POLITICKING ASYLUM’S POLITICAL OPINION
LINDA KELLY*
ABSTRACT
Does saying “No” to a rapist and being brutally attacked in retaliation es-
tablish political opinion for asylum? Is a political opinion expressed by an
individual who is severely and repeatedly beaten for refusing to join a street
gang because it is “bad for my town and country”?
Politicking Asylum’s Political Opinion provides a new approach to win-
ning asylum claims for victims of private violence like rape and gang recruit-
ment. It suggests that recent case law, both administrative and judicial, can
provide direction to winning asylum cases for private violence victims by
interpreting their political opinion within the proper context and by relying
upon both direct and circumstantial evidence to establish that their fear of
persecution on account of such political opinion is reasonable.
TABLE OF CONTENTS
INTRODUCTION ......................................... 44
I. THE LIMITS OF ASYLUM’S “MEMBERSHIP IN A PARTICULAR SOCIAL
GROUP”......................................... 46
II. DEFINING ASYLUM’S “POLITICAL OPINION”................. . 49
A. Whose Political Opinion......................... 49
B. What Is Political Opinion . . . . . . . . . . . . . . . . . . . . . . . . 50
C. How Is Political Opinion Expressed . . . . . . . . . . . . . . . . . 51
D. The Why of Political Opinion: The Mixed Motives of “on
Account of”................................. . 53
III. PROMOTING POLITICAL OPINION FOR PRIVATE VIOLENCE VICTIMS . . . 54
*M. Dale Palmer Professor of Law, McKinney School of Law, Indiana University. © 2025, Linda Kelly.
43
A. Hernandez-Chacon V. Barr. . . . . . . . . . . . . . . . . . . . . . . 55
B. Zelaya-Moreno V. Wilkinson. . . . . . . . . . . . . . . . . . . . . . 57
IV. POLITICAL OPINION 101: LESSONS LEARNED ................. 58
V. APPLYING THE LESSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
A. Rape Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
B. Gang Resisters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
INTRODUCTION
Does saying “no” to a rapist and being brutally attacked in retaliation es-
tablish a political opinion for asylum? Is a political opinion expressed by an
individual who is severely and repeatedly beaten for refusing to join a street
gang because it is “bad for my town and country”
1
? The definition of refugee
creates numerous challenges for victims of private violence to qualify for
asylum under U.S. immigration law.
Politicking Asylum’s Political Opinion provides a new approach to win-
ning asylum claims for victims of private violence like rape and gang recruit-
ment. It suggests that recent case law, both administrative and judicial, can
provide direction to winning asylum cases for private violence victims by
interpreting their political opinion within the proper context and by relying
upon both direct and circumstantial evidence to establish that their fear of
persecution on account of such political opinion is reasonable.
To win asylum, an individual must successfully demonstrate that they have
a fear of persecution “on account of race, religion, nationality, membership in
a particular social group, or political opinion.”
2
While every criterion has its
challenges,
3
a great deal of legal attention has been recently devoted to consid-
ering how individuals seeking safety from “private violence” can establish the
nexus between persecution and the basis for such persecution.
4
Significant
2. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Asylum (as set out in 8 U.S.C. § 1158(b)(1)(A)),
relies upon the definition of a refugee (as set out in 8 U.S.C. § 1101(a)(42)(A)). While this underlying stat-
utory substantive standard of asylum and refugee is identical, the two standards literally divide based
upon where an individual is physically located upon making their claim. An individual is only eligible for
asylum when they “are physically present” or are considered to have “arrived” in the United States. 8
U.S.C. § 1158(a)(1). An individual otherwise seeking the safety of the United States under this standard is
considered to be applying for refugee status. For further discussion of procedural and other distinctions
between asylum and refugee law, see, e.g., IRA J. KURZBAN ET AL., KURZBAN’S IMMIGRATION LAW
SOURCEBOOK: A COMPREHENSIVE OUTLINE AND REFERENCE TOOL 376–392 (18th ed. 2023) and STEPHEN
H. LEGOMSKY & DAVID B. THRONSON, IMMIGRATION AND REGUGEE LAW AND POLICY 951–957 (7th ed.
2019).
3. For comprehensive discussion of each of asylum’s criteria, see KURZBAN, supra note 2, at 384–
386; LEGOMSKY, supra note 2, at 360–362.
4. See infra note 149 and accompanying text.
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