Learned Professionals as Refugees?

Refugees & Asylum Law Essay:-

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The Case for Adding Fear of Persecution On Account of Learned Profession to the Definition of Refugee in the Immigration and Nationality Act

Table of Contents

Introduction………………………………………………………………………

Hypothetical: Story of Dr Ali Mo…………………………………
Discussion Overview………………………………………..………….

The Goal of Refugee and Asylum Law: Implication of Economic Persecution….

Brief Legislative History on International Definition of Refugee………..
Brief Legislative History on Definition of Refugee in the United States…

Protection as a Refugee in the United States: Economic Persecution Basis……

Brief Overview of a Refugee’s Path to United States Citizenship……
Elements of the Refugee Definition…………………………………………

Economic Persecution “On Account of Learned Profession”……….…………

Definition of Learned Profession……………………………………………
Persecution as Economic Deprivation impacts Learned Professionals..
Response to Counterarguments……………………………………………..

Conclusion……………………………………………………………………………..

Introduction

A. Hypothetical: Story of Dr. Ali Mo

Dr. Ali Mo had so many emotions running through his mind as the interpreter explained his story in English to the immigration judge. For Dr. Mo, the fear of what his life as a doctor would be like if he were returned to Iraq was the fastest emotion running through his mind throughout his asylum-seeker hearing. As he watched the immigration judge’s reactions, he thought to himself: How will I take care of my family? How can I make a living if I’m not even sure I can stay alive? Why did this hearing have to be scheduled in March?

It was a slow Friday afternoon at the Dallas immigration center as Dr. Mo’s asylum-seeker hearing transpired. The hearing, held on March 16, 2008, was to determine whether Dr. Mo could successfully defend against deportation from the United States back to Iraq. For him to succeed, he had to demonstrate that he was a “refugee” within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act (“INA”),[1] which would then allow him to be placed in a position to be granted asylum. Dr. Mo’s attorney, who was also in attendance at the hearing, was confident that the unique facts of Dr. Mo’s story would qualify him as a “refugee”. Dr. Mo wasn’t so sure especially considering that over the last few years, the month of March had not been kind to him.

Dr. Mo’s story as an asylum-seeker began on March 18, 2006 in Baghdad, two years before the hearing in Dallas. It was an unusually quiet Saturday evening just off the shores of the Tigris River in central Iraq, but the smell of unrest was in the air. Most of the city’s clinics were closed, some temporarily because of the weekend, and others permanently as a result of three years of war.[2] Dr. Mo, a hardworking cardiologist, was seeing one of his patients when a group of masked men stormed into his clinic and shot his receptionist multiple times.[3] When he came out to the reception area to investigate the ruckus, he saw that the men were pouring kerosene on the floor of his clinic in preparation to set the place on fire. As Dr. Mo ran up to them, they pointed their guns at him and ordered him to come with them. They said they were taking him to the Interior Minister. He replied that he knew the minister and would like to call him to see if all of this was necessary. As he reached for the phone on the receptionist’s desk, one of the men pistol-whipped him to the ground and pulled him outside of his clinic. Just before the men got him to their car which was clearly marked as a government vehicle, some shots rang out and one of the men fell to the floor. The other men immediately ran over to their fallen comrade and started trying to lift him into the car, and just at that moment, Dr. Mo broke away and ran back into his clinic.

It was not clear where the shots had come from but one thing that was clear was that the masked men gave up their attempt to kidnap Dr. Mo on that particular occasion. Although Dr. Mo’s life was spared that night, the head wound he suffered from the attack kept him bedridden for weeks. Some of his colleagues were not as lucky. That year alone, over 300 doctors associated with schools and clinics in Baghdad and the surrounding areas were murdered.[4] Many Iraqis viewed these murders as solely based on a calculated campaign to destroy the nation’s best professional minds. Dr. Mo shared this view, especially considering that prior to the attack of his clinic, he had never been into politics and he counted people of different tribes and political stripes as friends and patients alike.

Upon recovering from his head wound, Dr. Mo pressed on with his practice in Baghdad against the advice of several of his colleagues. He assured them that he would arrange the necessary security detail to keep him and his family safe. In spite of the heightened security around his clinic, there were still numerous attempts on his life which finally resulted in the death of his personal security guard in late 2006. This was around the time Dr. Mo left Iraq and arrived in the United States, specifically Dallas Fort Worth International Airport, with no entrance documents. He passed the “credible fear” screening,[5] which allowed him to remain in the Dallas area and apply for asylum. Unfortunately, the challenge of putting his life back together proved too time consuming and Dr. Mo never got around to applying for asylum until he was hit with the removal action that was at the crux of his asylum-seeker hearing.

As the immigration judge listened to Dr. Mo’s interpreter tell his story, she grew increasingly impatient. Finally, she cut the interpreter off. She concluded that Dr. Mo’s story did not meet the statutory requirement of a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. In effect, she denied asylum to him. Like he suspected, this particular day in March was not kind to him at all. Although Dr. Mo and his attorney appealed the immigration judge’s decision to the Board of Immigration Appeals (BIA), the BIA affirmed the decision. After the BIA’s ruling, the deportation process that eventually sent Dr. Mo back to Iraq was immediately activated.

Upon returning to Iraq, Dr. Mo’s life as a doctor was reduced to an exercise in fear management. For a man of his stature, this was a life of little dignity. A few days before the March 7, 2010 elections in Iraq,[6] Dr. Mo was killed by a suicide bomber who detonated explosives in a hospital emergency ward that he was volunteering in. The hospital had employed Dr. Mo as a volunteer since he was so afraid and reluctant to reestablish his own clinic. Dr. Mo’s choice to become a doctor in Iraq cost him his livelihood and ultimately his life.

For the sake of Dr. Mo and others similarly situated, is it time for the United States (“US”) Congress to update the statutory definition of “refugee” to include persecution or well-founded fear of persecution on account of one’s learned profession?

