U.S. Asylum: Potential Evolution of a System

 

Introduction

“It’s a very simple process. Who may come, who may stay, and who must go?” With this statement on the judicial decision-making process on asylum in the U.S., immigration Judge Rohan welcomed us to the New York Immigration Court during a visit in our program. 

Her statement captures the simplest essence of a problematic system of legally fragmented and politically contested asylum. But unlike the question itself, the answer is not so simple. Of asylum cases that come before Immigration Judges in the U.S., the average grant rate lies somewhere between 22% and 31%. But this slice of opportunity is highly contingent upon the cases’ random assignment to a particular judge and the quality of legal representation. Disparities in judges’ grant rates have been the focal point of extensive research questioning the imputed neutrality and fairness of the U.S. asylum system. 

Observing these controversial variables in asylum outcomes, it seems intuitive that to understand this process, it is essential to explore the perspectives of Immigration Judges on “who may stay.” But, rather than resting solely with the judge’s proclamation, the key to understanding lies with the interactive roles of diverse actors operating on multiple levels of the asylum system.  In order to approach a conceptual framework for understanding asylum adjudication in the U.S., we need to clarify how these different actors engage the law and each other throughout the legal process, and to identify the potential of these divergent discourses to influence the evolution of asylum adjudication.

Thus, our key question shifted to understanding the legal and human dynamics of the entire system. How does the asylum system provide space for diverse actors in this process—from the asylum seeker, to legal representation, to judges, to civil society—and how do these different elements combine to influence the evolution or stasis of a system designed to adapt to global realities? 

A Puzzling “Truth”

Mr. Martin York, Program Coordinator for the Refugee Assistance Project at the Association of the Bar of City of New York, perches forward on the immense mahogany table and appears pensive. He has just informed us that the Project has a nearly perfect eight-year track record of asylum wins with two cases pending at the Board of Immigration Appeals (BIA), and we’ve also heard identical success stories from other legal advocates. But it’s an extraordinarily counterintuitive finding given that the average national grant rate hovers around 22% for asylum cases.  Not surprisingly, many legal representatives have a positive take on the asylum system, pointing out: “If you prepare a case, dig in, and fight for it, then you usually win.” But even for the asylum seekers who manage to obtain legal representation (about 80% of asylum seekers),  the national grant rate averages somewhere between 25% and 36%.  So what is happening in the vast majority of cases that lose? 

Mr. York is silent for a moment. “Someone’s not telling the truth. But I don’t know how to explain that.”

The initial step in resolving this conundrum is to examine how the legal system, surrounding asylum in the U.S., shapes the ability of asylum seekers to gain refugee status. A strong body of statutory law has been developed in the U.S. around refugee asylum, shaped largely in the humanitarian tradition of international refugee law.  

U.S. asylum law is composed of a series of legislative acts establishing statutory legal principles, which are then adjudicated by the Executive Office of Immigration Review (EOIR), an agency of the Department of Justice. Among the most significant of these legislative acts is the 1980 Refugee Act, establishing the first statutory procedures for refugee asylum in the U.S. The Act marked the first time that the international refugee definition was incorporated into domestic law from the 1951 Refugee Convention and 1967 Protocol (only the latter of which the U.S. has ratified).

The asylum seeker must prove her case according to the Convention’s historic precedent of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” and must further prove that her home government is unwilling or unable to guarantee protection in the event of her future return. The Refugee Act includes ambitious objectives to ensure the highest standards of due process in Immigration Courts that employ a “neutral international standard” free of ideological and geopolitical bias.   

In both international and domestic refugee law, asylum seekers are constructed within the textual law as subjects of a legal system that structures their possible horizons as well as demarcating their limitations. Embedded in this process is the essential notion that the individual either is or is not a refugee, and that this immutable characteristic will be impartially determined if all other actors are allowed their proper functioning within the legal process. But in its functional implementation, the externalizing process of determining refugee status, risks excluding a pivotal point of agency—the legal identity of the refugee herself. 

Given this important interface between the agency of the asylum seeker and the functioning of the legal system, it is critical to understand how the asylum seeker is constructed within the scope of the law and its implementation. To what extent does the U.S. asylum process recognize the role of the asylum seeker as a significant participant in a legal system that will determine her future? 

The Asylum Seeker: Significant Actor?

“We’ve had clients who just drop off the face of the planet,” Mr. York continues. He is returning to the question of grant rates, explaining how thousands of asylum seekers could be denied asylum each year. “They have many social difficulties that hinder their ability to navigate the system—no address, no phone number, no English, nothing. So with these kinds of issues facing them, I can understand how they just give up and disappear.”

