Debating Undocumented Immigrants' Rights
Asylum May Be a Matter of Life and Death
Adapted from Mary Meg McCarthy, "Asylum May Be a Matter of Life and Death," ABA Journal (Dec. 2000): 63.
Refugee Legally Defined
Imagine what it must be like to flee your home, your country, your family, your friends, your job—your whole life—to escape imprisonment, torture, and quite possibly death. Then imagine that you escape to a new country in search of a new life, only to be detained in prison and subjected to an adversarial court process in an unfamiliar language. Finally, imagine facing such an ordeal without legal counsel. That is exactly what happens to most asylum seekers who flee persecution in their home countries to seek a safe haven the United States.
On the other hand, some self-described refugees cannot qualify to enter the United States as political asylees; some try to manipulate the system by lying about conditions back home. A determination must therefore be made as to the truthfulness of each asylum seeker's claims of needing to take refuge here.
Under both international and U.S. law, an individual is entitled to asylum provided s/he can meet the legal definition of a refugee by establishing a "well-founded fear" of persecution based on race, religion, nationality, membership in a social group, or political opinion. Anyone who meets this standard and has already arrived in the United States is eligible for political asylum.
Importance of Legal Counsel
In addition to experiencing the stresses of detention, many asylum seekers are severely traumatized as a result of their persecution and exile. Often, they don’t speak English, nor do they fully understand the legal process in which they are involved. Most cannot afford a private lawyer. Yet, according to a recent study by the Georgetown Center for International Migration, asylum seekers represented by counsel are six times more likely to prevail in their cases than those without legal representation.
On their own, many asylum seekers cannot establish that they meet the legal definition of a refugee. Unable to document their status while acclimating to an unfamiliar environment or being detained in a remote county jail, 80 percent of asylum applicants are returned to their home country. That is why the pro bono (free) work of lawyers in providing representation to asylum seekers is so crucial.
The first thing a lawyer does to become involved in an asylum case is to contact the local immigrant human rights organization to obtain a prescreened case or to assist with a pending claim. These organizations also provide training to lawyers and can familiarize them with local rules and procedures. This is particularly important in asylum practice because Immigration and Naturalization Service (INS) officers and immigration judges have a great deal of local discretion. Moreover, because of international political factors and the complexity of immigration law, cases that may appear similar may vary considerably in complexity and duration.
Research on conditions in the client’s home country is also critical to understanding why the person fled it and needs pro bono assistance. Newspaper articles, book, human rights reports, and contact with people who know the country are invaluable.
The interviewing process in an asylum case is both different and more important than it is in other fields of law. It involves learning the client’ s life story and helping convey why fleeing the home country was necessary. This can be deeply rewarding for both the lawyer and the client as they come to know each other better.
The lawyer then assists the client in drafting a personal statement that explains the asylum claim in the client’s own words. The lawyer also prepares the asylum application. After gathering the facts and constructing a narrative, the lawyer develops a legal strategy to present to the immigration judge or asylum officer. In addition, the lawyer prepares a memorandum of law with supporting documents to submit to the court or the asylum office. Finally, the lawyer prepares the client for the hearing or the interview.
Providing legal services to clients fleeing persecution around the world is an eye-opening and life-changing experience. According to Natalie Spears of the law firm Sonnenschein Nath & Rosenthal, "Representing an asylum seeker has been one of the most rewarding experiences in my legal career. By doing such work, I know I am making a difference in the life of an individual—many times saving that person’s life."
Activities related to the process of granting political asylum in the United States
Student Central | Students in Action | Debating Undocumented Immigrants' Rights
Locked Up Tight | Asylum May Be a Matter of Life and Death | The Next Gideon?
Careers in Immigration Law