B. Discussion Overview

In order to answer the question of whether the INA definition of refugee should be updated to include persecution or well-founded fear of persecution on account of one’s learned profession, this discussion will focus on three points: first, the goal of refugee and asylum law and its implication of economic persecution; second, the state of refugee and asylum law in the US with regard to economic persecution and the nexus factors of political opinion and social group; and third, how the INA definition can be adjusted to deal with economic persecution in the form of economic deprivation on account of one’s learned profession.

I. The Goal of Refugee and Asylum Law Implies That Economic Persecution Can Be Basis for Seeking Protection as a Refugee

The overarching principle in refugee and asylum law can be summed up as the international commitment to protect an individual when his or her[7] own state cannot offer such protection. If refugee and asylum law are branches in the tree of international human rights, then dignity is at the root of that tree. In essence, protecting an individual requires providing that individual with an environment in which he or she is able to secure his or her dignity.

A. Brief Legislative History on International Definition of Refugee

Dignity is at the core of the individualist perspective[8] on international refugee protection. Under the individualist perspective, the refugee is a person that finds a perceived injustice in his home state as incompatible with his individualized search for personal freedom and as a result seeks protection from the international community.[9] This perspective is what gave way to the United Nations (“UN”) Convention Definition of Refugee Status in 1951.[10] Although some states pushed back against this individualist perspective on refugee definition, their issue with the perspective was of a political and not economic nature. States such as Iraq, Turkey, Yugoslavia, and Venezuela were concerned that conceptualizing the definition of refugee around subjective characteristics of an individual would allow people who were simply enemies of their home state but had suffered no personal prejudice to seek protection.[11]

In 1951, a negotiation was struck among all of the UN member states represented to define refugee status along both subjective and objective standards. The Convention was drafted between 1948 and 1951 by a collection of UN organs, committees, and a conference of plenipotentiaries. According to the Convention, a refugee is any person who

…having been persecuted as a result of events occurring before January 1, 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.[12]

Under the Convention’s guidelines, the examiner of refugee status first asks the subjective question: “Does the asylum-seeker fear persecution?” and then asks the more objective question: “Is the asylum-seeker’s fear of persecution well-founded?”

The gravity of the Convention’s refugee definition with its two-part focus on subjective and objective standards weighed in favor of Western states such as the United States and the United Kingdom. The definition gave protection preference to individuals whose departure from their home country was inspired by pro-Western values such as democracy, individual liberties, access to good education, and capitalism.

In 1967, the influence of the Western states on the UN led to an expansion of the Convention’s definition of refugee that was buttressed by the individualist perspective. The Protocol on the Status of Refugees expanded the scope of the Convention’s definition to include refugees from all regions of the world. This definitional expansion eliminated the requirement that a persecution claim relate to an event that occurred before 1951.[13] Non-Western states were able to moderate the Protocol’s expanded definition of refugee by insisting that the Convention-based protection mainly apply to persons whose departure from their home country is triggered by a fear of persecution in terms of civil or political status, and not due to a preference for one nation’s economic values over another.[14] Western states agreed to this particular moderation of the Protocol’s expanded definition of refugee. Although the moderation had the potential to discourage pro-Western individuals from seeking asylum; nevertheless, it also had the potential to lighten the burden Western states faced in granting asylum to an expanded base of individuals.

The Protocol did keep intact the recognition that “fear” is a subjective condition.[15] In effect, the Protocol did not dismiss the notion that an individual’s fear of economic persecution can qualify him for refugee protection. The agreement between the Western and Non-Western states only limited economic persecution within two contexts: one, an enemy or critic of a state’s economic policies does not automatically qualify as a refugee; and two, a broadly based economic disaster that affects a large group of people does not automatically qualify the members of that large group as refugees. The Convention and Protocol definition rejected large group determination of refugee status.[16] From 1966 to 1985, the individualist perspective on refugee status influenced courts in the US and in other parts of the world to view economic deprivation as a threat to an individual’s civil or political welfare and thus as a justification for legal intervention.[17] In 1986, the UN validated this view and affirmed the connection between economic deprivation and civil and political status when it stated that

        All human rights and fundamental freedoms are indivisible and

interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic,

social and cultural rights.[18]

The 1951 Convention itself, which laid the foundation for refugee definition, underscored the connection between the economic security and political status of refugees. The Preamble of the Convention expressed the UN’s intent that human beings be assured “the widest possible exercise” of fundamental rights and personal freedom without discrimination.[19] And Chapter III of the Convention, titled Gainful Employment, directs all member states to honor the right of a refugee to “engage in wage-earning employment” and demands that restrictive measures imposed on aliens or the employment of aliens not be applied to refugees.[20]

As of September 2010, the internationally accepted standard for the definition of refugee maintains the individualist approach of the 1951 Convention. Dignity, especially when viewed through the Western lens of individual liberty, is at the center of this individualist approach. The history on the international definition of refugee demonstrates that the protection of the individual necessitates giving him the ability to secure his dignity. “Dignity is a human right” declared the President of the Unites States, Barack Obama, in his speech to the UN General Assembly on September 23, 2010.[21]

B. Brief Legislative History on Definition of Refugee in the United States

The US Congress intended to harmonize the Immigration and Nationality Act (“INA”) of 1952 with the 1951 UN Convention and 1967 Protocol on the Status of Refugees. Congress accomplished this through the Refugee Act of 1980.[22] Prior to 1980, domestic laws in the US contained provisions designed to protect specific individuals fearing persecution; but there was a debate as to the scope and application of certain phrases like “fear of persecution” and “physical persecution” found in some of these laws.[23]

For example, under section 243(h) of the INA,[24] a person could apply for temporary stay of deportation; but before 1965, the Attorney General could only grant such a stay if the person showed that there was a probability that he would face “physical persecution” if deported. It was unclear what type of persecution would qualify as “physical”. In 1965, section 243(h) was amended and the word “physical” was deleted.[25] Congressman Michael Feighan, chairman of the House Committee that proposed the amendment, stated that physical persecution was too narrow because it would not encompass a situation where a refugee was “reduced to the lowest stage of his ability to work, and thereby depriv[ed] of opportunity of providing for himself and his family”.[26]

The Refugee Act of 1980 helped to quiet some of the debate with regard to the scope and application of certain refugee law concepts. The Act permitted individuals within the US and at the US border to apply for asylum or restriction on removal. Most notably, the Act brought the US into compliance with the 1967 Protocol to which the US had acceded in 1968.[27] Asylum-seekers were required to meet the qualifications of the UN Convention definition of refugee which was incorporated in the Protocol. The Act followed in the individualist perspective tradition and rejected a broad, group-based view of refugee,[28] and instead couched persecution as a threat to an individual’s life, livelihood, or personal freedom.[29]

II. Protection as a Refugee in the United States Can Be Based on Economic Persecution

Understanding the state of refugee and asylum law in the United States requires a brief overview of how a refugee becomes a US citizen; how US courts have interpreted elements of the refugee definition; and how the “persecution” element of the refugee definition fits within the context of economic deprivation.

