The following is adapted from a presentation I recently gave at New York Law School as part of a World Refugee Day training program. My thanks to Prof. Lenni Benson, an energetic, imaginative, and brilliant academic and immigration advocate, for including me in the outstanding program.
The following comments are the result of my combined experience representing asylum applicants in private practice (and as a pro bono staff attorney), hearing asylum claims as an immigration judge, and reviewing transcripts of asylum hearings as an attorney at the BIA. My suggestions address the methods employed in preparing an asylum application, as opposed to a strict legal analysis.
Before preparing the asylum application:
I believe that there are three essential steps to be taken before putting pen to paper. First, the preparer must establish a relationship of trust with the client. In doing so, keep in mind that many asylum applicants have no prior experience with lawyers, judges, courts, or legal systems. I was told early in my career that some asylum seekers suspect private attorneys of having ties to the government; I was further instructed that shaking hands and exchanging pleasantries with one’s government counterpart when arriving in court further enforces such belief. It is therefore necessary to spend some time explaining the attorney - client relationship and the duties it imposes on the attorney in hopes of earning the client’s trust.
Secondly, there is a need to address and correct misinformation. Realize that every client will have received all sorts of advice from non-attorneys before meeting you. Some of that advice will have come from well-meaning individuals (such as friends and relatives), but will nevertheless be wrong. Other advice may have come from more nefarious sources. If the client was smuggled into this country, the smuggler will invariably have instructed your client on what to say, and not to say, upon arrival. Of course, the smuggler’s motives are self-serving. The client may also have consulted a non-attorney preparer. As many charge exorbitant fees to prepare asylum applications, it is in their self-interest to embellish or fabricate the client’s story, as their ability to convince the clients that their enhancements turned the claim from a sure loser to a grant will assure them of future referrals. The attorney must therefore take the time to undo whatever misinformation the client previously received.
Lastly, the attorney needs to explain to the client what asylum is, and what it is not. Clients may only be aware that asylum is a means to legal status or employment authorization, without really understanding the true nature of the relief. In some communities, asylum claims are so prevalent that preparers are only familiar with that one form of relief. Of course, there are other higher-percentage routes to legal status. The attorney therefore needs to question the client to determine if asylum is in fact the best strategy for the client to pursue, or if there are other, better possibilities based on family or employment.
Preparing the application:
The first factor to consider is whether an interpreter is needed. In my experience, it is ideal when the asylum applicant and attorney can communicate directly in either English or another language. But of course, it is often necessary to communicate through an interpreter, who may be a friend or relative of the client.
My first-ever case in immigration court involved a detained asylum seeker whose U.S. citizen uncle served as her interpreter. It being my first case, I was careful to question the client in detail, and review and review the application. All was fine when we reviewed it one final time shortly before the merits hearing. I was therefore quite surprised when, a few questions into direct examination, it became obvious that my client was unaware of the contents of her own application. The removal hearing was the first time we had communicated through an interpreter other than the uncle. I unfortunately realized too late that the uncle hadn’t been interpreting; he himself had put forth the claim, and unfortunately, it was a narrative that his niece was unfamiliar with. I thus learned that one has to be very cautious when using an unknown interpreter. When you don’t understand the language, you cannot be certain as to accuracy. However, you should carefully explain to the interpreter that a neutral court interpreter will provide translation at the court hearing, and that it is therefore imperative that the information actually reflect the client’s own words. You should also look for certain telltale signs, such as a seemingly short response by the client followed by a lengthy, detailed translation by the interpreter, or vice-versa.
Next, there is the question of how much detail to include in the written application. I discussed this issue as it relates to specific dates in a prior blog post. Just as with dates, be careful not to include more detail than your client can remember. While we attorneys naturally believe that an abundance of detail helps an applicant meet her burden of proof, too much detail can trip up a client. Also, the statement accompanying the I-589 should be written in a style reflecting the applicant’s own level of sophistication. The likelihood of a positive credibility determination is not helped where the IJ read a statement seemingly written by someone with a PhD in Political Science, only to then hear far less knowledgeable and sophisticated testimony in court from the same applicant.
You will also have to perform the tricky task of probing and cross-examining your own client. Remember, as discussed earlier, your client may have entered into the attorney-client relationship wary of how much to trust or confide in you. The relationship of trust that you hopefully have established by now risks being undone when you begin probing some of the weaker parts of the claim. It is important to explain to the client that you are not asking such questions because you doubt his or her veracity. Explain that these questions will be asked in court, by the DHS trial attorney on cross-examination, and possibly by the immigration judge. In order to provide effective representation, you need to know the answers to these questions in advance. Furthermore, if there are problems with the claim, it is much better for the client that they come out in the attorney’s office than at the hearing on cross-examination, at which point it may be too late for you to control the damage.
