Love the Refugee, Hate the Group: The Troublesome Precedent of Halim

Michael Goodyear

Second-year student at the University of Michigan Law School

Having a real risk of persecution is an essential element of being a refugee, but evidence of individualized risk is not always available.[1] Recognizing this, courts across the world reject a “singling out requirement” and allow evidence of persecution of persons similarly situated to the individual to establish his or her risk of persecution.[2] Some courts in the United States, however, apply evidentiary standards that diverge from the universally accepted “reasonable possibility” of persecution standard.[3] Taking the Seventh Circuit’s decision in Halim v. Holder as an example of one such divergence, this note argues that all claims of being persecuted, whether based on individual experiences or on those of persons similarly situated, should be evaluated under the “reasonable possibility” standard and that any divergences from this standard violate U.S. and international refugee law.

The Universal Reasonable Possibility Standard

Courts across the world have adopted a “reasonable possibility” of persecution as the standard for determining whether an individual has a “well-founded fear of being persecuted,”[4] one of the required elements of a refugee under the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”).[5] The U.S. Supreme Court was the first to articulate this standard in Cardoza-Fonseca,[6] where the Court clarified that a “reasonable possibility” is not a high burden of proof; ten percent likelihood is enough.[7] Since then, other major jurisdictions have adopted similar tests: the United Kingdom has adopted a “reasonable degree of likelihood” inquiry;[8] Canada has relied upon a “serious possibility” test;[9] and Australia has utilized a “real chance” framework.[10]

This effectively universal evidentiary standard for well-founded fear is purposely low to account for the inherent difficulty of assessing refugee claims and the potentially fatal risk of error.[11] Immigration judges must prognosticate the future in a far away country they likely know little about.[12] Decisions are often determinative of life or death, with a mistake forcing an individual to face persecution in their home country and violating the deciding country’s obligation of non-refoulement.[13]

Raising the Standard for Group-Based Harm

International refugee law does not require an asylum applicant to demonstrate individual singling out for persecution.[14] U.S. law also does not require this if the applicant

“establishes that there is a pattern or practice in his or her country of nationality or, if stateless, in his or her country of last habitual residence, of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion.”[15]

U.S. Circuit Courts, however, are split as to the evidentiary standard for establishing a “pattern or practice.”[16] Some, such as the Seventh Circuit in Halim v. Holder have adopted tests that that are more restrictive than the “reasonable possibility” inquiry.[17] 

Several Circuit Courts in the United States have articulated flexible tests that may be read to harmonize with the “reasonable possibility” standard. The Second Circuit has held that to establish a pattern or practice of persecution against a group, the asylum applicant must show that persecution was “so systemic or pervasive as to amount to a pattern or practice of persecution.”[18] But, the Second Circuit has not clarified the exact meaning of “systemic or pervasive”[19] beyond repeatedly denying claims for not meeting it.[20] Thus, the standard remains ambiguous even if a generous reading of it could still be in line with the universal “reasonable possibility” standard. Similarly, the Eighth Circuit has held that a pattern or practice of persecution does not require all members of the group to have been threatened for a well-founded fear to exist.[21] This is a poorly defined standard; but, by not requiring all members of a group to be in danger of persecution, it is not creating a more stringent standard than a “reasonable possibility” of being persecuted.

 Other Circuit Courts, such as the Seventh Circuit in Halim v. Holder, have established standards that are tighter and more demanding than that of a “reasonable possibility” of persecution.[22] Halim was a citizen of Indonesia who claimed that he would be subject to persecution in Indonesia because of his Chinese ethnicity and Christian religion.[23] Although Halim had never been physical harmed himself, he based his claim on the pattern and practice of persecution against ethnic Chinese and Christians in Indonesia, citing well-documented anti-Chinese and anti-Christian violence and riots.[24] The Seventh Circuit denied Halim’s claim, holding that refugee claims based on a pattern and practice of persecution against a group “require an extreme level of persecution,” comprised of a “systematic, pervasive, or organized effort to kill, imprison, or severely injure” the relevant group.[25]

Violating the Evidentiary Standard

When high courts across the world rejected the “singling out” requirement for determining refugee status, they did not raise the evidentiary standard for establishing a well-founded fear of being persecuted based on a pattern or practice against a particular group.[26] Rather, they held that a “pattern or practice” of persecution is a method of establishing the “well-founded fear” element of the refugee test, not an independent standard for what constitutes a “well-founded fear.”[27]  Evidence of group-based harm just needs to meet the same “reasonable possibility” standard required for showing a well-founded fear through individualized persecution.[28] Halim’s extreme level of persecution standard therefore cannot be reconciled with the refugee law of the United States, other countries, or the Refugee Convention itself.