A. Brief Overview of a Refugee’s Path to becoming a United States Citizen

As of October 2010, a foreign national’s refugee status in the US or US border is evaluated in three primary settings: one, an admission to the US as a refugee under INA §207[30] after determination of the foreign national’s[31] status abroad; two, an affirmative application for asylum under INA §208(b)(1)(A);[32] and three, a defensive application to prevent removal after entry. As an illustration, Dr. Mo’s asylum-seeker hearing described earlier was based on this third setting. The rationale behind a defensive application is that once a foreign national meets the statutory definition of refugee and is then granted asylum, he can prevent his removal from the United States according to INA §208(b)(2)(C).[33]

After being granted asylum, many refugees get on the track to becoming US citizens. An alien must wait for at least one year after becoming an asylee or being admitted as a refugee before obtaining the status of a permanent resident in the US according to INA §209(a)(1)(B)[34] and §209(b)(2).[35] After obtaining permanent resident status, the now lawful permanent resident must maintain that status for five years before becoming naturalized as a US citizen relative to INA §316(a).[36] All in all, the law, as of October 2010, recognizes the steps described above as part of the process of a foreign national’s adjustment of status in the US.

B. Elements of the Refugee Definition

The plain language of INA §101(a)(42)(A) shows that the definition of refugee can be broken down into five threshold questions: 1) Is the individual outside his country of nationality i.e. home country? 2) Is the individual unable or unwilling to return to his home country? 3) Has the individual been persecuted or does the individual have a well founded fear of persecution in his home country? 4) Is such persecution or well-founded fear of such persecution on account of the individual’s race, religion, nationality, political opinion, or membership in a particular social group? 5) Are there any exclusionary or inclusionary circumstances that should be taken into account in determining the individual’s refugee status? In analyzing a foreign national’s refugee status during a defensive application to forestall removal from the US, the BIA and the federal circuit courts of appeal (“federal courts”) have focused more on the third and fourth threshold questions.[37]

The third threshold question looks at whether the individual has been persecuted or has a well founded fear of persecution in his home country. In analyzing this threshold question, the BIA and the federal courts consider factors such as past persecution,[38] who the persecutor is,[39] and whether the individual was singled out.[40] In Matter of Acosta, the BIA emphasized that for an alien to qualify for the statutory definition of a refugee, he must have been persecuted or have a well-founded fear of persecution.[41] The BIA construed the term “persecution” as having a two-part dimension: one, a “harm or suffering inflicted upon an individual in order to punish him for possessing a characteristic the persecutor sought to overcome”; and two, such “harm or suffering is inflicted by the government of a country or person or an organization that the government is unable or unwilling to control”.[42]

The alien in Matter of Acosta, formerly a taxi driver and manager of a taxi drivers’ cooperative in El Salvador, made a defensive application for asylum to prevent his removal from the US on a claim that he had been persecuted by a group that opposed the El Salvadoran government.[43] In describing the content of the persecution he faced, the taxi driver testified that the anti-government group requested that he and other taxi drivers stop working in order to damage El Salvador’s transportation industry; moreover the group threatened him and killed members of his cooperative.[44] In addition, the taxi driver said that there were some in the government of El Salvador who viewed his cooperative in a negative light because they saw it as being too socialistic.[45] The BIA ruled that his personal experiences did not amount to persecution.[46]

As to the inquiry into a well founded fear of persecution, the BIA looked at both the subjective and objective ingredients of the persecution that the taxi driver may face if returned to El Salvador. Specifically, the BIA examined four things: whether 1) the taxi driver possesses characteristics the government or the anti-government group seek to overcome by means of punishment; 2) the government or the anti-government group are aware or could easily[47] become aware that the taxi driver possesses such characteristics; 3) the government or the anti-government group have the capability of punishing the taxi driver; and 4) the government and the anti-government group are inclined to punish him. In his testimony, the taxi driver stated that the anti-government group was no longer active and if deported he would actually not work as a taxi driver.[48] As a result of this testimony, the BIA ruled that the taxi driver did not have a well founded fear of persecution.[49]

If the individual is able to meet his burden of showing past persecution or a well-founded fear of persecution, the BIA and the federal courts examine whether such persecution was on account of one of the statute’s enumerated nexus factors: race, religion, nationality, political opinion, or membership in a particular social group. This is the fourth threshold question and it looks at the connection between the persecution of the individual and a fundamental right that the individual should be allowed to exercise. The nexus factors of political opinion and membership in a social group are particularly pertinent to our discussion on economic deprivation.

