Some Comments on "Pattern or Practice of Persecution"

I was asked to organize, moderate, and speak on the “Advanced Asylum Topics” panel at the August 2016 Immigration Judges Training Conference in Washington, DC.  My greatest achievement in putting together that panel was to include two presenters whom I have known, admired, and drawn inspiration from for more than twenty years: Prof. Karen Musalo, Director of the Center for Gender and Refugee Studies (CGRS) of the Univ. of Cal. - Hastings College of Law in San Francisco, and Hon. Randa Zagzoug of the New York Immigration Court.  Both provided probing, open-minded analysis of how the asylum laws apply to vulnerable populations.

The following is an article version of my more humble presentation, which was previously published in the FBA’s immigration newsletter The Green Card, expertly edited by Hon. Larry Burman.  Although “pattern or practice” claims don’t arise with much regularity, I’ve always been fascinated by the topic.  I hope the following helps clarify an infrequently discussed provision of asylum law.


Federal regulations guiding the adjudication of asylum claims contain the following provision:

In evaluating whether the applicant has sustained the burden of proving that he or she has a well-founded fear of persecution, the asylum officer or immigration judge shall not require the applicant to provide evidence that there is a reasonable possibility he or she would be singled out individually for persecution if: (A) The applicant establishes that there is a pattern or practice in his or her country of nationality…of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and (B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.1

A slightly different version of the above was first introduced as part of the asylum regulations that became effective on October 1, 1990.  In reviewing the body of case law that has developed since, I would like to offer several comments.


  1. The concept predates the regulation.

In INS v. Cardoza-Fonseca, its landmark 1987 decision establishing that the burden of proving a “well-founded fear of persecution” is significantly less than fifty percent, the Supreme Court relied on the following scholarly example:

“Let us...presume that it is known that in applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp… In such a case it would be only too apparent that anyone who managed to escape from the country would have ‘well-founded fear of being persecuted’ on his eventual return.”2

While the Court’s decision predates the “pattern or practice” regulation by more than three years, the example it relies on (which predates the regulation by 24 years) presents a classic “pattern or practice” scenario. The hypothetical establishes (1) a group, i.e., all adult males in a particular country; and (2) information establishing systemic persecution of one in ten members of such group.  all members of the group therefore have a well-founded without the need to explain their individual circumstances.

In its precedent decision implementing Cardoza-Fonseca’s holding, the BIA used language associated with a “pattern or practice” analysis:

“Where the country at issue in an asylum case has a history of persecuting people in circumstances similar to the asylum applicant’s, careful consideration should be given to that fact...A well-founded fear, in other words, can be based on what has happened to others who are similarly situated.”3

In light of the limited guidance provided by post-regulation case law, reference to such earlier cases is helpful in establishing e.g. the necessary risk the group must show under section (A) of the above regulation (in Cardoza-Fonseca, one in ten sufficed), or the size that such a group may be (i.e. in the Cardoza-Fonseca example, all adult males in a country was not deemed too large a group).


2. The Regulation Does Not Create a Lesser Burden of Proof

An asylum applicant’s burden of proof is not satisfied by the random threat of harm citizens are generally exposed to, even where such random threat is elevated by factors such as a highly oppressive government, civil conflict, or the existence of armed groups that the government is unable to control.  An asylum applicant must instead establish a risk of persecution elevated above random to the point that a reasonable person would fear persecution.  Since the Supreme Court’s decision in Cardoza-Fonseca, an asylum applicant demonstrating a one-in-ten risk of persecution has established a fear sufficiently elevated to make its avoidance reasonable; such level of fear has been termed “well-founded.”

While the same one-in-ten risk is the burden of proof borne by all asylum applicants, the above case law, treatises, and regulation have established that there are different ways to meet this threshold.  While such level of fear is most commonly reached through threats or other encounters personally experienced by the asylum seeker, the above sources recognize that persecution aimed at all members of a group may become systemic and pervasive enough to elevate the fear for all identifiable members of such group to the appropriate level without the need for personally encountering a specific fear-invoking incident.


3. The Ninth Circuit’s “Disfavored Group” Analysis Explained

The Ninth Circuit’s case law has provided significant analysis of this concept.4  The court has explained that a well-founded fear may be demonstrated in one of two ways: (1) through a “pattern or practice,” or (2) by proving membership in a “disfavored group, and “showing that she, in particular, is likely to be targeted as a member of that group.”5

What is meant by a “disfavored group?”  As the Ninth Circuit explained in Kotasz v. INS, “[g]roup membership is an aspect of nearly all asylum claims, not a special problem limited to pattern or practice cases.”  Noting the five protected grounds enumerated in the Refugee Act, the court observed that four (race, religion, nationality, and membership in a particular social group) “relate to group characteristics, and even...political opinion is largely group-based, although the group may not be formally structured or easily defined.”6  The court thus concluded that “[p]roof that the government...has discriminated against a group to which the petitioner belongs is, accordingly, always relevant to an asylum claim.”7