Halim’s extreme level of persecution standard violates U.S. refugee law by mandating a higher level of persecution than the “reasonable possibility” standard that the U.S. Supreme Court adopted in Cardoza-Fonseca.[29] Cardoza-Fonseca noted that “reasonable possibility” requires no more than a ten percent likelihood of mere persecution.[30] “Extreme” suggests something more than that.[31] The Halim court used extreme persecution as a different standard and held that conditions in Indonesia had not yet deteriorated to an extreme level of persecution.[32] By raising the standard, the Halim court made meeting the refugee definition harder and went against the Cardoza-Fonseca standard of “reasonable possibility.”

Countries like Canada have not adopted an evidentiary threshold akin to an extreme level of persecution when adjudicating refugee claims based on evidence of persecution of similarly situated individuals.[33] In Junusmin, which involved similar facts to those in Halim, the Canadian Federal Court chided the Immigration and Refugee Protection Board for not considering evidence of widespread discrimination and violence against Chinese Christians in Indonesia in its analysis of Junusmin’s claim.[34] It found that one isolated attack against the applicants could be persecution, especially when considering the larger societal evidence of persecution against Chinese Christians.[35] The court did not hold any higher standard for evidence of persecution against Chinese Christians in general compared to evidence of individuated persecution against the applicants.[36] Instead, the Junusmin court focused on analyzing all evidence, both of individual persecution and group-based persecution, in determining whether a well-founded fear existed.[37] Since the Refugee Convention is an international treaty with no supra-national court, the construction of its terms by other State Parties is important and can be invoked for interpretative purposes per Articles 31 and 32 of the Vienna Convention on the Law of Treaties.[38]  

Beyond just circumventing U.S. and comparative evidentiary standards, Halim also goes against the Refugee Convention itself. The Vienna Convention leaves little doubt that the text itself is the leading article for interpretation.[39] The text of the Refugee Convention has the standard of a “well-founded fear of being persecuted.”[40] It does not require extreme persecution or a fear of extreme persecution. While the term persecution is undefined, extreme persecution is undoubtedly a higher bar than persecution.  

An Illusory Slippery Slope

The Seventh Circuit advances a classic slippery slope argument to justify its “extreme level of persecution” standard in Halim,asserting that finding a pattern or practice of persecution of a group of individuals makes every member of the group a refugee.[41] Its logic is that if a category of people is automatically given access to refugee status, there will be a flood of refugees arriving in the United States. This rationale, however, not only contravenes the Refugee Convention,[42] but is also unconvincing, as it ignores the experience of other countries that have recognized group-based protections and the individualized inquiry with group-based persecution. After Canada recognized women as a social group despite slippery slope arguments against doing so,[43] there was no significant increase in the number of refugees coming into Canada.[44]

The Seventh Circuit also ignores that refugee claims based upon the persecution of similarly situated individuals still contain an individualized element. An applicant must establish that he or she is a member of the persecuted group or is similarly situated to those that have been persecuted.[45] As recognized by international tribunals, this requirement means that there is never complete deference to outside circumstances in determining a well-founded fear.[46] For example, while the Australian High Court encourages reliance on group-based evidence of risk of persecution, it has also stressed that the central question always remains on the individual.[47]  

Besides being a poor logical argument, the Seventh Circuit’s argument also goes against the intent of the Refugee Convention. The context[48] of the Refugee Convention was the post-World War II landscape with the mass group atrocities of Nazi Germany still fresh in the drafters’ minds.[49] It was certainly not the intention of the drafters to prevent refugees from gaining access to protection because of their number.[50] The only relevant question is whether a person is a refugee, not to exclude those who qualify because there are a large number of people being persecuted for the same reason.[51] The Refugee Convention’s definition of a refugee is already incredibly difficult to meet, encompassing seven requirements with their own individual standards.[52] This tight definition severely limits the scope of those eligible for refugee status. Limiting it further under a slippery slope justification adds extra conditions not contemplated by the drafters and not included in the Refugee Convention. It is simply denying refugee status to those who deserve it.

