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The author is a partner at Williams & Connolly LLP, Washington, DC.
Our representation of Ms. N included an eggplant. Ms. N and her husband are strictly opposed to female genital mutilation, which is widely practiced in their home country and which Ms. N herself had suffered. Despite their opposition, they were unsuccessful in preventing their older daughter from being mutilated. While Ms. N’s husband was away traveling, the elder women in her village took the girl at knifepoint, held her down, and cut off her genitals. When it was over, the women bounded the girl’s legs together with rope to stem the vaginal bleeding, tying the rope so tightly that her legs began bleeding from various lacerations. For the next week the young girl, like her mother before her, sat outside on her doorstep next to an eggplant—the eggplant signifying that she had had her “transformation.” Among many other fears, Ms. N feared that her other daughters would be subjected to the same fate if the family was returned to their home country. So, she applied for asylum in the United States.
When it was over, the women bound the girl’s legs together with rope to stem the vaginal bleeding, tying the rope so tightly that her legs began bleeding from various lacerations. For the next week, the young girl, like her mother before her, sat outside on her doorstep next to an eggplant—the eggplant signifying that she had had her “transformation.” Among many other fears, Ms. N feared that her other daughters would be subjected to the same fate if the family was returned to their home country. She applied for asylum in the United States.
Mr. D’s persecution involved hot oil. Mr. D was repeatedly arrested and tortured for his political activities on behalf of his country’s opposition party. Despite his repeated arrests and detentions—during which time he was often beaten—Mr. D refused to end his political activism. One day, Mr. D organized a meeting at a local university amphitheater, where he planned to recount the government brutality he had observed the prior week. The meeting did not last long. Police officers raided the amphitheater and discharged tear gas throughout the building. With the stocks of their rifles, the officers struck Mr. D in the head repeatedly. After dragging him to a police station, officers forced him to remove his clothes, and they locked him in a small, overcrowded cell. He did not obtain any medical attention for his head wounds. As with his prior arrests, Mr. D was not charged with any crime nor was he told how long he would be held. His cell was about two meters square and housed roughly 10 other individuals. He was fed a small piece of bread each day, and on some days, he received no water.
During his confinement, Mr. D was taken from his cell at least twice a day to be tortured. Every morning, at about 4 o’clock, officers took him to a separate room for a treatment they called “hot oil.” This brutal practice—prevalent throughout the country—required Mr. D to hold his legs in the air while officers whipped the soles of his feet until they were swollen and bleeding. After “hot oil,” Mr. D could not walk and could barely stand. The pain in his feet forced him to carry all of his weight on his heels, which caused lasting damage. Every evening, Mr. D was again taken from his cell, doused with ice-cold water, and
beaten with various weapons. Frequently, and for long periods of time, officers suspended him upside-down by his legs from a device. While he was upside-down, officers beat his back, buttocks, legs, and head until he felt as though he were going to bleed from his eyes. In addition to these regular torture sessions, officers forced Mr. D to work for them. They chained his feet together and made him wash their cars while walking barefoot across sharp gravel. Throughout his confinement, officers chastised Mr. D for defying the country’s president and for being involved in politics on behalf of the opposition party. Eventually, Mr. D escaped to the United States; he feared further persecution, and for his life, if returned to his home country.
The stories of Ms. N and Mr. D show that those seeking asylum have often been brutalized in ways few of us can imagine. But, no matter how compelling the facts, obtaining asylum in this country can be difficult. The REAL ID Act of 2005 requires that if the trier of fact finds it reasonable to expect corroborating evidence of certain facts, a petitioner must provide the evidence or an explanation for its absence. But a person seeking asylum, for obvious reasons, often does not stop to collect corroborating evidence while fleeing her country. Moreover, numerous procedural pitfalls can force judges to decline otherwise legitimate claims. The most notable are failing to file for asylum within one year or having resettled in another country prior to entering the United States. Adding to those difficulties, many petitioners cannot afford the legal representation that is often necessary to present a successful claim. In 2010, only 11 percent of those without legal representation obtained asylum while 54 percent of those with legal representation obtained asylum.
