Establishing asylum nexus for individuals fleeing an invasion
On February 24, Russia launched a full-scale invasion of Ukrainian territory, marking the largest military operation in Europe since the end of World War II. More than 5 million refugees have since fled Ukraine, millions more have been displaced, and nearly 3,400 Ukrainian civilians have lost their lives. Although Poland, Romania, Moldova, Hungary, and Slovakia have taken on most of the refugees, the U.S. recently pledged to take 100,000 Ukrainians. The specifics of how the U.S. plans to admit Ukrainian refugees are still unclear. Still, it’s expected that many eligible Ukrainians will come with the legal status of asylees or refugees.
Though it may seem obvious that those fleeing Ukraine need humanitarian protection, our laws do not explicitly provide refuge for citizens of countries subject to an invasion and occupation. Still, if we interpret the eligibility grounds for asylum and refugee status broadly, there should be little doubt that most Ukrainians ought to qualify. In adopting such a broad interpretation, the U.S. has an opportunity to establish a new precedent for granting asylum and refugee status to individuals fleeing conflict zones.
Generally speaking, war and excessive violence alone are not enough to establish eligibility for asylum or refugee status because the harm is incidental — individuals caught in the crosshairs of violence are not harmed because of their religion or race; they are just unfortunate victims of the surrounding chaos.
To be eligible for asylum or refugee status in the U.S., an applicant must establish past persecution or a well-founded fear of future persecution on account of one or more of the five protected grounds, including: 1) political opinion; 2) nationality; 3) race; 4) religion; or 5) membership in a particular social group. Additionally, the applicant has to establish that the persecutor harmed or planned to harm them because the applicant possesses — or the persecutor thinks the applicant possesses — characteristics of one or more of the protected grounds. Establishing persecution or fear because of one of the protected grounds — that is, nexus — requires demonstrating that the persecutor was, or will be, motivated to harm the applicant because of one of the five grounds. It’s demonstrating this nexus for each individual that makes the invasion of Ukraine tricky.
To properly determine whether persecution is on account of a protected ground, you must identify the persecutor, the harm suffered or feared, whether the protected grounds are actual or imputed, and the motivation of the persecutor. The persecutor in this case — Russia and its military — has killed thousands of Ukrainians and will likely continue the lethal assaults for months or even years. It seems reasonable that nationality might provide the protected grounds for all Ukrainians, but nationality grounds may be too broad.
For the purpose of determining asylum or refugee status, nationality includes not just “nationals” or “citizens” but also ethnic groups, linguistic groups, and those with common cultural beliefs and traits. Traditionally, humanitarian claims for protection based on nationality are recognized for distinct subgroups within a country, not every citizen of a nation-state. Furthermore, in most cases, claims based on nationality overlap with another category of protected grounds.
Using nationality as grounds for protection might also be overly inclusive because it could make Ukrainians already living in different countries eligible. This could include individuals who fled to other countries because of the invasion, and those who may have left at a different time for myriad reasons. To differentiate the two groups would likely require time-intensive administration. And finally, nationality grounds would likely necessitate in-depth interviews for all applicants to determine whether any Ukrainians supported, participated in, or were sympathetic to the Russian invasion. Though possible, it again would be incredibly time-consuming.
A more discerning approach to finding protected grounds for asylum and refugee claims by Ukrainians is to use political opinion. In some instances, political opinion can be imputed based on behaviors, even those not meant to express anything at all, least of all something political. Here, there are two options. The first is that Russia espouses that they must drive out Ukrainian Nazis — though no evidence exists this is a necessary endeavor. The second is that Russia asserts that Ukrainians who remain in-country necessarily do not support — or are actively resisting — Russia’s political takeover of Ukraine, making them enemies and subjecting them to brutal war crimes.
Vladimir Putin publicly justified the invasion of Ukraine because he alleged Ukraine is controlled by “little Nazis,” attempting to apply a WWII framework to the current invasion.“Putin has repeatedly said that the Ukrainian units fighting back against Russian forces are not regular troops but neo-Nazi battalions. Russian state television blares from morning until night with talk of a quasi-holy struggle against Fascism.” Drawing on Putin’s assertions, the Russian state news speaks of Ukrainian Nazi soldiers capturing Russian soldiers. In turn, Russians and the military believe the tales told about widespread fascism in Ukraine. Together, these statements input the belief on the part of the Russian government and military that most Ukrainians are members of the Nazi party or support their pro-Nazi government, and are subject to violence because of that political opinion.
Additionally, Putin has made clear that those who remain in Ukraine demonstrate through their behavior that they are resisting the political overthrow of their government, the dictatorship Putin seeks to impose on the Ukrainian people, and the violent strategy Russian is utilizing in its invasion to reclaim Ukraine as Russian territory. Any Ukrainian that does not support that goal, regardless of their actual political opinion, has been targeted by Russian forces violently and indiscriminately. Despite Putin’s claim to be targeting the alleged Nazis in the Ukrainian government, Ukraine’s information minister Oleksandr Tkachenko wrote on Facebook that the goal is to “destroy all Ukrainians.” All signs point to this as an accurate reality.
Two months into the war, Russian aggressors are indiscriminately targeting Ukrainians who chose not to flee, even if they are civilians. According to the New York Times, Russian forces have destroyed “at least 1,500 civilian buildings, structures, and vehicles,” including cultural centers, schools, residential buildings, and hospitals. In Mariupol, “Russian forces bombed the city’s Drama Theater, where hundreds of people had been sheltering […]. The word “children” was written in Russian in giant letters on the pavement on both sides of the building, clearly visible from the sky.” And horrifying images and stories of atrocities and murders committed by Russian forces have emerged from the Kyiv suburb of Bucha. There is thus plenty of reason to believe that Russian forces have committed gross violations of international law.
Broadly interpreted, the evidence of imputed political opinion may be enough to establish a nexus alone. Combined with evidence of war crimes, the claims should carry more legal weight. When noncombatants — civilians — are intentionally targeted by the military, it is critical to determine the shared characteristics that those individuals may possess. Generally, illegitimate acts of war enhance the need to provide urgent humanitarian protection and an immediate examination for evidence of war crimes. Though there is no legal precedent for how proof of these war crimes should enhance a claim of imputed persecution, there is an ethical reason to consider it — and an opportunity to create a justifiable legal precedent.
All things considered, it is clear that the Ukrainian population warrants asylum protection, and that, in the case of this specific invasion and the accompanying civilian targeting, interpreting “political opinion” broadly addresses the practical need to provide humanitarian relief to those fleeing a specific aggression.
Civil war or war in an applicant’s country does not preclude a finding that the applicant is eligible for asylum or refugee status, however, if they are at a higher risk related to a protected ground. See Mendoza-Pablo v. Holder, 667 F.3d 1308 (9th Cir. 2012).
INA § 101(a)(4).
INA § 101(a)(42); INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
Regalado-Escobar v. Holder, 717 F.3d 724, 729 (9th Cir. 2013) (“When a political organization has a pattern of committing violent acts in furtherance of, or to promote, its politics, such strategy is political in nature…Therefore, opposition to the strategy of using violence can constitute a political opinion that is a protected ground for asylum purposes.”)
See Grover Joseph Rees III, INS Office of General Counsel, “Legal Opinion: Continued Viability of the Doctrine of Imputed Political Opinion,” memorandum to Jan Ting, acting director, Office of International Affairs, (Immigration and Naturalization Service: Jan. 19, 1993), at 12.