Law Commons^™

Unwilling Or Unable? The Failure To Conform The Nonstate Actor Standard In Asylum Claims To The Refugee Act, Charles Shane Ellison, Anjum Gupta

Faculty Scholarship

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution.

As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In …