The basic idea of asylum is simple: Someone comes to your door because they are in danger, because they are afraid. You open your door, and you share your roof. But within this simple idea lies a labyrinth constructed of different sorts of fear. Some fear is grounded in immediate physical danger, some is diffused in general conditions of oppression; some is exaggerated, some completely imagined. Some fears are unrealized, some send you to your grave.
As a legal construct, asylum is less simple. According to the 1951 United Nations Refugee Convention, which set the original international standard for defining refugees and asylum seekers, an asylum seeker is someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Fear is the requisite for asylum, but the definition is based on a fear of a specific entity, the state, and a fear of being persecuted by the state or its representatives. Many of today’s asylum seekers, especially those from Central America and Mexico (which, taken together, account for most of the people seeking asylum in the United States), are fleeing non-state persecutors. According to the United Nations High Commissioner for Refugees’ (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status, “in general, the applicant’s fear should be considered well founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him.”
The US Supreme Court also wrestled with the definition of well-founded fear after Congress adopted the language of the Refugee Convention into law with the 1980 Refugee Act. During the oral arguments for a 1987 case, Immigration and Naturalization Service v. Cardoza-Fonseca, in which a Nicaraguan woman who overstayed her visa appealed to the United States for asylum, attorney Dana Leigh Marks suggested defining such fear according to the “reasonable person” standard: Would a reasonable person in this same factual situation fear persecution upon return to their country? But the justices sought a more quantifiable criterion than reasonableness—they tried to pin down the quivering subjectivity of fear. In his majority opinion Justice John Paul Stevens wrote, “One can certainly have a well-founded fear of an event happening when there is less than a 50 percent chance of the occurrence taking place.”