In analyzing the political opinion factor, the BIA and the courts do not necessarily look at the political views held by the persecutor. The focus is on the political dispositions of the alien which usually include opinions different from the Government or a group that the government is unwilling or unable to control.[50] In addition, the focus can also be on whether the alien’s persecutor was imputing certain political opinions to the alien i.e. a political opinion that he does not necessarily hold but that his persecutors believes that he holds.[51] There is some vagueness as to what actually constitutes a “political opinion”,[52][53] and as one commentator noted, “the fine points of ‘political opinion’ are often disputed.”[54]

In analyzing the social group factor, the BIA and the courts have approached the analysis from a variety of points that can be thought of as falling on a spectrum. At one end of the spectrum, the BIA’s ruling in Matter of Acosta provided a base point for analyzing the statutory definition of refugee with regard to what constitutes a “particular social group”. In its ruling, the BIA evaluated whether taxi drivers in El Salvador constituted a particular social group. In the first step of its evaluation, the BIA noted that the legislative history of INA §101(a)(42)(A) does not show that Congress intended a clear-cut meaning for social group. In fact, the UN committee that drafted the Convention definition only included this nexus factor as an addendum that was not part of the initial proposal. The BIA then invoked the doctrine of ejusdem generis (“of the same kind”) which allows a general term in a statutory provision that is used as part of an enumeration to be construed in a manner consistent with the specific terms that make up the rest of the enumeration. As such, the BIA concluded that social group was similar to race, religion, nationality, and political opinion in light of the “immutable characteristics” shared by these more specific terms. In applying this immutable characteristic notion of social group to the taxi drivers in El Salvador, the BIA ruled that the taxi driver could change jobs to avoid the threats of the anti-government group.

In essence, the common characteristic that defines the group must be one that members of the group cannot change or should not be required to change because it is fundamental to their individual identities or consciences. Similar to the approach the BIA took in Matter of Acosta where it defined social group based on immutable characteristics, the First,[55] Third,[56] and Seventh[57] Circuits also look at a group’s immutable characteristics and the alien’s membership in that group to define the social group factor.

At the other end of the spectrum, the Ninth Circuit looks at the “voluntary associational relationship” between people who share a common link and then uses that as its analytical framework to decide what comprises a particular social group under the statutory definition of refugee.[58] The Ninth Circuit emphasizes that the analysis focus not on the unchanging traits of the group’s members but on the level of homogeneity and cohesiveness in the group.[59] Conceptually, the voluntary associational relationship standard is much broader than the immutable characteristics standard.

At the middle point in the spectrum, the Second Circuit looks at a particular social group as a collection of individuals who possess some fundamental characteristic in common that is sufficient to distinguish the members of such a group in the eyes of the persecutor or in the eyes of the outside world in general.[60] The advantage of the Second Circuit’s definition is that gives emphasis to the external perceptions of a group— perceptions which are related to observable, fact-based traits of the group. The disadvantage of this definition is that while perceptions of the group can be significant, such perceptions offer little guidance in the way of a positive definition of the term “social group.” Nevertheless, the Second Circuit’s external perceptions standard preserves the tradition of case-by-case adjudication in interpreting statutory language to be administered by an executive agency.[61] The external perceptions standard seems to take a more practical approach than the immutability standard which is too specific and the voluntary association standard which is too broad. All in all, the general rule for evaluating what constitutes a “social group” seems to be that the more severe the persecution or likelihood of severe persecution an alien faces, the more likely the BIA and courts will find that alien’s membership in a social group.[62]

III. Economic Persecution-Based Claims for Refugee Protection Demand Refugee Definition Be Updated to Include “On Account of Learned Profession”

The INA definition of refugee ought to be updated to include on account of “learned profession”. A review of how the BIA and the courts delineate what constitutes “political opinion” and “particular social group” demonstrates that there is a lack of consensus. This lack of consensus can sometimes lead to decisions that miss the goal of refugee and asylum law. One reason why the understanding of political opinions and social groups do not command a greater consensus may be due to the absence of a clear statutory definition in the INA statute, in judicial and administrative interpretations of the INA statute, or in other related statutes.[63] Conversely, the concept of “learned profession” has been defined in a statute and corresponding regulation, specifically the Fair Labor Standards Act of 1938 (“FLSA”).[64][65] The presence of a conceptual definition of the term, learned profession, in FLSA would make it easier for the BIA and the courts to pin down the term analytically and apply it to each alien’s story once it is added to the INA definition of refugee.

A. Definition of Learned Profession

Dictionary.com defines “learned profession” as vocations that require highly advanced learning such as in law, medicine, or theology. The vocation of a learned professional is unique in the sense that not only is it a source of livelihood and economic sustenance, it is also part of the identity of an individual who attains the status of a learned profession. In that sense, the individual’s dignity is more intricately connected to his profession.

The Code of Federal Regulations tied to the FLSA defines learned professionals through a clause that exempts these types of professionals from the minimum wage and overtime pay requirements. The clause states that…

“To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction”.[66]

The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or manual trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.[67] The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession.[68]

Learned professionals can be differentiated from other types of workers. For example, Dr. Mo as a cardiologist would fit under the learned profession definition whereas the alien in Matter of Acosta, as a taxi driver would not fit under the learned profession definition. In addition, a learned profession can be differentiated from a business even though the two can share a common economic connection when a business hires a learned professional. A business exists for the purpose of making a profit from goods or services that may or may not have an impact on a society’s general welfare while a learned profession primarily exists for the purpose of providing a service that directly impacts the public interests in a society. While learned professionals may occupy a relatively higher economic status than other members of a given society, wealth is not a necessary characteristic for identifying learned professionals;[69] instead learned professionals are visible to other members of society based on the nature of their work.

Learned profession shares some similarities to “religion”, one of the enumerated nexus factors in the definition of refugee in INA 101(a)(42)(A).[70] Like most religions, learned professions are doctrinal in the sense that the principles and teachings of a specified learned profession can be codified and reduced to a knowledge or belief system that can be taught, indoctrinated, and put into practice.[71] For example, a popular saying among professors in law school is that they are teaching their students how to “think like a lawyer”;[72] this concept of thinking like a lawyer is analogous to the contemporary Christian campaign for teenagers and college students titled What Would Jesus Do? (“WWJD”).[73] The WWJD campaign provides bracelets that are geared to remind young Christians to think like Jesus when faced with tough situations in their daily lives.[74] Also, learned professions are similar to most religions along the lines of social visibility. The learned professional’s highly specialized knowledge and adherence to a code of professional ethics makes him or her socially identifiable in the manner of a bishop or rabbi from the perspective of the general public (who make up the community of the learned professional’s clients and potential clients).[75]

