‘Can One Still Call It Ignorance or Bias? Nexus Test Modified, but Courts Still Fail to Address International Law Under the International Religious Freedom Act’

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In enacting the International Religious Freedom Act of 1998 (IRFA), Congress modified the nexus test that determines eligibility for asylum on account of religious persecution. In recognizing the “global scourge” of religious persecution, Congress sought to reduce the unfairness and bias in asylum adjudications that had occurred under pre-IRFA law. Courts have traditionally held that international refugee law protections are incorporated into United States domestic law, and therefore, not explicitly applicable in U.S. courts. Through IRFA, however, Congress instructed the courts to take a different approach. Congress directed all involved in asylum adjudication to invoke international law’s protection of religious liberty under its definition of religion and its broad interpretation of religious persecution. Since 1992, eligibility for asylum under United States asylum law has been constrained by the Supreme Court’s decision in INS v. Elias-Zacarias (1992) which required applicants seeking asylum on account of political opinion to possess a political opinion that the persecutor intended to thwart through persecution. This has led courts to deny relief when intent could not be proven and undermined protection when neutral laws of general applicability harmed applicants. Subsequent courts have expanded the nexus test to apply to asylum’s other grounds of protection: race, religion, nationality, or membership in a particular social group. When Congress instructed judges and adjudicators to examine religious persecution cases under international law through IRFA, it modified the nexus test for religion. This chapter first explains how IRFA modifies the nexus test for religious persecution. The chapter next examines the one federal case that followed IRFA as Congress intended, although that case was later vacated on other grounds. The chapter next explores how the application of international law would have impacted cases if IRFA had been applied as Congress instructed. The chapter concludes that even if courts determine IRFA did not modify the nexus test, IRFA requires adjudicators to demonstrate more sensitivity to the many ways religion is practiced and how religious persecution harms the liberty of those attempting to live faithful lives.

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Migration and Religious Freedom, Essays on the Interaction Between Religious Duty and Immigration Law