Through case studies, this article provides an overview of asylum law basics. Asylum is an immigration benefit that allows a refugee to remain in this country and ultimately apply for lawful permanent residence. The term “refugee” is defined in 8 U.S.C. § 1101(a)(42)(A) to mean, among other things, an alien who is unable or unwilling to return to her home country “because of persecution or a well-founded fear of persecution on account of” five enumerated grounds: “race, religion, nationality, membership in a particular social group, or political opinion.” These five grounds are exclusive. Therefore, an individual must show fear of persecution or actual persecution “on account of” one of these grounds, or she will not be entitled to asylum. Moreover, that ground must be “at least one central reason for” the persecution. If based on fear of persecution, the fear must be both subjectively held (i.e., the petitioner must actually fear persecution) and objectively reasonable (i.e., a reasonable person on the street would have the same fear). If based on actual persecution, the petitioner must establish that the persecution would be carried out by her home country’s government or by forces that her government cannot or will not control.
If the petitioner can establish that she was persecuted in the past, then future persecution is presumed. The government can rebut that presumption in only one of two ways: (1) There has been a fundamental change in circumstances such that the petitioner no longer has a well-founded fear of future persecution (e.g., the regime in power at the time of the original persecution has been replaced by a new regime that is not likely to persecute her); or (2) the petitioner can avoid future harm by relocating to another part of the country and, under the circumstances, can do so reasonably well (e.g., the forces persecuting the petitioner only work in the northern part of her country, and she can relocate to the southern part of her country).
Though it all can be simply stated, in practice the elements needed to gain asylum are often difficult to establish, and those that will defeat asylum can be difficult to overcome.
When we first began representing Ms. N, we believed that she had a strong claim for asylum. But Ms. N had been swindled by an attorney (who we later learned had never filed her asylum application and had been convicted of multiple felony counts for defrauding hundreds of individuals seeking immigration services). By the time Ms. N learned what happened and was able to find other counsel, she had missed the one-year filing deadline. As a result, we had to convince the judge that the delay was excused due to changed or extraordinary circumstances. We contended that the criminal fraud of Ms. N’s first attorney; psychological disorders, including posttraumatic stress disorder and dysthymia resulting from her persecution, which we established through expert testimony; and profound language and cultural barriers all prevented Ms. N from filing within one year. We also, of course, had to prove her substantive asylum claim. We provided extensive documentation of her claimed mutilation, an expert obstetrician-gynecologist who confirmed Ms. N’s and her eldest daughter’s mutilation, and an expert in female genital mutilation to opine on the prevalence of the practice in Ms. N’s home country. We also spent countless hours preparing Ms. N and her husband to testify before a judge and for cross-examination by the government. Ultimately, the judge excused the one-year filing delay and granted Ms. N and her family asylum.
We began representing Mr. D in the first stage of the asylum process, the initial filing of the I-589. We worked with Mr. D to put his story into a declaration he signed under oath and to find corroborating evidence for his claim. We also obtained declarations from friends overseas who had witnessed his arrests; confirmed through U.S. government reports that the government engaged in the types of acts Mr. D described, including the “hot oil”; and submitted pictures of him at antigovernment rallies. We presented the final package in the first instance to an asylum officer, who would then interview Mr. D before deciding on the application.
After presenting the package, a colleague and I spent days with Mr. D to prepare him for the stress and substance of the upcoming interview. We spent this time because asylum officers have reported that they believe credible persons should be able to provide substantial detail concerning their persecution. But memory is imperfect under the best of circumstances. Throw in the stress of remembering traumatic events when one’s future is at stake, and even the most honest person might fail to recall dates and events precisely. Mr. D’s asylum officer, as per the norm, had carefully studied Mr. D’s petition and asked him a series of questions designed to assess whether his testimony was consistent with his petition and to probe the level of detail Mr. D could recount concerning his persecution. His successful interview, coupled with the corroborating evidence we presented, led the asylum officer to grant Mr. D asylum.
Unlike Mr. D, Ms. L was not represented by counsel in the beginning. Ms. L could not understand, read, or write English and therefore relied on her ex-husband’s friend to put together her initial petition. Ms. L could not review what the friend put together or confirm whether he had faithfully recorded the narrative she provided. No one prepared her for the asylum interview. The asylum officer ultimately rejected her claim, finding that her testimony before him was inconsistent with the petition “she” had submitted.
