Abandoning the Subjective and Objective Components of a Well-Founded Fear of Persecution

Kim, Grace | April 17, 2021

Current asylum law requires that asylum seekers prove that they have a “well-founded fear of persecution.” However, a “well-founded fear”—the evidentiary standard in asylum cases—has remained ambiguous and difficult to apply in asylum cases. In Cardoza-Fonseca, the Supreme Court held that an asylum seeker can establish a well-founded fear with less than a 50% probability of future persecution. Although the Supreme Court sought to clarify the meaning of a well-founded fear, the decision has complicated the evidentiary standard by implying that it consists of two parts: the subjective component and objective component. The “subjective” component—the asylum seekers’ subjective fear of being persecuted if they return to their home countries—is superfluous because this component is rarely contested. The subjective component is essentially a non-issue because asylum seekers can prove this component by stating that they are afraid to go back to their home countries. The objective component—whether asylum seekers’ fears are objectively reasonable—remains unclear. Moreover, courts have misapplied the well-founded fear standard and interpreted the objective component in inconsistent ways. Thus, this Note argues that the Supreme Court should eliminate the subjective component in the well-founded fear analysis and assume that asylum seekers have a genuine fear if they submit an application. In addition, the Supreme Court should simplify the objectively reasonable fear analysis to “a reasonable possibility of persecution,” which would be a 10% chance of persecution. A reasonable possibility of persecution would emphasize how a well-founded fear points to a threshold or probability of persecution rather than a separate, convoluted analysis.