In KC v. Garland, ____ F.4th ____ (2d Cir. 2024), the U.S. Court of Appeals for the Second Circuit addressed whether death threats are sufficient to establish that an asylum applicant has faced past persecution. In a unanimous opinion authored by Circuit Judge Richard Sullivan and joined by Chief Judge Debra Ann Livingston and Senior Circuit Judge José Cabranes, the Second Circuit rejected a per se rule that an asylum applicant who has received death threats has demonstrated past persecution. Instead, in line with prior Second Circuit precedent, death threats "will constitute past persecution only if the applicant can point to aggravating circumstances indicating that the death threat was 'so imminent or concrete' or 'so menacing as itself to cause actual suffering or harm.'" 2024 WL 3433555 at *4 (quoting Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020)). Going forward, it will behoove asylum applicants and their counsel to present evidence of these aggravating circumstances when seeking asylum.

Second Circuit Approach to Past Persecution in Asylum Claims

In the Second Circuit, an asylum applicant bears the burden of proving eligibility for asylum. Id. at *3. One way to meet that burden is to demonstrate a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. An applicant that can demonstrate past persecution is "presumed to have a well-founded fear of [future] persecution." Id. (quoting Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021). The government may rebut that presumption by showing that there has been a "fundamental change in circumstances" or that the applicant can avoid future persecution by relocating to a different part of the country. Id. (quoting Singh, 11 F.4th at 114).