Asylum Eligibility: A Circuit Split Between the Second and Fourth Circuits Based Upon Death Threats Rising to the Level of Persecution Per Se

Authors

Taylor Cochran, West Virginia University College of Law

Document Type

Student Note

Abstract

Asylum eligibility requires applicants to satisfy a three-pronged set of requirements in order to be granted admission into the United States. In a July 2024 decision, the Second Circuit court issued a decision that challenged a line of precedent established by the Fourth Circuit—specifically examining whether death threats rise to the persecution threshold set by the Immigration and Nationality Act (“INA”). The Second Circuit now holds that the receipt of death threats alone is insufficient to establish persecution, thereby making alien petitioners who have received such threats ineligible for asylum or related forms of relief from removal. In contrast, the Fourth Circuit ruled that death threats, when serious and credible, can amount to persecution per se, potentially qualifying petitioners for asylum. This divergence has led to inconsistent outcomes for similarly situated asylum seekers depending on the jurisdiction their case is adjudicated in. This Note discusses the conflicting views between the Second and Fourth Circuit, the differences in statutory interpretation, the potential impacts inconsistent rulings can have on the United States as well as asylum seekers, and realistic policy recommendations moving forward. The United States receives a high volume of asylum applications each year. To remain effective, the system must provide fair judgments for those seeking protection while preventing abuse of the process. This Note further recommends that Congress amend the INA to explicitly list death threats as a qualifying form of persecution. Uniformity across jurisdictions will offer the needed guidance to asylum seekers faced with death threats and those deciding upon their eligibility, in turn allowing more straightforward interactions with the asylum application process.

Recommended Citation

Taylor Cochran, Asylum Eligibility: A Circuit Split Between the Second and Fourth Circuits Based Upon Death Threats Rising to the Level of Persecution Per Se, 128 W. Va. L. Rev. 335 (2025).
Available at: https://researchrepository.wvu.edu/wvlr/vol128/iss1/11