Lastly, you of course need to review and edit the application. When I lecture, I often remember the next day a point that I forgot to mention. Also, I have sometimes recounted an event with certainty, only to have my wife point out some flaw in my retelling. In other words, even under the best of circumstances, we omit details or make factual errors. Therefore, review the application as many times as it takes until you feel confident that you have elicited the complete and correct facts.
After completing the application
Documentation is crucial to an asylum claim. Case law has long recognized that those fleeing persecution generally don’t have time to first stop and compile documentation, and that hostile governments aren’t likely to document their intent to persecute an individual seeking asylum abroad. In therefore allowing one to meet his or her burden of proof through testimony alone, the courts stressed the need for flexibility by the trier of fact in light of the barriers faced by asylum seekers in documenting their claims. The passage of the REAL ID Act reaffirmed that an asylum seeker may meet his burden through testimony alone. But it also emphasized that the filing of documentation is not optional, stating that “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided” unless the asylum applicant does not have and cannot reasonably obtain the requested evidence. Section 208(b)(1)(B)(ii), I&N Act (emphasis added).
In other words, under the REAL ID Act, the absence of corroborating evidence can be fatal to a claim, even where the applicant’s testimony is credible. However, the need to submit evidence is not obvious to most asylum seekers. I have reviewed numerous transcripts in which the respondent was asked why a seemingly available document or witness was not presented. Often, the reply was that the respondent had not realized it was necessary. Given the overcrowded immigration court dockets, and the fact that hearings are being scheduled two or more years in advance, continuances to provide the requested evidence may not be granted. It is therefore important to identify the following three types of evidence.
Potential witnesses: Is there anyone in this country who can verify some part of your client’s claim? This could include relatives or friends with personal knowledge of the applicant’s activities, arrests, or beatings in their home country. If the claim is based on, e.g., the client’s religion or political opinion, are there clergy or fellow parishioners, or political party leaders or members, that can testify as to your client’s activities in this country? Of course, if the applicant suffered physical or psychological harm in the form of persecution, a physician or psychologist’s testimony should be offered at the removal hearing.
My luckiest witness experience ever occurred over 25 years ago. When my client and I entered the courtroom at the detention facility for the merits hearing, the court interpreter immediately recognized him, as they had been classmates in their home country. The interpreter told me: “I thought he was dead!” I asked what he meant by that, and the interpreter said that he had been visiting family back home and had read in the newspaper that my client had been detained and was presumed dead. I immediately notified the immigration judge that I wished to call his court interpreter as a witness. We just heard his testimony that day, and then obviously had to continue the case for a new interpreter. The client’s asylum claim was granted. While that is obviously not something that can be planned, I suppose the lesson in that story is that potential witnesses can reveal themselves unexpectedly, and attorneys should keep their eyes open and be prepared to act quickly.
Documentary evidence: The most obvious types of documents include arrest warrants, photos of the asylum seeker participating in e.g. political demonstrations or religious ceremonies; medical records, newspaper articles, or membership cards and letters from organizations in the home country. I offer two observations from my time with EOIR. First, when primary evidence isn’t available, the asylum seeker doesn’t always think to then pursue secondary evidence. For example, if an arrest warrant isn’t available, the Immigration Judge might ask “but did you at least get a statement from your wife as to the fact that you were arrested?” Often, the asylum seeker simply didn’t realize the need, but under the REAL ID Act, the failure to offer such evidence which was not shown to be unavailable can lead to an IJ concluding that the respondent did not meet his or her burden of proof. Secondly, sometimes it seems that the asylum applicant is focused on obtaining a particular document, but less focused on what the document actually says. For example, where a claim is based on the applicant being beaten or arrested or threatened due to his activities with a particular political party, a letter from a party official is often offered in court. However, such letter often leaves out key details of the claim. An IJ might find the omission to support an adverse credibility finding. It is therefore imperative that the attorney review and address such omissions with the client before filing the document with the immigration court.
Country condition evidence: I believe that asylum seekers are so familiar with conditions in their own country that it doesn’t occur to them that to educate the immigration judge on the subject. While Department of State Country Reports are often made part of the record, such reports may lack sufficient detail to corroborate aspects of your client’s claim. The State Department no longer issues Country Profiles. You should therefore look to other sources, including country experts. I will also take the opportunity to plug a country condition database that I helped create, which is found on EOIR’s public website in the Virtual Law Library, at https://www.justice.gov/eoir/country-conditions-research, which was designed to be user-friendly, and includes a topical index and search function.