The Risks and Benefits of Asylum in the United States

I once asked a woman why she applied for asylum without the assistance of attorney, to which she answered that she knew someone who had done it and she had heard that you simply go to the asylum office, tell a story, cry, and you are granted asylum. Of course this woman was misled, as are so many others, when it comes to the preparation and presentation of asylum claims. Here are some pointers you will need to consider when assessing whether or not to apply for asylum.

1. AVOID THE HERD MENTALITY

Simply because asylum was right for one alien does not mean it will be appropriate for another. Consult with a qualified attorney with expertise in representing aliens from your country in asylum cases. Understand also that asylum officers (to whom the case is presented at the first level) differ in temperament, tolerance, aptitude, training, education, and even empathy. Some asylum officers will go out of their way to deny an asylum claim. They will interrogate the alien as if he or she is a criminal and devote an extraordinary amount of effort towards poking holes in the alien's story to find that the alien is not credible or consistent in his or her testimony. Even the best of cases are denied by such officers. Other officers are more generous and will give the alien the benefit of the doubt in an effort to find some way if possible and legal, to approve the asylum claim. A majority of asylum officers conform to no extreme. They will dispassionately question the applicant in great detail in an attempt to gather the facts. In that process however, if a pattern of inconsistency or poor credibility emerges, the asylum claim will be denied. Where the alien's asylum claim is denied at a time when the alien is no longer in valid immigration status, the alien will be referred to Immigration Court for "Removal Proceedings," where asylum and other immigration relief may be considered by the judge. Make no mistake however, that this court process is a formal and confrontational one in which a government prosecutor enters the case, and in most instances agitates for the alien's deportation.

There are individuals from an alien's native country whom I would refer to as natural asylum applicants. These are applicants whose circumstances are well known nationally and/or internationally, or their circumstances have been significantly publicized in newspapers, other media or official documentation. Many such persons can, on occasion, prevail in an asylum claim without representation. However, many such individuals are denied asylum, not because their cases failed to be persuasive, but because of their failure to understand very subtle legalities and technicalities in the process which can legitimately lead to a denial of the claim.

Individuals who are not well known and whose cases have not been publicized or memorialized in any official manner must proceed with extreme caution and with the best lawyering possible to prevail in an asylum claim. Such persons should never have the mentality that the US Government owes them an asylum approval simply because their friend or colleague's claim was approved. The friend or colleague may have presented much stronger evidence persuasive of asylum, or as is more often the case, that friend or colleague was simply lucky. In my long experience as a lawyer, I have reviewed many cases of asylum, granted at the asylum office level, which could not possibly have been granted in the more legalistic setting of immigration court. Hence, an experienced lawyer preparing an affirmative asylum claim (one which is being filed before the applicant is referred to immigration court) should plan for the contingency that the case could (even with the best of lawyering) be referred to immigration court, and prepare the application so that, within the limitations of the facts provided by the alien, and the laws and regulations relevant to asylum, it is as stong as it possibly can be in the event that it must be presented in court. The lawyer must also consider and analyze forms of relief such as "withholding of removal" and relief under the "Convention Against Torture" which are not available in the asylum office, but are available in Court. The legal requirements for those forms of relief are different than for asylum. The legal interplay between a clear and articulate presentation of the facts and the application of those facts to a complex body of statutes, regulations, case law, and agency policies is the difference between an asylum claim in which the client can "legally" qualify for asylum, and a claim of asylum in which an applicant is merely hoping that his or her truthful story, as he or she presents it, will qualify him or her for asylum. The alien must be prepared also to accept that they might not qualify for asylum or related humanitarian relief based upon the facts they have presented to the attorney. The alien should listen to the attorney, not for what he or she (the alien) wants to hear, but rather, for the truth and sometimes, the very harsh reality that they should not apply for asylum and that there is no immediate immigration relief available.

Thus, asylm is certainly not a benefit an alien should apply for simply because others are doing so. Many have discovered this truth at the receiving end of a deportation, or voluntary departure order from an immigration judge. Certainly however, if the alien fears persecution in his native country or country of last residence based upon race, religion, national origin, membership in a particular social group, or political opinion; that person should certainly be consulting with an attorney and seriously considering asylum if there are no other less complex forms of relief available.

2. PRESENT THE TRUTH

Asylum applicants are expected to tell the truth in their asylum claims. Their testimony is given under an oath which carries with it serious penalties if it can be found that the alien has knowingly fabricated aspects of the asylum claim. Where an immigration judge finds an asylum claim "frivolous" (willfully fabricated to some extent), the alien can be debarred from any further immigration benefits in the US for life. Obviously, the alien would also eventually be deported. Along the way however, the alien can face criminal penalties and fines also for having fabricated some aspect of the application.

3. CONFIDENTIALITY

The alien should feel confident in telling the truth however, since the government will not reveal any aspect of the asylum claim (or even the fact that the alien has applied for asylum) to the alien's government or community.

4. NON-LAWYERS

An alien should never hire a non-lawyer, in this attorney's opinion, to even assist in the preparation of an asylum claim, or any other immigration case. Non-lawyers are generally not allowed to give legal advice and can only type up forms for clients. In California, it is a crime for non-lawyers to give legal advice. I cannot conceive how a non-lawyer would be able to type up an asylum application competently without intimately understanding the law of asylum and advising the client as to the meaning of the various complex questions which are asked on that form. For example, there is a part of the application which asks whether the form is being filed within one year of the alien's entry. Though this is a fairly simple question, it is one with potentially severe consequences to the asylum claim, since an asylum applicant is required by law to file for asylum within one year of entry. Hence if the applicant admits he is filing beyond the one year deadline, he or she will wish to understand what the consequences of that admission are. Who will explain these consequences to the alien? Certainly not the non-lawyer, since he or she commits a crime by giving any legal advice and since he or she is not trained in this sort of legal analysis. Further, who will explain the complex and legalistic exceptions to the one year requirement. Certainly not the non-lawyer, since beyond being barred from offering legal advice, the non-lawyer cannot perform the requisite legal analysis in these matters. It really does take a lawyer to do this properly.

