‘Political Prosecutions’ and U.S. Asylum Law

SCOTUS might look to the INA for guidance in the Trump case

By Andrew R. Arthur on May 1, 2024

On April 25, the Supreme Court heard oral arguments in Trump v. U.S., a case in which the former president is charged with, among other things, criminally conspiring to obstruct the counting of the results from the 2020 election. At issue before the justices is Trump’s claim that he is immune from acts he committed while president, but in any event both he and many of his supporters contend these charges are “politically motivated” — a point alluded to at the argument. The Court may find guidance in U.S. asylum law, which has a full body of precedents on politically motivated prosecutions abroad.

Asylum. Section 208 governs asylum under the Immigration and Nationality Act (INA), and key to this analysis is clause (b)(1)(B)(i) therein, which states: “The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A) of the INA.” Section 101(a)(42)(A) of the INA, in turn, defines the term “refugee” as an alien:

who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. [Emphasis added.]

Thus, to be granted asylum, aliens must prove either that they’ve been persecuted, or have a “well-founded fear of persecution”, on account of one or more of those five statutory “factors”: race, religion, nationality, membership in a particular social group, or political opinion. Poverty, gang violence, crime, and even war — per se — don’t count.

To establish past persecution, applicants must show by a preponderance of the evidence (i.e., that it’s “more likely than not”) that they were persecuted in the past, but what’s “a well-founded fear of persecution” and how does an applicant prove harm could occur in the future?

As the Ninth Circuit has explained:

Where ... a person has not demonstrated past persecution, he or she may still show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. ... A well-founded fear does not require certainty of persecution or even a probability of persecution. Even a ten percent chance of persecution may establish a well-founded fear. [Emphasis added; internal citations and punctuation omitted.]

Persecution. Central to this determination, therefore, is persecution, but unfortunately that term is not defined in the INA. That said, again, there is a rich body of asylum case law discussing and explaining it.

Persecution in this context is usually defined by what it’s not, as best exemplified by the Ninth Circuit’s 2021 opinion in Sharma v. Garland:

“Persecution,” we have repeatedly held, “is an extreme concept that means something considerably more than discrimination or harassment.” ... That conception of persecution, rooted in the term's plain meaning and in the historical objectives of our immigration laws ... grounds our evaluation of cases like Sharma's.

Because it is an extreme concept, persecution “does not include every sort of treatment our society regards as offensive.” ... This means that “some circumstances that cause petitioners physical discomfort or loss of liberty do not qualify as persecution, despite the fact that such conditions have caused the petitioners some harm.” ... Simply stated, “not all negative treatment equates with persecution.” [Internal citations omitted.]

Egregious physical harm clearly motivated by one of those five factors is more likely to be found to be persecution than simple threats of physical violence alone (though both have been found to qualify), but sometimes economic deprivation is sufficient, as may be a loss of liberty due to detention.

“Pretextual Prosecution”. The most common instance in which individuals alleged that they have suffered a loss of liberty through detention in asylum cases (in my experience, at least) are temporary and repeated police detentions.

That said, applicants do allege that incarceration following criminal trials constitutes persecution, which leads me to a concept in asylum law known as “pretextual prosecution”.

Section 208(b)(2) of the INA contains a list of exceptions that bar adjudicators from granting an applicant asylum, one of which is curiously worded, at least at first blush: “there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States”.

In other words, if an adjudicator determines that a crime an alien committed abroad would constitute a “political” crime, then the bar does not apply. That, in turn, opens the door for consideration of the government’s intent in prosecuting the applicant for the crime, and the applicant’s intentions in committing it (assuming it ever really occurred).

That brings me again to the Ninth Circuit, which has explained that “where there is evidence of a legitimate prosecutorial purpose, foreign authorities enjoy much latitude in vigorously enforcing their laws”, but has also held that “if there is no evidence of a legitimate prosecutorial purpose for a government's harassment of a person ... there arises a presumption that the motive of the harassment is political”.

That, of course, requires an adjudicator tens of thousands of miles away from where such prosecution occurred to determine whether the government had a “legitimate prosecutorial purpose” when it took legal action against an asylum applicant.

Fortunately, the State Department publishes annual “Country Reports on Human Rights Practices” for nearly every country in the world to help guide that determination. Coincidentally, the reports for 2023 were released by DOS last week, and here’s what a few of them have to say:


According to Freedom House’s Freedom in the World 2023 report, corruption, bribery, and nepotism were ‘endemic,’ and journalists, labor leaders, and religious figures faced harsh reprisals for speaking out concerning corruption, including arrest, prosecution, and exile.

Burkina Faso:

Significant human rights issues included credible reports of: ... unjustified arrests or prosecutions of journalists, censorship, or enforcement of or threat to enforce criminal libel laws to limit expression.


The maximum pretrial detention was nominally 23 months in cases of “particularly serious offenses.” Authorities, however, ignored requirements governing pretrial detention with impunity, and police and prosecutors used lengthy pretrial detention to punish or pressure human rights defenders to confess to crimes, activists claimed.


Legal experts claimed defendants in politically sensitive cases were less likely to receive a fair hearing from magistrates, who heard most cases, than from higher courts. In lower courts, justices were more likely to make politicized decisions due to the use of threats and intimidation to force magistrates to rule in the government’s favor, particularly in rural areas. In politically charged cases, other judicial officers such as prosecutors and private attorneys faced pressure from high-ranking judges and officials of the ruling party, including harassment and intimidation.

In the oral arguments in Trump, Michael Dreeben, representing the special counsel prosecuting the former president, while attempting to assure the justices that there are sufficient safeguards built into our system of justice to prevent the threat of future prosecution from “unduly chilling presidential conduct”, unleashed the elephant in the room:

We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution under Wayte v. United States. It's not something within the arsenal of prosecutors to do. Prosecutors take an oath. The attorney general takes an oath.

Fortunately, according to the State Department, there are countries that have taken similar initiatives to deter pretextual prosecutions on political grounds, such as Mauritius:

A small number of persons aligned with the political opposition were arrested or charged with crimes that critics characterized as governmental targeting of political opponents. For example, on May 12, prominent attorney Jayarama (Rama) Valayden was arrested and provisionally charged with “perverting the course of justice” after he alleged on a radio program that the government engaged in politically motivated prosecution of opposition supporters. On May 23, a court dropped the charges at the request of the chief public prosecutor, who advised the police commissioner to refrain from “invariably” filing provisional charges with limited evidence and encouraged greater legal consultation between prosecutors and police investigators.

I’ll assume — without confirming — that those officials all took oaths, too, and kudos to the Mauritius chief public prosecutor for being true to his.

“Look Around the World”. None of this should be read as a condemnation of or support for any prosecution of Donald Trump on criminal grounds. No other former president has been charged with a crime (Ulysses Grant received a speeding ticket when he was in office), and maybe none committed actionable offenses, but up to this point in our history they’ve generally been thought to be “off limits”, at least tacitly.

Justice Alito alluded to the political implications of such prosecutions when he asked Dreeben:

Now, if a — an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?

Relevantly, the justice ended that question with the following: “And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”

Asylum adjudicators regularly must “look around the world” and determine whether prosecutions of political opponents have a “legitimate prosecutorial purpose” or are, instead, “pretextual”. Maybe the Supreme Court can look to the INA for guidance in Trump, but regardless, they will likely come away with a new appreciation for a vexing problem that faces immigration judges daily.