If an asylum officer rejects a petition, the petitioner can still continue for a full evidentiary hearing before an immigration judge. Ms. L decided to continue with her petition, and we were brought in to represent her in immigration court. Ms. L had been repeatedly persecuted in her youth because of her ethnicity and the fact that her family had close ties to a former high-ranking government official. After that official was ousted from office, a new president engaged in a “witch hunt” of prominent members of Ms. L’s ethnicity and those associated with the friend’s party. Ms. L’s own family was constantly targeted, and her brothers were repeatedly arrested, without cause, and beaten. Ethnic tensions ultimately exploded. After a failed coup attempt, government forces violently retaliated against Ms. L’s ethnic group, forcing her and others to a refugee camp in a neighboring country. They were not completely safe there, however. Military personnel routinely infiltrated the camp to continue their persecution. Ms. L was sexually assaulted and nearly killed.
After another new president promised reforms, Ms. L and her family returned to her home country. Instead of reform, however, the new president continued the persecution against Ms. L’s ethnic group. Ms. L, by this time 21, began actively working on behalf of another candidate in the next presidential campaign. On election day, she monitored her country’s presidential elections as an official representative of the minority opposition party. After the polls closed, members of the military, brandishing rifles, entered her polling location and abruptly halted the vote counting. The soldiers took Ms. L and her colleagues, at gunpoint, to a pickup truck. On the truck, the soldiers beat Ms. L and her fellow prisoners, hitting them with their weapons and kicking them during the ride. At some point, Ms. L, who was facing the floor and could not see exactly what was happening, heard a scuffle going on above her. Then a gunshot. One of her friends fell on top of her, dead. Ms. L became nauseous and lost consciousness. When she awoke, she was in a small, dirty cell that was dimly lit by a bulb in the middle of the ceiling. The cell smelled of urine. Ms. L had been stripped down to her underwear, her arm was bleeding from a deep cut, and she was bleeding from scratches all over her body.
Shortly after she regained consciousness, a door opened and a tall soldier, armed with two firearms and a baton, entered her cell. He forced his penis into her mouth and orally raped her. The soldier yelled ethnic epithets at Ms. L, and at some point during the rape, because of the force used, Ms. L began bleeding from her nose. Eventually, the soldier left the prison cell. Later, a second armed soldier came in and told Ms. L to leave. Fearing that they might shoot her at any moment, Ms. L said nothing. She walked out of her cell and out of the building. In nothing but her underwear, Ms. L made her way to an uncle’s house. There she learned that her father had been arrested (she would never hear from him again) and that her brother had been killed in rampant violence that had erupted as a result of the elections that day. After staying in hiding for some time, Ms. L eventually made her way to the United States, where she applied for asylum based on her political beliefs and ethnicity.
On these facts, Ms. L should have obtained asylum. Her arrest and sexual assault at gunpoint, the discrimination and attacks she and her family suffered, and the murder of her brother—and likely murder of her father—qualified as actual persecution, entitling her to a presumption of future persecution. In any event, she was certainly, and reasonably, fearful that she would be persecuted if returned to her country of origin because of her public association with the minority political party and her ethnicity. The persecution was, or would be, on account of her race and political opinion, and was, or would be, committed by government forces. But the problem, of course, was corroborating these events in a way that would be convincing to an immigration judge and that would address the credibility concerns identified by the asylum officer, who had already denied Ms. L’s petition.
While talking through the details with Ms. L, we learned that one of her brothers had fled to another country and was staying at a type of refugee camp. We contacted him and obtained an affidavit confirming the persecution his family suffered, Ms. L’s political activities, and the events of that election day. Ms. L’s brother also sent us pictures of Ms. L with their friend (the former high-ranking official) and at political rallies. In addition to these photographs, we submitted to the immigration judge an expert report prepared by Ms. L’s social worker, whom Ms. L had been seeing for a year. The social worker opined that Ms. L suffered from posttraumatic stress. She also found Ms. L to be credible because, during their numerous counseling sessions, Ms. L had been consistent in recounting the events that she had lived through. We also submitted testimony by a political history expert who confirmed the history of persecution Ms. L’s family and ethnic group endured, as well as the widespread violence that took place on election day. None of this was submitted with Ms. L’s original application; therefore, the officer who had denied her claim had no knowledge of any of this corroborating evidence.