The court has further explained that where the targeting of the disfavored group does not rise to the “pattern or practice” threshold, the “well-founded fear” analysis is conducted on something of a sliding scale (the author’s term), in which the two factors of (1) the degree to which the disfavored group is mistreated, and (2) the applicant’s “individualized risk of being singled out for persecution...operate in tandem.  Thus, the ‘more serious and widespread the threat’ to the group in general, ‘the less individualized the threat of persecution needs to be.’”8

In this author’s opinion, there is nothing controversial about the above statement.  An asylum applicant needs to show at least a one-in-ten risk of persecution.  Let’s assume a hypothetical in which an asylum applicant is trying to establish a well-founded fear of persecution because she is a practicing Christian in Country X.  If the country condition materials of record make no mention whatsoever of mistreatment of Christians in Country X, and state that the government there protects the rights of all religious groups to practice their faiths freely, then obviously such reports have moved the applicant no closer to meeting her burden of proof.  If she is to establish the necessary risk, she must do it entirely through her personal experiences (e.g. threats, attacks, etc.) that would give rise to her individualized fear of persecution.

Alternatively, if country condition evidence of record establishes that Christians are regularly attacked, arrested, and threatened with imprisonment unless they convert to the majority religion, then the applicant has already made headway towards establishing her one-in-ten risk before she has even begun to detail her own personal experiences.  Nevertheless (and perhaps due to a perception that the Ninth Circuit has created an extra-regulatory category of asylum claimants entitled to a lower evidentiary standard), other circuits have taken a less than favorable view of the Ninth Circuit’s approach.9

Interestingly, the First Circuit has similarly found that “evidence short of a pattern or practice [of persecution] will enhance an individualized showing of likelihood of a future threat to an applicant’s life or freedom,” but has stated that such approach is distinct from the Ninth Circuit’s “disfavored group” approach.10


4. What Triggers a “Pattern or Practice” Finding?

In the 26 years since the publication of the regulation, the courts have provided little guidance as to what is required to trigger a “pattern or practice” finding.  Case law has stated that persecution must be “systemic, pervasive, or organized” to constitute a “pattern or practice.”11  Courts have also held that the standard does not require that every member of the vulnerable group must face persecution.12  In this author’s analysis, such “universality” requirement (when combined with the need to establish inclusion in, and identification with, such group) would require an asylum applicant invoking the “pattern or practice” regulation to establish a 100 percent chance of persecution (thus imposing a burden of proof ten times greater than “well-founded fear”), which is clearly not the intent of the regulation.

a. Country Condition Information

Circuit courts have based “pattern or practice” determinations on country condition information of record, often citing the Department of State’s Country Reports on Human Rights Practices.  For example, the Third Circuit cited to a State Department country report indicating a sharp decline in violence against ethnic Chinese Christians after 1998, and its statement that “the Indonesian government officially promotes religious and ethnic tolerance” in concluding that no “pattern or practice” of persecution existed.13  However, the Fifth Circuit relied on different portions of a similar report to reach the opposite conclusion.14  The Seventh Circuit has stated that the State Department Country Reports may be too generalized for the purpose of “pattern or practice” determinations, noting that such reports “may reveal which groups are at greatest risk, but not how much risk and not how the country’s forces operate day to day.”15

 b.  The Seventh Circuit’s Proposal

In Banks v. Gonzales, a panel of the Seventh Circuit called on immigration officials to emulate the system employed by the Social Security Administration in disability determinations.  According to the Seventh Circuit, the SSA employs detailed regulations (i.e. “The Grid”), which include “those that classify some conditions as automatically disabling.”  Where the regulations “don’t provide definite resolution,” the SSA employs its own “vocational experts” in making determinations.  The court stated that the “pattern or practice” regulation “cries out for systemic decisions.  While Taylor ruled Liberia, all ethnic Krahns (and Unity Party supporters) should have been treated the same way.  Similarly, adherents to the Ahmadi sect either are or are not persecuted in Pakistan.”  The court concluded that such groups of claims “could be handled by the sort of detailed regulations that the Social Security Administration uses.  Others, of the kind that arise less frequently, could be resolved with the assistance of country specialists along the lines of vocational experts.”16

Interestingly, another panel of the Seventh Circuit stated in a subsequent published decision that an asylum applicant’s claim of a pattern or practice of persecution against ethnic Chinese Christians in Indonesia was not precluded by the court’s negative determination of the same argument in a prior published decision.  The court explained that “[a]s a general matter, our holding in one fact-specific case does not bind us in another fact-specific case when the two cases have different records.”  The court continued that although it again reached the same conclusion in the instant case, such holding “does not decide the issue in future cases,” noting that “later petitioners may develop different records” containing better information, “or conditions in Indonesia may worsen.”17

      c.    Legislative Determinations?