Many refugees who arrive in the U.S. are unaware of the necessary steps for obtaining asylum status, and their cases quickly become complicated by the unknowing violation of specific stipulations. Asylum cases are most commonly complicated by the automatic one-year bar, stipulating that individuals must seek asylum within one year of their last arrival in the U.S. 

Cecilia Volk, Senior Immigration Staff Attorney with the Gay Men’s Health Clinic, recounts the story of a Guyanese refugee whose case was initially denied because of the one-year asylum bar: “He had been raped multiple times by cops back home. The asylum officer said: ‘You speak English. Why didn’t you tell?’ But who is he going to tell? The cop on the street?” 

As her anecdote illustrates, asylum seekers face a broad range of personal challenges besides legal barriers. It is common to suffer prolonged physical and psychological side effects from traumatic experiences of persecution and flight, and many refugees carry an understandable wariness towards government authorities.  These factors combine to severely limit the scope of their agency within the asylum system, instead creating obstacles in which innocent violations jeopardize their future asylum claims.

In order to engage effectively with the asylum process, the asylum seeker must secure legal defense. Immigration Court does not provide public defense attorneys, so those who cannot afford a private lawyer (the going rate is about $5000) must seek pro bono legal counsel. Although a significant proportion of asylum seekers appear for hearings pro se, the practice is discouraged by judges and efforts are made to connect asylum seekers to legal defense. Courts and NGOs make it a policy to distribute universal information sheets with a list of twenty sources of pro bono representation in the City. 

But agencies are becoming increasingly selective in the types of asylum cases they are willing to represent, specializing in subsets of the asylum population such as HIV-positive individuals or those at risk of immediate deportation. “I feel guilty giving them this sheet with twenty names, while eighteen of them won’t even serve their case,” one case screener explains. Nonetheless, the sheet of pro bono options remains the principle resource provided for potential asylees as they exit their unsuccessful selection interviews with asylum officers or case screeners. 

Even more dangerously, as options for legitimate representation shrink, the illegitimate market for legal sharks poised to manipulate this vulnerability, grows. “We see clients who come after paying thousands of dollars and not even having their lawyers show up at the hearing,” Mr. York explains. 

New York has a thriving constituency of quasi-lawyers who fraudulently present themselves as qualified legal aid to prepare asylum applications. These profiteering ´lawyers´ cater to ethnic niches by exploiting common assumptions from the homeland—such as Spanish-speaking notarios who represent themselves as U.S.-qualified legal aid in the tradition of legitimate quasi-lawyers back home—or by targeting a specific vulnerable population—such as the snakeheads that send their smuggled alien arrivals to illegal ´lawyers´ who will pursue misguided asylum claims.   

At every phase of this process, the asylum seeker is called upon to present her ´story´. In many ways, this story represents the asylee’s greatest point of leverage to establish oneself as an actual actor in the asylum process.  At both the asylum officer interview and in screening interviews with legal agencies, asylum seekers are asked to narrate their story in order to establish the ´merits´ of their case. 

When asked how they determine the strength of an asylum claim, most interviewers note the perceptible truth of the persecution story, the likelihood of future persecution, and whether the case encounters any obvious legal bars to asylum. The demeanor of the asylum seeker is a subtle but pervasive element in the evaluations of case screeners and therefore an important component of an asylum case. It is cited in 46% of judges’ decisions in the courtroom . For the asylum seeker, the task of presenting their personal experience of humanitarian atrocity becomes one of imposing delicacy. “You can turn almost anything to be a part of demeanor and credibility. A judge might say the respondent appears nervous, stuttered, hesitated, avoided questions, was trembling or sweating. But you can see all these can also represent something else,” Mr. Wettenhall, from the Immigration Representation Unit of the Hebrew Immigrant Aid Society, explains. 

While personal demeanor colors the perception of their credibility, asylum seekers must also be careful to present the facts of their story in a reasonable and fully accountable sequence. “It’s logic. I look into the clients’ eye to determine whether they’re telling the truth. And I think I’ve gotten better at that,” explained one screener. But the evaluation of “truth” is not unimpeachable. Different interviewers emphasize different elements when assessing the truth of a claim, and the human variables inherent in a cross-cultural and interactive dialogue are significant. One screener describes this: “Unfortunately, you get really jaded because you’ve heard it all before. So you become…not harder, but less able to feel, perhaps.”

In their turn, Judges also face the difficult task of evaluating the logical credibility of an asylum seeker’s story through a translator—where small mistranslations can have huge impacts on the perceived “truth” of a story. Possibilities for misunderstandings are common—in one hearing we witnessed, the asylum seeker spoke Fujian while the translator had expected the hearing to be conducted in Mandarin. Luckily, the translator happened to do both. 