The day of the hearing, the government attorney asked to speak to us before the hearing began. He asked one question: When had Ms. L first requested a visa to come to the United States? This we answered readily. Two years before she finally fled her country, Ms. L had obtained a tourist visa to come to the United States but had never, in fact, used it. Upon hearing this, the government attorney immediately consented to asylum. He explained that the United States government had obtained this first visa application and believed that Ms. L was lying in claiming that she only first attempted to come to the United States after her election-day trauma. We quickly pointed out that she had revealed this attempt in her affidavit. The attorney confirmed this and then told us that he found Ms. L’s story convincing because of the pictures showing her at political rallies and with the former president. But, because asylum is discretionary in the United States (even one who meets all the requirements can be denied the claim), he had not been willing to agree to the petition of an individual he believed to be lying about any issue, including the aborted first visa attempt. Put differently, the most important aspect of any petition is the petitioner’s credibility. Any discrepancy, no matter how seemingly innocuous, can make the difference between obtaining asylum and losing the petition. With the government’s consent, the immigration judge granted Ms. L asylum.
Mr. F also had a gripping story that, if believed by the asylum officer, should have resulted in his gaining asylum. In April 2000, secret police arrested, interrogated, and severely beat Mr. F. This beating was so severe that his legs became bloodied and one was broken. Mr. F screamed out in pain for the beatings to stop, but the officers continued to hit him with the end of a rifle. Instead of killing him, as they repeatedly threatened, the police threw Mr. F into prison, where he remained until he escaped two and a half years later. His imprisonment was torture itself. For two months, he was detained in a closet, followed by six months in solitary confinement and in complete darkness; for the remainder of his stay, almost two more years, he was locked in a tiny cell with five other prisoners. During this entire time, Mr. F was beaten, received at best one meal a day, and was forced to live in squalid conditions without access to running water or a toilet. Mr. F was never charged with any crime, much less convicted of one. Instead, he was beaten and imprisoned solely because the secret police, acting on behalf of the government, believed that he was an active supporter of and spy for their political opponents.
Forced detention without cause, especially when coupled with solitary confinement, torture, inhumane conditions, or a combination of these, has been found to be persecution. In addition, the government that persecuted him remained in power at the time he sought asylum, and the government that he was fleeing controlled every part of the country to which he could relocate. But Mr. F faced a hurdle. An individual is not entitled to asylum in the United States if, before seeking asylum, he had relocated to another country. Thus, for example, if an individual flees persecution in Ethiopia by settling in France, he cannot later seek asylum in the United States.
After fleeing prison, Mr. F spent some time in another African country where his wife was then located. Though he had no intent to remain there permanently, he could not leave for a period of time because of the emotional and physical toll that his persecution had taken on him. To show that he had not firmly resettled, we submitted to the asylum officer that Mr. F was never offered any type of permanent residency or travel documentation. Further, Mr. F never received government assistance for language schooling, transportation, rent, or food. He was not legally able to hold a job, did not pay taxes, and did not rent or own his own apartment. In addition, Mr. F did not have any friends or family (other than his wife), business ties, or a work visa in the new country. He never received any support, legal, financial, or otherwise, from that government. Though Mr. F did obtain a temporary resident visa, we argued it was not sufficient evidence of permanent residency because it was, by its terms, temporary in nature. The asylum officer spent much of the interview time with Mr. F reviewing this issue alone, trying to assess whether he had in fact relocated such that he was not eligible for asylum. Ultimately, the officer held that Mr. F had not relocated and was entitled to asylum. Again, it was Mr. F’s access to legal representation that made all the difference.
Lawyers can have a significant impact in helping those applying for asylum obtain corroborating evidence, presenting it effectively to adjudicators, and ensuring that petitioners overcome any legal barriers to their applications. Representing asylum seekers is a way for civil lawyers, particularly those working pro bono for those who cannot afford representation, to fundamentally change lives.
See the related infographic, Asylum-Denial Rates Compared.