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| Bar Bulletin |
August,
2003 |
| MSBA News |
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The
ABC's of Interviewing Asylum Keepers
By Anna G. Aita and Raouf M. Abdullah
“First,” said the lawyer to the visitor sitting in her office, “please
understand that seeking asylum in the United States will require both your
commitment to see the process through to the end and your cooperation with
the lawyer you retain. Also, neither I nor anyone else can guarantee your
application for asylum will be granted by the Bureau of Citizenship and
Immigration Service (“BCIS”). Your lawyer’s role is to help you in your
efforts by sharing and applying her legal knowledge, but you must put in
the effort needed to pursue your asylum claim.”
The visitor was a young lady from Guatemala named Xiomara. She spoke no
English and relied on her sister, Defilia, to translate. Xiomara had been
in the United States illegally for three years, working low-paying jobs.
The lawyer observed that Xiomara was hesitant to talk with her. In
contrast, Defilia, who had been in the United States for the same three
years, had a work permit and was residing in the United States legally.
Defillia had filed for asylum only a few days after arriving.
After twenty minutes of putting her timid prospective client at ease, the
lawyer, who had interviewed many Xiomaras over the years, shifted her
approach to elicit the seminal facts. “I understand that you came here
interested in seeking asylum,” she told Xiomara. “Let’s talk about how the
process works. To get asylum, we must show the government that you have a
‘well-founded fear’ of persecution on account of your religion, race,
ethnicity, political opinion or social group if you are sent back to
Guatemala. There is also a general requirement that you file your
application within one year of your arrival into the country or show good
cause why you did not do so.
For lawyers representing aliens who wish to seek asylum in the United
States, this can be a typical dialogue during a critical first interview.
On one hand, asylum seekers are no different than most clients interested
in procuring legal representation. However, some nuances should be
considered as lawyers interact with a potential asylum seeker. Often,
asylum seekers have fled their country of origin with much physical and/or
emotional scarring. It may have been only days since the potential
applicant was detained and tortured by the authorities in his or her
country. Even when the event(s) occurred later in time, the horror may be
ever-present. In any case, getting potential applicants to talk about why
they wish to seek asylum may be the most difficult part of the process.
There are many techniques lawyers might use to get recalcitrant asylum
seekers to share their story. One is to start with a neutral topic and
gradually advance to the difficult issues. Another is to ask the
potential asylum seeker to narrate the percipient events. After the
potential asylum seeker has become comfortable with the lawyer in sharing
his or her experiences, the lawyer can probe the areas that were glossed
over. A third approach is to explain the law and allow the potential
asylum seeker to initiate a discussion on how his/her application might
fair.
After the potential asylum seeker decides to confide in an attorney, the
next hurdle the attorney may encounter is gathering enough supportive
corroborative evidence. The good news is that evidentiary rules in asylum
proceedings are less stringent than in other practice areas. Because the
initial determination is an administrative law proceeding before the BCIS,
evidence in asylum cases is not subject to the stringent hearsay
objections and strict authentication requirements one would find in trial
practice. For instance, there is no need to formally lay a foundation to
show a given document is authentic in BCIS proceedings. News articles and
reports from international agencies such as the U.N. that corroborate a
potential asylum seeker’s experiences are also admissible. In preparing
the asylum seeker’s application, the attorney should refer to community
and Internet resources that confirm the client’s experiences. He or she
should also look to see how the State Department classifies the asylum
seeker‘s nation and whether there are special immigration programs for
nationals from the prospective applicant’s country. These considerations
are important because they can determine how receptive BCIS will be to the
asylum seeker’s case.
Finally, the lawyer should prepare applicants for any interactions with
the BCIS. Remember that whether the applicant has a “well-founded” fear of
persecution has been held to be a subjective standard. Accordingly, the
focus will be what the applicant reasonably believed might happen.
Conducting mock interviews and hearings are essential because they orient
the asylum seekers with how to best convey their experiences to
substantiate their “well-founded fear” of persecution.
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