Given the exceptionalities that characterize this population of claimants, it is important that Immigration Courts handle asylum cases in a uniquely sensitive manner that acknowledges the severe challenges facing asylum seekers. The system that is constructed to protect individuals from state-sponsored persecution should be one that consciously restores the individual asylum seeker to the role of active and dignified agent before the apparatus of law. As the system currently functions, however, asylum seekers appear to be more acted upon than actors of their own future legal status. To a large extent, they are treated as subjects of an externalizing legal structure that interrogates their motives and cultural idiosyncrasies while neglecting to ensure firm and consistent legal defense. 

Between Stasis and Change: Evolution of a System

The five grounds for asylum ensure that international refugee definitions share a coherent humanitarian impetus, but their explicit vagueness also leaves a flexible blueprint with which nations may construct particular legal approaches to this humanitarian imperative. By leaving the matrix of possible legal derivations uncharted, the five grounds establish parameters that may increasingly evolve to integrate a dynamic population of asylum seekers, or that may remain in stasis, systematically excluding evolving groups of persecuted individuals. 

The imperative of legal evolution has motivated a wide constituency of actors to push the boundaries of asylum law in order to transformatively respond to a changing world. Civil society has been especially active in identifying potential openings in the law and pushing to realize their transformation. Deborah Anker, head of the Women’s Refugee Project at the Harvard Law School, has been a leading actor in the push for gender-based refugee designations. 

Gendered refugee cases have long been problematically aligned with entrenched notions of the private sphere, which prohibited their consideration as matters of state persecution and protection under refugee law. The deployment of sexual violence as a political tool in Rwanda and Yugoslavia provided convincing cases with which to argue that a domesticized understanding of sexual violation was inconsistent with global realities of gendered persecution. Collaborating with diverse civil society actors, the Women’s Refugee Project was able to introduce a set of gender guidelines that were incorporated into formal asylum guidelines in 1995.

While civil society is an important external actor in pushing for reformation of asylum law, legal advocates and Immigration Judges are proximally positioned to effect change from within the system. The adjudication process is the ultimate step in determining whether evolving understandings of asylum law will be incorporated into legal precedent—or if the final opportunity for “what could be” will remain unexplored. Unfortunately, the critical elements of this process are obscured by the official invisibility of adjudication: interviews with Immigration Judges are strictly prohibited by EOIR, and the entire judicial decision-making process in asylum hearings is confidential. 

Despite the fact that Immigration Judges refer to the same body of law to determine asylum, there is extreme variation between individual judges’ adjudication records. A 2006 report tracking this variation over fiscal years 2000 to 2005 found that 10% of judges denied asylum in 86% or more of their cases, while 10% denied asylum in 34% or less.  

The wide variance in judges’ grant rates is understood by Mr. Wettenhall to be a difference in legal approach. “If a judge is up on the law and applies it, then you make sure your case takes advantage of recent principles. Others are very humanitarian oriented—if you have a case that’s very sympathetic, then you emphasize this and the judge will be responsive as long as the witness appears credible.” 

Judges may read the law more or less narrowly depending on their judicial philosophy, but lawyers convinced in the strength of their case may construct cases that connect legal principles in creative ways. “If you are before a severely restrictive judge, they will usually make a legal error because the law is not that restrictive and narrow. It really is wide and inclusive,” Mr. Wettenhall points out. Other legal advocates are more pessimistic about the adjudication process: Cecelia Volk views asylum granting in large part as “the luck of the draw.” 

While adjudication remains cloaked in confidentiality, particular trends in decision-making are identifiable. One of these includes the particular grounds for asylum on which a case is being argued. Due to both political and practical pressures on the asylum system, innovative asylum claims that represent an opportunity to “open the floodgates” for future cases are usually rejected for fear of setting precedents. “The issue of domestic violence is a classic example”, Wettenhall confirms. Legal defense may maneuver around this barrier by arguing their case on separate and unrelated grounds, but this tactic results in reinforcing the restrictive fear of precedents and precluding future opportunities for similar cases. Other grounds for asylum may tend to be viewed more favorably. “A judge can be really enthusiastic about one grounds, perhaps because they have an extreme interest or belief in this issue,” observes Mr. Wettenhall. Such trends vary over time, however, and are highly dependent on political climate. Researchers have documented wide disparities in grant rates for asylum cases based on nationality, with Afghani and Burmese cases currently enjoying high rates of approval and Haitian and Mexican cases experiencing the opposite.  