Retreating Back to Compliance

Halim’s “extreme level of persecution” requirement for a pattern or practice of persecution is in contravention of both the Refugee Convention and the accepted norm of a reasonable possibility standard for well-founded fear. However, it is not a difficult standard to fix. The U.S. allowance of a “pattern or practice” of persecution to establish a well-founded fear is good law, in line with the common international refugee law practice of using evidence of those similarly situated.[53] The language is correct; some U.S. courts like the Seventh Circuit have simply misinterpreted it.

The main problem with the “pattern or practice” model is that it is not explicitly defined, making it easy to misread. The Second Circuit’s “systemic or pervasive” standard may be in line with a reasonable possibility standard, but could be read to require something greater.[54] The First Circuit’s “demanding” standard, like the Seventh Circuit’s “extreme” standard in Halim, is higher than Cardoza-Fonseca’s mere “reasonable possibility.”[55] If the Circuits retreat from their current higher evidentiary standards for establishing a well-founded fear from a pattern or practice of persecution, they will fall back into line with the evidentiary standard Congress intended when incorporating refugee protection into U.S. immigration law, that of the Refugee Convention.[56]

Conclusion

Halim was wrongly decided. By imposing a higher standard for evidence of group-based persecution, the Seventh Circuit ignored the reasonable possibility test laid out by the Supreme Court in Cardoza-Fonseca and created a higher bar for Halim to reach before being recognized as a refugee. Instead, the Seventh Circuit should have applied the reasonable possibility standard to evidence of widespread persecution against Chinese Christians in Indonesia and evidence of individual persecution, as do other countries.[57] If it had considered group-based persecution under a non-heightened evidentiary standard, it is much more likely that the Halim court would have found in favor of the claimant, as the Canadian court did under like circumstances in Junusmin. Instead, the Seventh Circuit sent Halim back to a country wracked with group-based persecution of Chinese Christians like himself, all but signing his death warrant.


[1] See James Hathaway & Michelle Foster, The Law of Refugee Status, 113–14, 172 (2d ed. 2014).

[2] See, e.g., Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir. 2004); Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, ¶75 (Austl.); Salibian v. Canada, [1990] 3 F.C. 250, para. 16 (Can.); Refugee Appeal No. 300/92 [1994] NZRSAA 62 at [7–8] (N.Z.).

[3] See, e.g., Halim v. Holder, 755 F.3d 506, 512 (7th Cir. 2014); Marsadu v. Holder, 748 F.3d 55, 60 (1st Cir. 2014).

[4] Hathaway & Foster, supra note 1, at 110–115.

[5] Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 189 U.N.T.S. 152 [hereinafter “Refugee Convention”].

[6] I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).

[7] See id.

[8] R v. Sivakumaran [1988] AC 958 (HL) 994 (UK).

[9] Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680 (Can.).

[10] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Austl.).

[11] Hathaway & Foster, supra note 1, at 114.

[12] See Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473, ¶75–77 (Austl.).

[13] Refugee Convention, supra note 5, at art. 33.

[14] James Hathaway, Refugees and Asylum, in Foundations of International Migration Law 177, 184-85 (B. Oppeskin et al. eds., 2012).

[15] 8 C.F.R. § 208.13(b)(2)(iii)(A) (2019).

[16] Compare Ying v. Lynch, 631 F. App’x 51, 53 (2d Cir. 2015) (applying a reasonable possibility standard to pattern or practice cases) with Halim v. Holder, 755 F.3d 506, 512 (7th Cir. 2014) (mandating an extreme level of persecution in pattern or practice cases).

[17] Halim, 755 F.3d at 512.

[18] Ying, 631 F. App’x at 53 (quoting In Re A–M–, 23 I. & N. Dec. 737, 741 (B.I.A. 2005)).

[19] Mufied v. Mukasey, 508 F.3d 88, 92–93 (2d Cir. 2007) (remanding to the B.I.A. to “elaborate upon the ‘systemic, pervasive, or organized’ standard it has adopted”).

[20] See, e.g., Lingurar v. Holder, 471 F. App’x 40, 41 (2d Cir. 2012).

[21] Tegegn v. Holder, 702 F.3d 1142, 1147 (8th Cir. 2013).

[22] Halim, 755 F.3d at 512. The First Circuit has also adopted a similarly stringent standard, holding in Marsadu v. Holder that the “pattern or practice” standard “is demanding and in substance requires a showing of regular and widespread persecution creating a likelihood of persecution of all persons in the group.” Marsadu v. Holder, 748 F.3d 55, 60 (1st Cir. 2014).