B. Economic Deprivation impacts Learned Professionals

Judicial and administrative interpretations of the term “persecution”, as used in the plain language of the INA definition of refugee, recognize that economic deprivation can amount to persecution. The Third Circuit acknowledged that the denial of an opportunity to earn a livelihood can amount to persecution.[76] Similarly, the Ninth Circuit determined that the Webster dictionary definition of “persecution” as the infliction of suffering or harm upon those who differ in a way regarded as offensive includes economic deprivation.[77][78] The BIA recognized that nonphysical forms of harm such as the deliberate imposition of severe economic disadvantage may amount to persecution;[79] furthermore, such imposition can be so severe that it constitutes a threat to an individual’s life, livelihood, or freedom.[80]

In an environment where acts of economic deprivation (loss of livelihood and dignity) exist as a form of persecution, such persecution can be on account of the persecuted alien’s status as a learned professional without any of the other nexus factors being present. As an illustration, consider that acts of persecution activated by cutting off the persecuted alien from her source of economic sustenance in order to punish her for her status as a learned professional can be contrasted from other acts of persecution such as female genital mutilation (“FGM”) and population control laws. Specifically, while acts of FGM would “not be in conformity with accepted human rights standards”,[81] applicants that have been subjected to these acts are usually subjected to them on account of one of the existing nexus factors (race, religion, nationality, political opinion, or social group) and not on account of how they earn a living.[82] On the other hand, a learned professional that is subject to individualized economic persecution on account of how she earns a living can potentially be much more economically deprived than an FGM victim because the types of persecutory acts she’ll face would be acts that are meant to cut her off from her source of economic sustenance. For example, Dr. Mo’s persecutors had the intention of burning down his clinic as a way to cut him off from his medical practice and in turn deprive him of the means of earning a living as a learned professional in medicine.

In applying the definition of learned profession to Dr. Mo’s story, it easily becomes well-founded that the attempt by Dr. Mo’s persecutors to burn down his clinic was an effort to cut him off from his source of economic sustenance in order to punish him for his status as a cardiologist practicing in Iraq. Moreover, Dr. Mo testified that he did not have any religious or political affiliations that would have triggered such attacks on his livelihood. The absence of a nexus factor on learned profession led to a tragic decision in Dr. Mo’s case that missed the goal of refugee and asylum law which aims to protect people whose home countries are unwilling or unable to protect. An even more unsettling implication in not including learned profession as a nexus factor is that acts of economic deprivation directed at learned professionals such as doctors can be particularly troublesome considering that a doctor should not be required to violate the fundamental ethical obligations of his profession of patient care in order to appease his persecutors.

C. Response to Arguments against Adding New Nexus Factor of Learned Profession

There are five main arguments against updating the INA statutory definition of refugee to include on account of learned profession. I will conclude my discussion by identifying and respond to each of these arguments in kind.

First, the INA statutory definition of refugee was not meant to cover learned professionals (or a person like Dr. Mo), if so, Congress would have actually included the term “learned profession” in the plain language as one of the nexus factors.

While it is true that “learned profession” appears no where in the statute, this argument fails to appreciate that the plain language does include “political opinion” and “social group” and both of these terms were not and have not been defined by Congress or a corresponding regulation. This likely demonstrates that Congress was not expecting a strict literal, textualist application of every single term in the statute. Moreover, the individualist perspective Congress endorsed in adopting the UN convention definition portrays Congress’s openness to emphasize the subjective factors of an applicant– factors which can vary from one group of aliens to another and even within the same group of aliens– thus making a strict adherence to only the plain language of the statute impractical at times.

A second argument is that the legislative history of the definition of refugee in the UN Convention and later in the INA does not indicate coverage of learned professionals.

This argument fails to take into account what the overarching concern was for the UN member states that negotiated the 1951 Convention definition of refugee and the 1967 Protocol modification of that definition which Congress later adopted. The overarching concern according to the legislative history was to make sure that refugee status did not apply to group of persons under generalized civil, political or economic strife. Learned profession does no fit under this generalized strife concern as learned professionals would be more akin to members of an ethnic or religious group who can be subject to persecution without the presence of a nation-wide strife.

A third argument is that learned professionals are like economic migrants – a group of individuals undeserving of refugee protection. For example, the UN Handbook defines an economic migrant as a person that voluntarily leaves his country in order to reside elsewhere due to a desire for better economic opportunities or simply for adventure.[83]

This argument fails to distinguish between an economic migrant’s motive and a learned professional’s motive for leaving his home country. Learned professionals can be differentiated from economic migrants based on the motivational factors for departure from their home country. Economic migrants leave to chase better economic opportunities while a learned professional under persecution on account of his learned profession leaves to get away from such persecution. An alien’s successful economic persecution-based claim on account of his learned profession would validate the internationally accepted human rights standard[84] that one should not have to tolerate persecution based on an aspect of his identity that he cannot change or should not be required to change—just as a religious person should not be required to change his beliefs, a learned professional should not be required to disavow his profession to appease his persecutors. Furthermore, an express inclusion of learned professionals under the refugee definition would strike the right balance between exclusion of all economically-motivated migrants on one hand and inclusion of all economically-motivated migrants on the other hand. This balance would be struck because learned professionals are a distinct group of individuals distinguishable not just by their relative economic status but also by their advanced learning and the public interest nature of their work.

A fourth argument is that learned professionals, based on their highly advanced learning and specialized skills, can relocate easily within their home country from an area where they were subject to economic deprivation to another area where they can avoid such deprivation.

This argument assumes that a learned professional’s persecutors are not located country-wide. In addition, internal relocation is subject to the reasonableness test; and the BIA and the circuit courts do not require an alien to relocate if such relocation is impractical or unreasonable.[85]

A fifth argument is that learned professionals can fit under the nexus factor of “political opinion” or “social group” and thus do not require a separate nexus factor.

This argument fails to appreciate the cleaner definition of “learned profession” in comparison to “political opinion” and “social group”. For one, “political opinion” is a fuzzy concept as discussed above; more so, a learned professional may still be subject to persecution without actually having a political opinion or having their persecutor impute one on them. If the BIA and the courts fold the concept of “learned profession” into the concept of “social group”, then learned professionals as a group will be subjected to the three aforementioned “social group” standards.

