The asylum system in the United States is a melting pot of political discourse, international relations, and novel questions of law. Among other legal requirements, an asylee bears the burden of showing (1) they were persecuted or have a well-founded fear of future persecution and (2) that the persecution was committed by the government or that the government is unwilling or unable to protect the victim. One of these questions of law, that has led to a disagreement in federal appellate courts, is whether the second prong above is satisfied when party members of the controlling government party, rather than party officials, are the persecutors.
The political infrastructure of India is substantially different to that of the United States. Unlike the part-time city council members in various rural areas here, local authorities such as village leaders and political representatives have significant power and influence over the local populace in India. Like the United States, however, politics can be very polarizing and potentially violent. Often, asylees from India claim persecution on behalf of their political opinion, an assertion that is substantiated by decades of empirical evidence.
This Article discusses the evolution of asylum law as applied to Sikh refugees and proposes a resolution to an existing circuit split on a core issue. Part I summarizes the law of establishing eligibility for asylum and the relevant counter arguments. Part II discusses the jurisprudence of the “leadership limitation,” a principal of law derived from three circuits’ caselaw about terrorist organizations. Part III analyzes the disagreement between the Second and Ninth Circuits and the respective cases. Part IV proposes a resolution by applying the principal of law from Part II to the circuit split in Part III.
To read this Article, please click here: The Leadership Limitation on Persecutors and Terrorist Organizations
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