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Friday, 12 August 2011

The new asylum fraud myth in the US - and the story that isn’t being told

The revelation that the woman who accused former International Monetary Fund Chief Dominique Strauss-Kahn of rape had allegedly lied on an asylum application has given the news media a new angle to cover immigration in America. The New York Times and The New Yorker magazine published prominent articles in recent weeks using a handful of anecdotes about men and women who have filed falsified asylum claims and painting a picture of an asylum system rife with fraud.

These stories imply that all one needs to do to obtain asylum in the United States is to hire a coach who can help fabricate a plausible claim. But the coverage provides an incomplete and inaccurate picture of the U.S. asylum system.

A few immigration attorneys and academics have reacted with compelling op-ed pieces, putting asylum fraud in perspective and stirring sympathy for those who commit it. But even their responses downplay an important reality: For the vast majority of applicants, establishing a winning asylum claim is extremely difficult.

The current asylum system presents significant obstacles to due process that put legitimate asylum seekers at risk. The numerous laws and regulations that exist to prevent asylum fraud often make it impossible even for individuals with strong, well-documented claims to obtain protection.  The Congressional Research Service reported this spring that in recent years, U.S. Citizenship and Immigration Services and the immigration courts have approved only 30 percent of all asylum cases they hear.

Here is a brief rundown of some of the key challenges every asylum seeker must overcome:

1: Know that asylum protection exists
Men and women who come to the United States to flee persecution often spend years living in fear and suffering residual trauma before they realize that a legal system exists to offer them protection. When they finally learn about asylum, they usually have missed the one-year application deadline, an arbitrary cut-off date imposed by Congress which automatically makes asylum seekers ineligible for protection unless they can meet the high standard of evidence required to convince a judge that they qualify for a waiver. Every year, thousands of asylum seekers are denied protection based on this technicality alone.

2: Find a lawyer who knows the system
The National Immigrant Justice Center (NIJC) represents hundreds of men, women, and children asylum seekers each year through a broad network of pro bono attorneys from leading private law firms. These attorneys put countless hours and resources into preparing strong asylum cases so that their clients meet the high standards of proof necessary under U.S. asylum laws. For asylum seekers who do not have representation or whose attorneys do not have big-firm resources, the obstacles to obtaining asylum can be insurmountable. In fact, a study by the Government Accountability Office found that asylum seekers with legal representation are three times more likely to succeed in their claims than those without.

3: Establish credibility
Once they make it to the court room, the first challenge asylum seekers must overcome is to convince their judges or asylum officers that they are credible. U.S. asylum law allows adjudicators to find asylum seekers incredible based on any factor that the adjudicators deem relevant, ranging from an applicant’s demeanor to her inability to remember the exact day of the week that she was arrested seven years before. While most people would find such a memory lapse reasonable, adjudicators often rely on these factors to deny asylum, often resulting in unfair decisions. U.S. Circuit Courts of Appeals have frequently ruled that immigration judges erroneously denied asylum based on trivial or easily explained discrepancies. 

4: Document everything
Even after establishing credibility, asylum seekers must provide significant corroboration for their claims.  U.S. asylum law allows adjudicators to demand corroborating evidence for any aspect of a claim, and often adjudicators hold asylum seekers to an unrealistic corroboration standard. Case in point: Both the Times and New Yorker articles imply that women can obtain asylum by falsely claiming to have suffered female genital mutilation (FGM). But the articles do not elaborate on the extensive evidence required to corroborate such claims. Applicants must submit forensic medical evaluations which corroborate that they underwent FGM and detail the exact type of FGM performed. In fact, adjudicators regularly expect asylum seekers with any claims involving past harm to corroborate their stories with medical reports and forensic medical evaluations.

5: Get the right judge
Even when cases are well-prepared and well-presented, asylum adjudicators have nearly unfettered discretion to grant or deny protection. Researchers have found that decision-making in asylum cases can be so arbitrary that the outcome of even the most legitimate and well-prepared case often depends on what judge or asylum officer hears it.

Some level of fraud is a reality in any system, from welfare to mortgage, that provides life-sustaining benefits. But focusing only on the small number of individuals who file false asylum applications misrepresents another reality of the U.S. asylum system: the laws are harsh, and bona fide asylum seekers must overcome increasingly difficult obstacles to obtain protection. Failing to tell this side of the story harms the many men, women, and children who have suffered unspeakable horrors in their home countries and fled to the United States to survive.
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