The government has made it significantly harder to obtain asylum based on past persecution.
After the BIA's decision in Matter of V-S-A-, 30 I&N Dec. 37 (BIA 2026), even two fairly serious beatings — one involving a group of attackers and hockey sticks — followed by two visits for medical treatment may still fail to reach the legal level of persecution.
For many asylum applicants from Russia, Ukraine, India, Central Asia, and other countries, this decision is extremely important. In many cases physical violence occurs, but it does not result in broken bones, surgery, or lengthy hospitalization.
Can an asylum case still succeed after V-S-A- if the physical violence was even less severe? Yes. But past persecution must now be built around more than the sentence “I was beaten.” The entire pattern of harm matters: physical consequences, threats, psychological pressure, harm to family members, economic persecution, and other circumstances.
This is the first article in our discussion of Matter of V-S-A-. The decision's second major issue — the use of similar declarations from different cases in evaluating credibility — is better addressed separately.
1. Why Past Persecution Matters So Much
2. What Counts as Persecution
3. The Facts of Matter of V-S-A-
4. What the BIA Held
5. Why Medical Records Do Not Always Help
6. What the Decision Changes in Practice
7. Physical and Psychological Harm Must Be Considered Together
8. How to Prove Serious Consequences
9. What If Your Winning Case Is Already on Appeal?
10. A Typical Russian Case After V-S-A-
11. When Cumulative Harm Can Still Establish Persecution
12. When Physical Violence Alone May Be Enough
13. Conclusion
14. Cases and Legal Authorities
One way to establish eligibility for asylum is to prove that the applicant was already persecuted in the past because of political opinion, religion, nationality, race, or membership in a particular social group.
Once past persecution is established, a presumption arises that the applicant has a well-founded fear of future persecution. The government may then attempt to rebut that presumption, for example by showing a fundamental change in circumstances or the possibility of safe internal relocation.
That is why the question of whether past harm rises to the level of persecution can determine the entire case.
And that is where Matter of V-S-A- raises the bar.
The immigration statute does not provide a complete definition of persecution. For decades, its meaning has been developed through judicial and administrative decisions.
Generally speaking, persecution is an extreme form of harm. Threats to life, torture, prolonged detention, and serious physical violence are among the clearest examples.
In appropriate circumstances, serious psychological pressure and severe economic harm may also be considered.
But discrimination, unfairness, abusive conduct, unlawful government action, or isolated violations of rights do not automatically rise to the level of persecution.
Of course, harm alone is not enough. An asylum applicant must also establish a connection to a protected ground and satisfy the other elements of the claim. In this article, however, we focus specifically on the severity of the harm.
Historically, physical violence has been one of the clearest forms of past persecution. But there has never been a universal bright-line rule, and similar facts could be evaluated differently by different judges.
The applicant was a citizen of India from Punjab and supported the opposition Mann Party. Among other things, he was attracted to the party's anti-drug platform. He participated in political activities and openly expressed his views.
During the first incident, members of a competing political group blocked his motorcycle, knocked him to the ground, and beat him, including with hockey sticks.
He sought medical treatment after the attack.
Several months later, a second attack occurred. He was pushed, beaten, and kicked. He suffered bruising and swelling and again sought medical treatment.
Neither attack resulted in prolonged hospitalization, surgery, or broken bones. The treatment was relatively limited and consisted primarily of medication and routine medical care.
After the second attack, the applicant remained in India for several more months. According to the decision, he received no additional threats and suffered no additional attacks during that period.
The immigration judge found that the two attacks, considered together, amounted to past persecution, applied the resulting presumption, and granted asylum.
DHS appealed.
The BIA sided with the government on the severity-of-harm issue.
The Board concluded that even assuming the applicant's account was truthful, the two incidents did not rise to the level of persecution under the applicable standard.
The BIA placed particular emphasis on the consequences of the attacks.
The applicant sought medical treatment twice, but the medical evidence showed primarily bruising, swelling, and relatively limited treatment. There were no serious bodily injuries, prolonged hospitalization, or surgery.
The Board also considered the fact that the applicant remained in the country for several months after the second attack without further threats or violence.
The BIA therefore reversed the immigration judge's finding of past persecution and remanded the case for further consideration of the remaining issues.
Medical records are usually considered helpful evidence. They can confirm that injuries existed and that the applicant actually sought treatment.
But Matter of V-S-A- demonstrates the other side of the issue.
If medical records document only relatively minor injuries and minimal treatment, the government may use those same records to argue that the consequences of the violence were not severe enough.
That is essentially what happened here. The medical treatment helped confirm that the attacks occurred, but it also allowed the Board to evaluate their physical consequences.
For contrast, the BIA discussed Lopez v. Ashcroft, where the applicant was tied up and left to die in a burning building. There, the act itself was so extreme that the absence of medical treatment did not prevent a finding of persecution.
The Board also discussed Sharma v. Garland, where a short detention, verbal abuse, and some physical mistreatment without serious bodily injury did not require a finding of past persecution.
After V-S-A-, asylum cases based primarily on physical violence become more difficult.
The central problem is the BIA's strong emphasis on the consequences of the harm.
If a person was beaten, pushed, kicked, or subjected to force during detention, but did not suffer serious injuries, prolonged treatment, or other major consequences, the violence alone may not be enough.
This is particularly important in Russian, Ukrainian, and other post-Soviet cases. In our practice, we more commonly see beatings during detention, arms being twisted, baton strikes, mistreatment at police stations, and relatively short periods of custody. Broken bones, surgery, and lengthy hospitalization are much less common.
Another problem is what happened after the last incident. In V-S-A-, the applicant remained in the country for some time without additional threats. The BIA treated that as another factor weighing against past persecution.