The possibility that the BIA and the courts can apply a “social group” standard to members of a learned profession is probably the most persuasive reason for not including “learned profession” as a new nexus factor. In essence, if Congress doesn’t have the appetite to change the INA statutory definition of refugee to include on account of “learned profession”, the BIA and the courts can read learned profession into the framework of what constitutes a social group. Since there is no agreement in the BIA and in the federal courts as to what actually constitutes a social group, it would be best for Congress to protect learned professionals by adding a new nexus factor— such a step would be in line with the goal of refugee and asylum law. If Congress fails to act, the BIA and the federal courts must recognize that learned professionals can fit in all three “social group” standards.

Learned professionals have an “immutable characteristic” in light of their prolonged course of specialized intellectual instruction which is analogous to the religious training shared by members of a religious group. Learned professionals also have a “voluntary associational relationship” in the sense that they share a common link of highly advanced formal and specialized education which allows members of a learned profession to exhibit a certain level of homogeneity e.g. “think like a lawyer”. Finally, learned professionals are perceived as possessing some fundamental characteristic that distinguishes them in the eyes of others e.g. Consider that lawyers and doctors are subject to certain code of ethics that influence how actual and potential clients and patients engage their services; two such examples are the Attorney-client privilege re lawyers and the Patient privacy policy re doctors.

Some may counter that learned professionals actually do not fit one or more of the three aforementioned social group standards. However, since the BIA and the courts might be inclined to consider the severity of the persecutory acts faced by the alien, it’s likely that the more severe the persecution or likelihood of severe persecution an alien faces, the more likely the BIA and courts will find that alien fits some membership in a social group.[86] As such, it is likely that the BIA and courts might not have too much difficulty in fitting a learned professional that has faced severe acts economic deprivation under a social group standard.

Conclusion

A learned professional is one of the most vulnerable members of a society with regard to individualized economic persecution. Economic persecution can prevent the learned professional from securing dignity especially if his or her home country is unwilling or unable to stop the economic persecution. In the United States (US), individualized economic persecution is a judicially constructed form of persecution under the INA definition of refugee.[87][88] As such, the INA definition of refugee should be updated to include persecution or well-founded fear of persecution on account of one’s learned profession.

This update is required for three reasons: one, the goal of Refugee and Asylum Law implies that economic persecution can be the basis for seeking protection as a refugee; two, protection as a refugee in the US based on individualized economic persecution has been recognized by the BIA and the circuit courts; and three, the continued recognition of economic persecution-based claims for refugee protection demand that the INA refugee definition be updated to include “on account of learned profession”. The rationale for this update is to protect a learned professional present in the US who in the past has been persecuted or faces future persecution in his or her home country because of his or her status as a learned professional and not because of race, religion, nationality, political opinion, or membership in a particular social group.

[1] 8 U.S.C. § 1101(a)(42)(A)(1982). The term “refugee” means (A) 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 term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

[2] The reference here is to Operation Iraqi Freedom, a military campaign that began on March 20, 2003 with the invasion of Iraq by a multinational force led by troops from the United States under the administration of President George W. Bush and troops from the United Kingdom under Prime Minister Tony Blair. https://www.defendamerica.mil/iraq/iraqifreedom.html (last visited October 27, 2010).

[3] This hypothetical story of an Iraqi cardiologist that was attacked while in his Baghdad clinic was derived from what actually happened to Dr. Ali Faraj as reported in The Guardian on Friday March 24 2006; https://www.guardian.co.uk/world/2006/mar/24/iraq.jonathansteele (last visited October 27, 2010).

[4] This figure was derived from Iraq’s Ministry of Higher Education and Scientific Research report as cited in https://www.guardian.co.uk/world/2006/mar/24/iraq.jonathansteele (last visited October 27, 2010).

[5] INA §235(b)(1)(B)(IV)(1982). The credible fear screening is conducted immediately after a foreign national informs the immigration officer at the port of entry that he is fleeing persecution or seeking asylum. The foreign national is then transferred to a detention center where a specially trained asylum officer conducts an interview. If the foreign national passes the interview, then he will be allowed to present a claim for asylum to an immigration judge through a regular asylum-seeker hearing process.

[6] This story of a suicide bomber attack on a local Baghdad hospital was derived from an actual bombing that took place on March 3, 2010 according to CNN; see https://articles.cnn.com/2010-03-03/world/iraq.violence_1_suicide-bomber-baquba-capital-of-diyala-province?_s=PM:WORLD (last visited October 27, 2010).

[7] My use of gender-specific personal pronouns such as “he, his” as opposed to gender-neutral ones like “his or her”, “he or she”, “their”, or “they” is in no way meant to resist the gender neutrality that is inherent in the application of refugee and asylum law.

[8] The individualist approach is in contrast to the socialist approach where the refugee is seen as a member of a generalized social or political group that is disenfranchised because of certain political or social occurrences in his home state (de facto disenfranchisement). The individualist approach is also in contrast to the juridicial approach where a person becomes a refugee automatically if he is a member of a group of persons shut out from the formal protection of the law e.g. access to courts in his home state (de jure disenfranchisement). James C. Hathaway, The Development of the Refugee Definition in International Law, 25-27 (Butterworths Canada Ltd. 1991).

[9] James C. Hathaway, The Development of the Refugee Definition in International Law, 27 (Butterworths Canada Ltd. 1991).

[10] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.unhcr.org/refworld/docid/3be01b964.html (last visited October 27, 2010).

[11] 1Edmund Jan Ozmanczyk, Encyclopedia of the United Nations and International Agreements, 274 (3d ed. 2003).

[12] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.unhcr.org/refworld/docid/3be01b964.html (last visited October 27, 2010).

[13] UN General Assembly, Protocol Relating to the Status of Refugees, 30 January 1967, United Nations, Treaty Series, vol. 606, p. 267, available at: https://www.unhcr.org/refworld/docid/3ae6b3ae4.html (last visited October 27, 2010).

[14] Id.

