties, or militias use collective punishment or retaliatory violence—practices repeatedly recognized in cases such as Ndom v. Ashcroft, 384 F.3d 743 (9th Cir. 2004), where harm to multiple family members demonstrated the group-based nature of the persecution.

• Severe harm to a close family member can contribute to a “cumulative harm” finding, elevating the applicant’s own experiences from harassment to persecution.
  Federal courts routinely evaluate persecution as a totality, not incident by incident.
  See, e.g., Krastev v. INS, 292 F.3d 1268, 1275–77 (10th Cir. 2002) (cumulative acts, including harm to family, must be considered together).

• The state’s inability or unwillingness to protect the applicant may be inferred through its failure to protect the family, particularly in cases involving politically targeted killings, clan-based reprisals, or gender-based violence.
  Where the government fails to protect one family member, courts often conclude it will not protect another.

In practice, persecution of close relatives is most likely to satisfy the past-persecution standard when:

• the family member’s harm was severe (e.g., killing, kidnapping, torture, rape),

• the family was targeted for the same protected reason as the applicant,

• the applicant witnessed or was directly impacted by the harm, and

• the persecutor’s motive or messaging explicitly implicated the applicant (e.g., “your family will pay,” “this is what happens to people like you,” etc.).

Strategic Note:
When building the record, practitioners should document:

• the applicant’s relationship to the harmed family member,

• the persecutor’s motive and statements,

• the broader pattern of family-targeted persecution in the region or conflict, and

• the applicant’s resulting psychological harm.

Courts treat this as compelling evidence of persecution—especially in countries where political factions, extremist militias, or clans use family-based reprisals as a primary tool of social control.