So the statement “I was beaten several times” is no longer enough by itself. The entire pattern of harm and the consequences of each incident need to be developed.
This does not mean that a case involving relatively minor physical injuries is automatically lost.
One of the strongest remaining arguments is cumulative harm: all of the harm must be considered together.
If physical violence was accompanied by prolonged threats, intimidation, pressure on family members, threats against children, repeated interrogations, or continuous psychological pressure, those circumstances should not be artificially separated from each other.
For example, in one of our Ukrainian cases, serious threats continued for approximately a year and were eventually followed by an actual attack. Even if the severity of the physical incident were disputed separately, a year of serious threats combined with actual violence changes the overall picture substantially.
In some cases, severe economic harm may matter as well — for example, when a person is effectively deprived of the ability to earn a living because of a protected characteristic or belief.
The central lesson is that after V-S-A-, the case should not be built around a single incident. The entire pattern of what happened to the applicant matters.
If the case still depends heavily on physical harm, the consequences should be documented as thoroughly as possible.
A single medical note listing a diagnosis may not be enough.
Photographs of injuries, witness statements, the length of treatment, inability to work, limitations in daily life, lasting medical consequences, and other objective evidence can all matter.
The important point is to show not only that someone was hit, but what happened afterward.
Even an act that appears relatively minor in isolation can produce extremely serious consequences. For example, a person may simply be pushed, but then strike his head on concrete and spend a month in the hospital. In that situation, the focus shifts from the push itself to the actual severity of the resulting harm.
The goal is to distinguish your facts from V-S-A- and explain exactly why the consequences in your case were more serious.
The most difficult situation may involve applicants who already won in immigration court but whose cases were appealed by DHS.
The appellate record is generally closed. New evidence cannot simply be added as freely as it could have been before the immigration judge.
The problem is that in the past, some cases could be won largely on the fact of physical violence itself. Emotional harm, prolonged threats, and other details may not have received much attention because they did not appear decisive at the time.
After V-S-A-, that can become a problem.
One possible result is remand — sending the case back to the immigration judge for additional consideration. That means additional expense, uncertainty, and potentially years of delay.
If your winning case is currently on appeal and the past-persecution finding was based primarily on physical harm, it makes sense to review the declaration and hearing record carefully, identify what evidence is already in the record, and prepare for the possibility of remand.
Consider a typical example.
A person attends an unauthorized protest against pension reform. Riot police arrive and begin dispersing the crowd. During the crackdown, officers strike the person several times across the back with batons.
There was clearly physical violence. But after V-S-A-, that alone may not be enough.
The injuries are minor. There are no medical records. There are no serious continuing threats.
In addition, the police were dispersing the entire crowd rather than targeting only this individual. That creates a separate question about why the harm occurred and whether it was connected to the person's individual political activity.
Similar facts appear frequently: someone is pushed, roughly detained, struck with a baton, or mistreated at a police station.
Each incident matters, but past persecution does not automatically follow from it.
Now add other facts to the same type of case.
Suppose the applicant is a Jehovah's Witness. After a religious meeting, he is detained, treated harshly at the police station, and struck several times.
If the story ends there, the physical harm may not be severe enough.
But then the phone calls and messages begin. He is told to stop holding religious meetings or face criminal prosecution. He is repeatedly summoned for questioning. Officials make it clear that they know who he associates with and where meetings are held. Later, direct threats of violence begin.
At that point, the physical violence is no longer an isolated event. It becomes part of an ongoing campaign of pressure.
Consider another example: a blogger in Uzbekistan publishes material about local corruption. He is detained, taken to a police station, kicked several times during questioning, and released after a few hours.
Standing alone, that incident may not be enough.
But after his release, government inspectors repeatedly visit his workplace. His employer is told that it would be better not to employ him, and he loses his job. His relatives are questioned. His family is threatened, including threats involving his children's education.
If that pressure continues for a long period of time, the combined physical, psychological, and economic harm may look very different.
There are also cases where physical harm is so severe that little additional evidence is necessary.
In one of our cases, a client was seriously beaten because of his political activity. His arm was broken and a nerve was damaged. After the injury, he had difficulty holding objects and could no longer perform his previous work normally.
There were photographs, medical records, evidence of treatment, and documentation of long-term consequences.
The threats also continued after the beating.
Those facts are substantially different from Matter of V-S-A-. There is serious bodily injury, long-term impairment, and objective documentation.
But cases like this are less common.
Matter of V-S-A- does not mean that physical violence can no longer constitute persecution.
But it does show that the fact of a beating alone may not be enough, even when there were multiple attacks and the applicant sought medical treatment.
The court will look at the severity of the injuries, treatment, lasting health consequences, continuing threats, and the entire history taken together.
So do not stop at the statement, “I was hit.”
The case should show what happened before the attack, what happened afterward, how long the pressure continued, how the applicant's health, employment, and family life were affected, and what evidence supports those facts.
In many cases, those additional circumstances may be the difference between an isolated act of violence and past persecution as a matter of law.
Matter of V-S-A-, 30 I&N Dec. 37 (BIA 2026) — the BIA concluded that the two attacks described in the case, despite medical treatment, did not rise to the level of past persecution in light of the injuries, treatment, and surrounding circumstances.
8 C.F.R. § 1208.13(b)(1) — rules governing past persecution and the presumption of a well-founded fear of future persecution.
Sharma v. Garland, 9 F.4th 1052 (9th Cir. 2021) — an example involving a short detention and physical mistreatment without serious bodily injury that did not require a finding of persecution.
Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004) — an example of extreme harm in which the applicant was tied up and left to die in a burning building; the absence of medical treatment did not prevent a finding of persecution.
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