[23] Halim, 755 F.3d at 509–511.

[24] Id. at 510–511.

[25] Id. at 512.

[26] See, e.g., Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir. 2004); Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, ¶75 (Austl.); Salibian v. Canada, [1990] 3 F.C. 250, para. 16 (Can.); Refugee Appeal No. 300 [1994] NZRSAA 62 at [7–8] (N.Z.).

[27] See, e.g., Knezevic, 367 F.3d at 1213; Appellant S395/2002,216 CLR at ¶75 (Austl.); Salibian, 3 F.C. 250 at para. 16 (Can.); Refugee Appeal No. 300 NZRSAA 62 at [7–8] (N.Z.); Hathaway & Foster, supra note 1, at 169-173.

[28] Hathaway & Foster, supra note 1, at 169.

[29] Compare Halim, 755 F.3d at 512 (mandating an extreme level of persecution in pattern or practice cases) with I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (holding the persecution standard to be a “reasonable possibility”).

[30] Cardoza-Fonseca, 480 U.S. at 440.

[31] Standard dictionary definitions are “existing in a high degree” and “exceeding the ordinary, usual, or expected.” Extreme, Merriam-Webster (11th ed. 2019).

[32] Halim, 755 F.3d at 512–514 (7th Cir. 2014).

[33] See Junusmin v. Minister of Citizenship and Immigration, [2009] F.C. 673, para. 32 (Can.).

[34] Id.

[35] Id. at para. 55.

[36] Id.

[37] Id. at para. 32.

[38] Hathaway & Foster, supra note 1, at 3, 5–12.

[39] Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter “Vienna Convention”].

[40] Refugee Convention, supra note 5, at art. 1(A)(2).

[41] Halim v. Holder 755 F.3d 506, 512 (7th Cir. 2014) (citing Ahmed v. Gonzales, 467 F.3d 669, 675 (7th Cir.2006)).

[42] See supra notes 26–40 and accompanying text.

[43] See Ward v. Attorney General, [1993] 2 S.C.R. 689, 739 (Can.).

[44] In fact, the year after Ward was decided was the beginning of a precipitous drop in the number of Canadian refugees. Refugee Population by Country or Territory of Asylum, World Bank, https://data.worldbank.org/indicator/SM.POP.REFG?locations=CA,[https://perma.cc/K5WT-GZNG].

[45] Hathaway & Foster, supra note 1, at 170.

[46] See, e.g.,Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir. 2004). Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473, ¶75–78 (Austl.); Regina v. Secretary of State for the Home Department, ex parte Jeyakumaran, [1985] EWHC 1 (Eng.).

[47] See id. ¶78. (“The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.”).

[48] Vienna Convention, supra note 39, at art. 31.

[49] Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law163–165 (3d ed. 2007)

[50] Cf Hathaway & Foster, supra note 1, at 367 (arguing that the drafters intended the five protected grounds to serve as the limiting criteria for the refugee definition).

[51] See id. at 1, 367.

[52] See generally Hathaway & Foster, supra note 1.

[53] See Hathaway & Foster, supra note 1, at 169-70.

[54] See supra notes 18–21 and accompanying text.

[55] See supra note 22 and accompanying text.

[56] I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987) (“If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.”).

[57] See supra notes 33–37 and accompanying text.

Suggested Citation: Michael Goodyear, Love the Refugee, Hate the Group: The Troubling Precedent of Halim, RefLaw (Apr. 26, 2019), http://www.reflaw.org/love-the-refugee-hate-the-group-the-troublesome-precedent-of-halim/

1 Comments

  • Common Law Radio Posted April 28, 2019 at 1:22 am

    It strikes me that one thing that, at least in theory, American refugee law does well is separate out what it means for a refugee claim to have an objective basis. The requirement that a claimant show that there is either a pattern or practice of persecution or else that there is evidence of past targeting appears to be a good working set of categories for what is otherwise more ill-defined in Canada’s refugee law. In practice in Canadian decisions, the lack of categories for what it means to have an objective basis – are we looking at those who are similarly situated? (yes), are we looking at what has happened in the past? (yes), are we looking at any other reasons why the claimant may be at risk? (yes) – has perhaps led to unstructured risk analysis and an undue focus on credibility, as academic Hilary Evans Cameron describes in her work.

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