Seeking the Divine: A Proposed Methodology of Religion to Resolve Adjudications Over the Nexus Inquiry in Religious Asylum Claims

University of Chicago Legal Forum Volume 2024 Article 15 2025 Seeking the Divine: A Proposed Methodology of Religion to Resolve Adjudications Over the Nexus Inquiry in Religious Asylum Claims Saloni S. Jaiswal Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Jaiswal, Saloni S. (2025) "Seeking the Divine: A Proposed Methodology of Religion to Resolve Adjudications Over the Nexus Inquiry in Religious Asylum Claims," University of Chicago Legal Forum: Vol. 2024, Article 15. Available at: https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/15 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Seeking the Divine: A Proposed Methodology of Religion to Resolve Adjudications Over the Nexus Inquiry in Religious Asylum Claims Saloni S. Jaiswal† ABSTRACT What is religion, and should immigration courts seek to define religion in the context of asylum claims? Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory provisions of the INA, there is a fundamental problem in the way courts have treated religious asylum claims. Rather than holistically considering religion, courts have instead focused on religion’s fragmentary aspects. This fragmentary understanding of religion has contributed to another legal problem among the courts: the interpretation of the one central reason standard under the INA. This Comment explores the current circuit split between the Fourth Circuit and the Fifth, Tenth, and Eleventh Circuits. While the Fourth Circuit has found that religion can be one central reason for an individual’s religious persecution even if their persecutor’s ultimate goal was unrelated to religion, the Fifth, Tenth, and Eleventh Circuits have narrowly construed the standard, finding that religion or another protected ground in itself must have been the ultimate motivation for the persecutor to target the applicant. To resolve this circuit split, this Comment argues that courts must first adopt an understanding of religion in the context of religious asylum claims in order to determine what it means to be persecuted on account of religion under the INA. To avoid inconsistent reasoning among immigration and federal courts as it relates to the one central reason standard, this Comment proposes a four-part definitional methodology of religion and argues that a but-for causation standard as used in Title VII claims is sufficient in adjudicating religious asylum claims. † B.A., The University of Chicago, 2020; M.A., The University of Chicago, 2021; MPhil, University of Cambridge, 2022; J.D. Candidate, The University of Chicago Law School, 2025. My sincere thanks to Professor Nicole Hallett, who not only sparked my interest in asylum law but also provided invaluable feedback, guidance, and support during the research and writing process; the previous and current staff of The University of Chicago Legal Forum for their diligent work and editorial support over the past year; and my parents, whose love for the written word has always provided me with a continuous source of inspiration. 481 482 THE UNIVERSITY OF CHICAGO LEGAL FORUM I. [2024 INTRODUCTION As it currently stands, religion is a protected category in asylum Under the Immigration and Nationality Act (INA) of 1952,2 individuals can apply for asylum under five protected grounds: race, religion, nationality, membership in a particular social group, and political opinion.3 However, as this Comment will demonstrate, there is a fundamental problem in the way courts have adjudicated religious asylum claims. Specifically, courts have failed to holistically consider religion and have instead focused on fragmentary aspects of religion, with some judges focusing on an asylum applicant’s level of religious knowledge while others look to church attendance, self-identification, or other features of religious identity, practice, and belief. Rather, as this Comment seeks to demonstrate, religion—seen as a comprehensive and integrated way of life—is based on personal, idiosyncratic, and non-visible characteristics. In other words, religion is ultimately a spiritual, ethical, and moral praxis rooted in heterogeneous beliefs, practices, and worldviews. Therefore, when it comes to adjudicating the nexus inquiry in religious asylum claims—through which asylum applicants must argue that they are being persecuted on account of religion—a definitive understanding of religion as a protected ground is necessary to ultimately determine what it fundamentally means to be persecuted on account of religion. Not having such an understanding leads to inconsistent reasoning among the courts. This Comment thus proposes a definitional methodology of religion for the courts to use in the adjudication of religious asylum claims. Asylum is a form of humanitarian relief granted to non-citizens who apply for it in accordance with the INA’s requirements.4 The burden of proof in asylum cases is on the non-citizen applicant to establish that their status as a ‘refugee’ within the meaning of U.S.C. § 1101(a)(42)(A), which defines ‘refugee’ as a person who is outside his or her country of nationality and is unable or unwilling to return to 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.”5 law.1 1 See 8 U.S.C. § 1101(a)(42)(A). Immigration and Nationality Act of 1952, Pub. L. No. 82-414, ch. 477, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.) [hereinafter INA]. 3 Id. § 1101(a)(42)(A). 4 See ANDORRA BRUNO, CONG. RSCH. SERV., R45539, IMMIGRATION: U.S. ASYLUM POLICY 1–2 (2019). 5 See 8 U.S.C. § 1158(b)(1)(B)(i) (“The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of [8 U.S.C. § 1101(a)(42)(A)]”); § 1101(a)(42)(A) (The term ‘refugee’ includes “any person who [has] . . . a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”). 2 481] SEEKING THE DIVINE 483 Individuals seeking asylum in the United States because of past persecution or the fear of future persecution must argue that this persecution is “on account of” one of five protected grounds, as listed in the Immigration and Nationality Act of 1952: race, religion, nationality, membership in a particular social group, or political opinion.6 The words “on account of” constitute the nexus test, which requires a causal connection among the persec (...truncated)