Aliens should be aware that notarios, notaries, law and consulting services, offices entitled "legal services," paralegals and legal secretaries are non-lawyers who, in this attorney's opinion, are not properly qualified to prepare or represent others in asylum claims. An attorney will be licensed by some State Bar Association or court of the state in which they are licensed. The alien can look the attorney's certification up on the internet at the relevant bar association to verify that they are an attorney. Aliens should also refrain from having their "friend" or "relative" fill out their asylum claim (even if that friend or relative was able to represent himself successfully in their own asylum claim). Aliens will sometimes give or sell to other aliens their asylum materials, naively believing that the US Government is so inept that all they need do is change the name and dates on the application, to prevail in the asylum claim. Though it is likely that this very corrupt approach may occassionally work for a small minority of claimants, it generally fails in the most spectacular and damaging ways for the applicant.

Most aliens would not ask a nurse to perform their heart surgery, even when the nurse has observed the surgeon's technique for a number of years. Think of law in the same terms as medicine and you will hire the right professional to represent you every time.

5. AVOID CHEAPNESS

Many aliens make fatal mistakes in their immigration efforts as a result of not wishing to pay attorneys fees. At the end of the day, when the alien is sitting in an immigration detention facility awaiting deportation without bond because of naive missteps along the way, which could have been avoided by simply hiring competent legal counsel, the alien always laments that they should have sacrificed financially for the sake of good legal representation. Aliens should appreciate that their immigration status is paramount in the US. It comes before buying real estate or acquiring the trappings of success, since there can be no real or lasting success in the US without status. In most foriegn countries there exists some legal system and process. Such aliens, in their own countries would generally not contemplate going forward with a complex legal process in the absence of legal representation. They understand well that top legal representation in their countries requires financial sacrifice on their part. Yet aliens sometimes believe that once they arrive in the US, these common sense realities must be abandoned. Aliens should never forget that the application for permanent or long term immigration status is the most important thing that they will do in this country. Do not short-change the process.

6. CATEGORIZATION

The initial analysis and categorization of the asylum claim may be one of the most important and technical aspects of preparing an asylum claim. Categorization is the complex and often highly creative process in which the lawyer crafts arguments as to how and why the case falls within one of the five enumerated categories of asylum (race, religion, national origin, membership in a particular social group, or political opinion). These categories are not what the alien would wish them to be, but are rather, legally defined designations into which a case might or might not fit. Where an asylum claim does not fit within one or more of these categories, it must legally fail. Categorization is one of many aspects of the work that a good lawyer does automatically in an asylum case of which the client is generally completely oblivious. Non-lawyers are not equipped to perform this delicate analysis.

7. THE LAYWER'S TRIAL AND APPELLATE EXPERIENCE

The best lawyer to prepare an asylum claim is one who has not only asylum office experience, but one who also has trial and appellate experience. The lawyer has to be able to anticipate how the case might play out in a trial setting under the examination of a judge and a prosecutor. The lawyer must also have a sense of how the legal merits of the case might hold up in an appeal where the alien testifies credibly at trial. The alien does not hire an attorney to guarantee that the case will be approved, since the decision of the asylum officer or immigration judge is somewhat subjective and since at the end of the day, the performance of the alien on interview or trial day will determine the outcome. The lawyer is hired to prepare the case carefully with sound analysis and foresight. The lawyer must also be committed enough to sufficiently prep the client for the realities of the interview and immigration trial settings. Aliens are often astonished at the aggressiveness and hostility of some asylum officers, and do not think deeply enough about their truthful circumstances to survive asylum interviews and trials. They are often heartbroken when their lack of depth or sophistication in their presentation results in a denial, knowing at the same time, in their hearts, that their fear is genuine and the circumstances of their claims truthful.

THE LAWYER MUST UNDERSTAND UNIQUE ASPECTS OF THE ALIEN'S COUNTRY AS THOSE ASPECTS MIGHT IMPACT THE ASYLUM CLAIM

Do not underestimate the power and benefit of the lawyer's experience in an asylum claim. A lawyer who does not have a sufficiet grasp of the alien's country, its history, culture, politics and traditions, will often not have sufficient instincts to prevail in a closely contested asylum claim. Such a lawyer might also miss important factors which could be brought to the case to strengthen it.

A good lawyer with limited experience related to a specific country can get him or herself up to speed on that country's particulars sufficient to competently represent the alien. However, the lawyer must be willing to put in the time to learn what he must to represent the client.

I hope this article has given our readers some insights into the asylum process and into some of the errors and pitfalls which await them in that process.

INTRODUCING THE NEW CHOW & HAMILTON BLOG

Welcome to the new Chow & Hamilton blog. This site is not intended to impart legal advice or counsel, but rather, is intended to allow our clients, prospective clients and the public, to keep up with the firm's headlines and some of the musings of its Attorneys.

The firm's address is: 5681 Beach Blvd., Ste. 201, Buena Park, CA 90621

Phone: (714)521-1437
Fax: (714)521-4692
chwhmltn@aol.com

We will be adding content to this blog in the next weeks. Please be patient as we endeavor to make this blog an interesting destination for all.