Lawyers often say that asylum requires a severe beating or a criminal case. In reality, even minor physical violence applied during detention on a protected ground can be considered persecution — based on a 2006 Second Circuit federal court of appeals decision.

Three Paths to Asylum in the US

Asylum can be obtained in several ways. The first is to prove past persecution based on a legally protected ground: political opinion, race, nationality, religion, or membership in a particular social group. You must show that there was a serious threat to life, freedom, or health.

The second way relies on the threat of future persecution. You must prove that if returned to your home country, the probability of suffering substantial harm is 10 percent or more. This approach is governed by the Cardoza-Fonseca precedent.

The third way is one of the least known options: asylum can be granted if you were persecuted by authorities and physical force was used against you during detention. This requires proving a minor or moderate degree of physical violence, not only serious injuries.

The Second Circuit’s Decision in Besovich-Gonzalez

The applicant received two denials of asylum — at the trial court level and at the BIA (Board of Immigration Appeals). His case was political: he reported being struck twice while in detention. Both instances found the harm inflicted insignificant and rejected the petition.

However, the Second Circuit federal court of appeals reviewed the case and reached the opposite conclusion, which became a precedent. This case can now be used by other applicants who experienced minor physical violence while in detention.

Ways to Obtain Asylum in the US

  1. Past persecutionProve there was a threat to life, freedom, or health based on a protected groundPolitical opinion, race, nationality, religion, social group
  2. Threat of future persecutionProve the probability of substantial harm is 10% or moreGoverned by the Cardoza-Fonseca precedent
  3. Government violence during detentionProve physical violence during detention on a protected groundMinor or moderate severity is sufficient

The Context of Detention Matters

The appeals court ruled that actions that may seem minor on their own — a minor beating, threats, insults — must be assessed considering the specific circumstances of the detention or arrest.

If a person was detained on a legally protected ground and subjected to physical violence or mistreatment, the connection between that violence and the detention itself is significant. The court stated that a minor beating or physical humiliation intended to cause pain or suffering can rise to the level of persecution if it occurred in the context of arrest or detention on a protected ground.

Violence on the Street vs. in Custody — Different Situations

If you were attacked while free and sustained a few bruises, this event alone likely won’t qualify as persecution. However, if the same thing happened while you were being held against your will and authorities exceeded their powers, the context of detention combined with physical violence can rise to the level of persecution.

The critical condition: you must prove that the detention and the violence inflicted were connected to one of the protected grounds. If your nose was simply broken in custody for a reason unrelated to political views, race, or another protected ground, asylum on this basis will not be approved.

Коридор судебного здания с дверями кабинетов и судебными уведомлениями на стене."

When a Lawyer’s Advice Is a Reason to Walk Away

If a lawyer tells you that you won’t get asylum because you don’t have a severe beating or a criminal case, that’s a sign of incompetence. The Besovich-Gonzalez precedent itself shows that context and the connection between violence and a protected ground matter significantly, not the scale of physical injuries.

If a professional refuses to represent you on the grounds that the harm seems ‘minor’ to them, that’s a reason to print out the precedent, show it to them, and look for another lawyer.