[15] Id.

[16] James C. Hathaway, The Development of the Refugee Definition in International Law, 37 (Butterworths Canada Ltd. 1991).

[17] E.g., compare Olga Tellis v Bombay Municipality Corporation, 2 Supp S.C.R. 51 (India 1985) (right to life includes right to livelihood) and Matter of Salama, 11 I&N Dec. 536 (BIA 1966) (economic discrimination constitutes persecution).

[18] UN General Assembly, Declaration on the Right to Development : resolution / adopted by the General Assembly, 4 December 1986, A/RES/41/128, available at: https://www.unhcr.org/refworld/docid/3b00f22544.html (last visited October 27, 2010) (emphasis added).

[19] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, 150, available at: https://www.unhcr.org/refworld/docid/3be01b964.html (last visited October 27, 2010).

[20] Id. at 164.

[21] Obama’s Remarks at the United Nations – Transcript, https://www.nytimes.com/2010/09/24/us/politics/24obama-text.html?pagewanted=1&_r=1 (last visited October 27, 2010).

[22] 8 U.S.C.A. § 1525 (2000).

[23] See e.g. Soric v. Flagg, 303 F.2d 289-291 (7th Cir. 1962) (denial of all types of employment can amount to physical persecution); Blazina v. Bouchard, 286 F.2d 507, 511 (3d Cir. 1961).

[24] 8 U.S.C. § 1253(h)(1982).

[25] See, e. g., Hearings on S. 500 Before the Subcomm. on Immigration & Naturalization of the Senate Judiciary Comm., 89th Cong., 1st Sess., pt. 2, at 535, 887 (1965); Hearings on H.R. 2580 Before Subcomm. No. 1 of the House Judiciary Comm., 89th Cong., 1st Sess., at 213, 217 (1965); Hearings on H.R. 7700 Before Subcomm. No. 1 of the House Judiciary Comm., 88th Cong., 2d Sess., pt. 3, at 860-61 (1964). See also Joint Hearings on S. 716, H.R. 2379, and H.R. 2816 Before the Subcommittees of the Committees of the Judiciary, 82d Cong., 1st Sess., 438, 449, 539-40, 628, 681 (1952).

[26] 1964 House Hearings, supra, note 5, at 860-61.

[27] H H.R. Rep. No. 781, 96th Cong., 2d Sess. 19, reprinted in1980 U.S. Code Cong. & Ad. News 160, 160; S. Rep. No. 256, 96th Cong., 1st Sess. 4, 14-15, reprinted in 1980 U.S. Code Cong. & Ad. News 141, 144, 154-55; H.R. Rep. No. 608, 96th Cong., 1st Sess. 9-10 (1979).

[28] The conference committee of the US Congress adopted the House version of the bill which did not include “displaced persons” in its definition of refugee and rejected the Senate’s bill which would have broadened the definition of refugee to include “displaced persons” in light of military or civil disturbance. Compare S. 643, 96th Cong., 1st Sess. § 201(a)(1979) with See H.R. 2816, 96th Cong., 1st Sess. § 201(a) (1979).

[29] See Matter of Acosta, 19 I. & N. Dec. 211, 222-223 (BIA 1985) (concluding that the pre-Refugee Act construction of “persecution” as threat to life and freedom can be applied to the Refugee Act).

[30] 8 U.S.C.A. § 1157(1982).

[31] The term “foreign national” may be used interchangeably with “alien”, “applicant”, “petitioner”, and in some specific instances “learned professional” throughout this discussion.

[32] 8 U.S.C.A. § 1208(b)(1)(A)(1982).

[33] 8 U.S.C.A. § 1208(b)(2)(C)(1982).

[34] 8 U.S.C.A. § 1159(a)(1)(B)(1982).

[35] 8 U.S.C.A. § 1159(b)(2)(1982).

[36] 8 U.S.C. § 1427(a)(1982).

[37] Hamlin, Rebecca. “Who Is a Refugee? Administrative and Federal Court Interaction in the United States, Canada, and Australia“ Paper presented at the annual meeting of the The Law and Society Association, TBA, Berlin, Germany, Jul 25, 2007<Not Available>. 2010-06 04. https://www.allacademic.com/meta/p175923_index.html (last visited October 27, 2010).

[38] Matter of Chen, Int. Dec. 3104 at 2 (BIA 1989) (showing of past persecution on account of alien’s religion made alien eligible for asylum).

[39] Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004) (applicant need not show that her persecutors include the German government and police if she has already been subject to past persecution by non-state actors that the German government took no action against after the acts of persecution were reported).

[40] Meguenine v. INS, 139 F.3d 25 (1st Cir. 1998) (applicant did not meet his burden of establishing that there is a pattern or practice of persecution in his home country directed at persons similarly situated to him and thus failed to show he was singled out).

[41] 19 I&N Dec. 211 (BIA 1985).

[42] Id. at 222.

[43] Id. at 216.

[44] Id. at 216-217.

[45] Id.

[46] Id. at 231.

[47] A subsequent decision by the BIA in Matter of Mogharrabi, 19 I&N Dec. 439 (1987), deleted the word “easily” from this four-part construction.

[48] 19 I&N Dec. 211, 217 (BIA 1985).

[49] Id. at 231.

[50] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1992 ed.) ¶ 83.

[51] Lim v. INS, 224 F.3d 929, 934 (9th Cir.2000).

[52] INS v. Elias-Zacarias, 502 U.S. 478, 486 (1992) (Stevens, J., dissenting) (noting that political opinion may be expressed negatively as well as affirmatively and the decision for a person to remain neutral can be a political one).

[53] Also consider that in Bolanos-Hernandez v. I.N.S., 767 F.2d 1277 (9th Cir.1984), the Ninth Circuit held that political neutrality is a political opinion if it was the result of a conscious, affirmative choice. In that case, a former member of a right-wing party and the Salvadoran army had decided to become neutral. Then a guerilla group attempted to recruit him and threatened to kill him if he did not join. Rather than join the guerillas, the applicant fled El Salvador. The court found that the applicant had made an affirmative decision to stay neutral and would be singled out for persecution because of it. However, this case has not been followed by the BIA and other courts of appeals, all of which have ruled that mere neutrality does not constitute a political opinion.