Legislation commonly referred to as the “Lautenberg Amendment,” creates a presumption of eligibility for individuals applying for refugee status overseas pursuant to section 207 of the I&N Act.  The original legislation identified for such status religious minorities in the former Soviet Union “who share common characteristics that identify them as targets of persecution in that state” on account of a protected ground.18  The law was amended in 2005 to also include members of religious minorities in Iran.  The law was last renewed by Congress in December 2015.

Does the identification of such groups by Congress as “targets of persecution” based on their shared common characteristics satisfy the requirements of section (A) of the regulation?19  Does such language alternatively fall short of establishing a “pattern or practice,” but still reduce the degree of individualized a fear a member of such group must establish under the Ninth Circuit’s “disfavored group” analysis?  Or does the fact that such statute applies only to overseas refugee processing under section 207 of the I&N Act mean that its content should carry no evidentiary weight in asylum proceedings under section 208?

In Halaim v. INS,20  the petitioner argued that “the Lautenberg Amendment...represents a congressional declaration that Ukrainian Pentecostals suffer in their native land from a pattern or practice of persecution based on religion.”21  The Ninth Circuit found such argument “creative but not persuasive.”  Although no other circuit has specifically addressed whether the Lautenberg Amendment can trigger a “pattern or practice” finding under the regulation in a published decision, a concurring opinion contained in the Seventh Circuit’s decision in Kossov v. INS contained the following language:

Although [the Lautenberg] Amendment does not directly apply to the Kossovs' case, the Amendment evidences Congress' belief that Evangelical Christians living in Latvia continue to be “targets of persecution...” I believe that on remand, the IJ should analyze the claim by granting the Kossovs the presumption in favor of asylum to which they are entitled, and by allowing the INS to present whatever evidence it has to rebut that presumption.22


5. Conclusion

We await further guidance in future decisions of the BIA (which has not issued a published decision finding a pattern or practice of persecution) and the circuit courts.



1.  8 C.F.R. §§ 208.13(b)(2)(iii), 1208.13(b)(2)(iii).

2.  INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (citing 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966).

3.  Matter of Mogharrabi, 19 I&N Dec. 439, 446 (BIA 1987).  See also, e.g. Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir. 1985) (“threat of persecution ‘need not be based on the applicant’s own personal experiences…’” (citing ¶ 43 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979)).

4.   See Sael v. Ashcroft, 386 F.3d 922 (9th CIr. 2004); Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004); Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999); Hoxha v. Ashcroft, 319 F.3d 1179 (9th CIr. 2003); Singh v. INS, 94 F.3d 1353 (9th Cir. 1996); Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994).

5.   Sael v. Ashcroft, supra at 925.

6.   Kotasz v. INS, supra at 853.

7.  Ibid

8.  Sael v. Ashcroft, supra at 925 (citing Mgoian, supra at 1035 n.4).

9.   See A. Fleming, “Organized Atrocities: Asylum Claims Based Upon a ‘Pattern or Practice’ of Persecution,” 7 Immigration Law Advisor No. 3 (March 2013) at 9.

10.   Sugiarto v. Holder, 586 F.3d 90, 97-98 (1st Cir. 2009).

11.   Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005); Ngure v. Ashcroft, 367 F.3d 975, 991 (2004); Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995); see also Matter of A-M-, 23 I&N Dec. 737, 741 (BIA 2005) (finding the threat to Chinese Christians not “so systemic or pervasive as to amount to a pattern or practice of persecution” (citing Lie v. Ashcroft, supra).

12.   Avetova-Elisseva v. INS, 213 F.3d 1192, 1201 (9th Cir. 2000); Makonnen v. INS, supra.

13.   Lie v. Ashcroft, supra at 537-38.

14.   Eduard v. Ashcroft, 379 F.3d 182, 192 (5th Cir. 2004.

15.   Banks v. Gonzales, 453 F.3d 449, 453 (7th Cir. 2006).

16.  ibid

17.  Ingmantoro v. Mukasey, 550 F.3d 646, 651 (7th Cir. 2008).

18.  See Foreign Operations, Export Financing, and Related Program Appropriations Act of 1990, Pub.L. No. 101--167, § 599D(a), 103 Stat. 1195, 1261-62 (1989) (codified as amended at 8 U.S.C. § 1157 (1994 & Supp. IV. 1998)).

19.   The author advocated for such interpretation in a 1994 article, J.S. Chase and S.Marks, “‘Pattern or Practice’-Based Asylum Claims,” AILA 1994-95 Annual Handbook, vol. 2 (Advanced Topics), pp. 633, 640.

20.   358 F.3d 1128 (9th Cir. 2004).

21.   Ibid at 1134.

22.   Kossov v. INS, 132 F.3d 405, 409 (7th Cir. 1998) (Rovner, Circuit Judge, concurring).


From the Archives: My Wall St. Journal Op-Ed (Sept. 9, 1993)

U.S. Asylum History, Part II