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Sample Affirmative Asylum Legal Memo 

Persecution on Account of Religion

The Sample Affirmative Asylum Legal Memo from Refugee Projects might be submitted at the affirmative stage to the asylum office. The facts are integrated within the legal arguments, rather than set out in a separate section. The supporting documents are referenced for the content they prove. There is less legal argumentation than in a full brief filed before the immigration court, and there is less case law cited. The focus is on stating the relevant facts, organized around how they support each claim of the legal theory.



Persecution on Account of Religion 
Ms. K suffered past persecution on account of her religion and has a well-founded fear of future persecution as a result. Ms. K identifies as non-Muslim; she has never considered herself religious or an adherent of Islam. Further, Afghanistan is a non-secular state, and both the former government of the Islamic Republic of Afghanistan and the current Taliban ruling party adhere to Islamic law. If Ms. K made her religious views public, or even erred in pretending to be sufficiently observant, she would not only be unable to get a job and be treated poorly by other Afghans, but she could be arrested or subject to capital punishment. [Exh. I]. In Afghanistan, apostasy—the abandonment or renunciation of a religious or political belief— is treated as a capital offense. Ahmadshah v. Ashcroft, 396 F.3d 917 (8th Cir. 2005). 

Ms. K, a women’s rights activist and professor, had closely followed an incident involving a woman named Farkhunda Malidzada, who was publicly lynched by a mob in Kabul in 2015 for not being sufficiently Muslim.  Even though she was Muslim, the crowd, encouraged by the Taliban and conservative religious elements, found her insufficiently observant according to their standards.  Her killing and the reason behind it are well-known, so throughout her life in Afghanistan, Ms. K worried that she too would be killed if those around her knew she wasn’t Muslim. As a result, Ms. K tried to appear outwardly conservative in order to survive and tried to conceal her true self to meet the expectations of the community. Despite the changes she attempted to make, Ms. K saw that people knew or suspected that she was not an adherent of Islam because of her non-conforming dress and her lack of mahram—the Islamic requirement in Afghanistan that limits a woman's mobility unless she had a male relative with her. Further, they assumed incorrectly that, since she was visibly Hazara, that she was a member of the Shi’a faith, already a problem for predominantly Sunni Afghans. Ms. K was constantly prohibited from moving around in the world, entering places of business, historical sites, and places to eat because of the visible combination of these factors – she is a single female, with no mahram, visibly Hazara, and insufficiently adherent to Sunni Muslim expectations.  Police regularly threatened to jail her, even when she tried to have a male friend with her in public to protect against that perception, because she was not adhering to mahram.  After the Taliban came to power, no man would dare offer her that assistance.   

In August of 2021, when the Taliban took over Afghanistan’s capital city of Kabul, Ms. K was forced to wear a burqa so that she could attempt to remain safe under Taliban rule. She received a voice mail from the Taliban threatening her. [Exh. C] It said that she had to come to work the next day, because they wanted to prove to the western media that women would still be permitted to work – they wanted to show her off as evidence that the “new Taliban” would be better – but the message ended by saying that when she came to work, if she wasn’t sufficiently observant in her dress, they would “cut her into pieces.”   After consulting with her lawyers who were already trying to help her leave Afghanistan, she obtained a burqa and wore it to work the next day.  Before her class began, however, her boss told her to go home saying that she would not be safe at the school.  Within days, she was fired, along with all other female professors and women in public facing jobs.  Even returning home from school that day, she was threatened by a man with a gun outside of her apartment who told her that things were changing and that people “like her” would not be alive under the new regime.  Ms. K suffered past persecution in the form of threats and violence and economic limitations so severe as to not be able to survive, on account of both her imputed religion and her non-adherence to Islam. Chen, 20 I&N Dec. 16. If forced to return to Afghanistan, Ms. K has a well-founded fear of future persecution.  She reasonably believes that she would suffer the same fate as Farkhunda Malidzada and be killed.  

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