[54] 11/94 LAW MANUAL at 48.

[55] Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) (Nuclear family relationship is immutable and constitutes membership in a particular social group).

[56] Escobar v. Gonzales, 417 F.3d 363 (3d 2005) (Honduran street children do not constitute membership in a particular social group partly because they do not possess immutable characteristics).

[57] Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998) (Parents of Burmese student dissidents share a “common, immutable characteristic” sufficient to comprise a particular social group).

[58] Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986) (Immediate members of a family is the prototypical example of a particular social group but a class of young urban males of military age is too broad).

[59] Id. at 1577.

[60] Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991) (Women previously beaten and raped by Salvadoran guerrillas did not comprise a social group because they lacked a “recognizable and discrete” attribute that would enable their persecutors to distinguish them from other young women).

[61] INS v. Cardoza-Fonseca, 480 US 421, 448 (1987) (The Supreme Court recognized the value of case-by-case adjudication in dealing with terms which are ambiguous in a statute administered by an executive agency).

[62] Victoria Neilson, On the Positive Side: Using a Foreign National’s HIV-Positive Status in Support of an Application to Remain in the United States, 45-53 (University Publishing Group) (2004) (Discussion of how there have been successful defensive applications for HIV-positive individuals who were able to demonstrate that they would be incarcerated in sub-standard conditions if returned to their home countries).

[63] Consider that the BIA adopted a pre-Refugee Act construction of the term “persecution” from uniformly accepted judicial and administrative constructions of that term as the term was not clearly defined in the Refugee Act. Matter of Acosta, 19 I. & N. Dec. 211, 222-223 (BIA 1985).

[64] 29 C.F.R. § 541.301 (2007).

[65] 29 U.S.C. § 213 (2000) (Exempting learned professionals from certain minimum wage and maximum work hour requirements by conceptualizing them as persons “employed in a bona fide executive, administrative, or professional capacity” and charging the Secretary of Labor with promulgating regulations that further define “learned professionals” which the Secretary of Labor did with 29 C.F.R. § 541.301 (2007)).

[66] 29 C.F.R. § 541.301 (2007).

[67] https://www.dol.gov/whd/opinion/FLSANA/2007/2007_08_23_02NA_FLSA.htm (last visited November 20, 2010).

[68] Id.

[69] In this sense, learned professionals are not actually synonymous with the affluent members of society. Consider a case, In re A-M-E & J-G-U-, 24 I&N Dec. 69 (BIA 2007), where the BIA found that “affluent Guatemalans” do not constitute a social group because the group lacks social visibility and is not defined with adequate particularity.

[70] 8 U.S.C. § 1101(a)(42)(A)(1982).

[71]“Congregation for the Doctrine of the Faith.” Encyclopædia Britannica. 2010. Encyclopædia Britannica Online. 20 Nov. 2010. https://www.britannica.com/EBchecked/topic/167462/Congregation-for-the-Doctrine-of-the-Faith (last visited November 20, 2010).

[72] https://legalcareers.about.com/od/educationandtraining/a/legalmind.htm (last visited November 20, 2010) (A Career in Law Could Change the Way You Think).

[73] https://www.christianity.com/Christian%20Living/Features/11622298 (last visited November 20, 2010) (A Career in Law Could Change the Way You Think)

[74] Id.

[75]Jerold S. Auerbach, Rabbis and Lawyers, The Journey from Torah to Constitution 3-15 (2010) (comparing lawyers and rabbis as community leaders).

[76] Dunat v. Hurney, 297 F.2d 744 (3d Cir. 1961) (granting an indefinite stay of deportation to an applicant, a Yugoslavian, who presented evidence that the Communist government of that country would deny him the opportunity to earn a living).

[77] Kovac v. INS, 407 F.2d 102, 106-107 (9th Cir. 1969).

[78] See Webster’s Third New International Dictionary 1685 (1965).

[79] In Re T-Z-, 24 I & N Dec. 163 (BIA 2007).

[80] Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985); Matter of D-L-& A-M-, 20 I. & N. Dec. 409 (BIA 1991).

[81] Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status reedited January 1992, ¶ 59.

[82] https://www.nocirc.org/symposia/first/badawi.html (last visited November 20, 2010)(a study showing that FGM was driven much more by religion, family background, locale, and nationality, and less by purely economic factors such as how the individual or her parents earn their living).

[83] Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status reedited January 1992, ¶ 62.

[84] Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status reedited January 1992, ¶ 59.

[85] Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004) (pointing out the unreasonableness of internal relocation where alien would be required to wait years for a new apartment); see Cardenas v. INS, 294 F.3d 1062, 1067 (9th Cir.2002) (holding that a State Department Report was inadequate to prove that the petitioner could relocate internally where the Report did not identify a safe area within Peru); see also 8 C.F.R. § 208.13(b)(3) (2001) (setting out a nonexhaustive list of relevant factors to consider, including “whether the applicant would face other serious harm in the place of suggested relocation”); see also In re T-M-B, 21 I. & N. Dec. 775, 789, 1997 WL 80988 (BIA 1997) (“Determinations of `reasonableness’ include consideration of likely financial or logistical barriers to internal relocation….”) (Rosenberg, J., dissenting).

[86] Note by Department of Homeland Security stating that domestic violence can be the basis for asylum and finding that such women could fit into some kind of membership e.g. “Peruvian women in domestic relationships who are viewed as property by virtue of their positions within a domestic relationship and who are unable to leave”. Written Clarification Regarding the Definition of “Particular Social Group”, Dated July 13, 2010.

[87] Borca v. INS, 77 F. 3d 210 (7th Cir. 1996) (Economic persecution is individualized if it’s a result of “deliberate imposition of substantial economic disadvantage”).

[88] Matter of Acosta, 19 I. & N. Dec. 211, 222-223 (BIA 1985) (Economic persecution is individualized if it’s a result of “deprivation or restriction so severe that it constitute a threat to an individual’s life or freedom”).

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