Legal advocates are careful to emphasize that their case selection process operates independently of their belief on whether an Immigration Judge will grant asylum in a particular case. While there are no aggregate statistics on this selection process, larger agencies report selecting about 50% of their applicants, and smaller NGOs much less. “We take cases we truly believe in,” one advocate explains. While this conscientiousness is undoubtedly central to case selection, it is also true that lawyers necessarily select claims that constitute the strong case, mentioning key phrases such as “desperate cases,” “credible claims” and “acceptable demeanor.” The meaning of each of these phrases is largely determined by judicial precedent, and the space to negotiate innovation within these precedents is constricted by current standards of adjudication. An indirect and unintended consequence of this selection process is to more firmly entrench the rigidity of asylum law in Immigration Courts. When asked why they could not take some cases they believed to represent legitimate asylum claims, the young law-student intern at the Gay Men’s Health Clinic replied, “We keep butting our heads against the system.” 

But if an ambiguous case presents a “head-butting” frustration for the legal defense, it also presents an opportunity to challenge conventional adjudication and force the system to innovate. Given the funding and resource limitations that constrain pro bono defense agencies, it is unfortunately the case that these opportunities to push the boundaries of the system are left unexplored.

These indirect consequences of asylum case selection do not imply that the failure to spur legal innovation somehow lies with defense advocates. Pro bono legal representatives operate on scarce resources with an extremely high-stakes caseload, which exerts pressure to defend only those cases that can guarantee positive impact. The way in which the current asylum system operates does not create space for legal advocacy to take full advantage of the expansive possibilities of asylum law. Instead, praxis forces legal philosophy toward stasis out of sheer necessity. Legal advocates are pressured to engage the dominant discourse on “legitimate” asylum, thus reaffirming conventional assumptions that constrain the scope of innovation in the law’s application. Through our experiences and conversations with participants in this process, it appears that the current system too often leaves untouched opportunities to spark innovation and impel creative transformation of asylum law.  

Conclusion

International refugee law revolves around core legal principles that are not static but dynamic. Through interviewing actors involved in the U.S. asylum process, it became clear to us that U.S. asylum law is designed flexibly enough to incorporate evolving definitions of “persecuted groups” in response to changing global realities. But such an evolution requires the purposeful engagement of all actors in the asylum process, whether they are directly involved in the decision-making process or externally engaged in it. Legal representatives, Immigration Judges, and civil society all have necessary roles to play in this process. But among this group of actors, it appears that the asylum seekers themselves—as individuals without a secure legal identity in U.S. society—are largely subjects rather than agents. As a national response to international humanitarian crises, the U.S. asylum system must be fundamentally geared to respond to and evolve synchronously with changing global realities. But it must evolve in a way that enshrines the essential human dignity of all those involved—especially that of the asylum seeker herself. 

The way in which the law is mobilized in this process of evolution will depend on the extent to which different actors are allowed to assume agentic roles in this system. The evolution of the law will be swayed by the involvement of these diverse agents, whether as individuals or collectives, and their perceptions of what the asylum system is and should be. In many ways, the future of U.S. asylum depends on its capacity to operate as an open system that allows internal and external actors to engage, influence, and push the system to adapt to changing global realities.   

 

References

 

Convention Relating to the Status of Refugees, 1951.

Protocol Relating to the Status of Refugees, 1967.

U.S. Refugee Act of 1980.

“Visit by Fellows of Humanity in Action.” 2006. Information packet compiled by Immigration Court Administrator. All resources from http://www.usdoj.gov/eoir.

Anker, D. E. 1990. “Determining asylum claims in the United States: Summary report of an empirical study of the adjucation of asylum claims before the Immigration Court.” International Journal of Refugee Law, 2(2): 252-264.

Anker, D. E. 2002. “Refugee law, gender, and the human rights paradigm.” Harvard Human Rights Journal, 15: 133-154.

AslyumLaw.org. “Basic flow chart of US asylum process.” http://www.asylumlaw.org/docs/united_states/us_flow_chart.htm 

Kelley, M. 2000. “Helping refugees of gender-based persecution.” Harvard University Gazette, February 24, 2000. 

Martin, D. A. 2000. “Asylum reform: A global perspective.” Remarks presented at Department of Justice Conference, Washington D.C., February 1, 2000. 

Political Asylum Research and Documentation Service (PARDS). 2006. “U.S. Immigration Jurisdictions and Judges.” www.pards.org.

Swarns, R. L. 2006. “Study finds disparities in judges’ asylum rulings.” The New York Times, July 31, 2006.

Transactional Records Access Clearinghouse (TRAC). 2006. “Immigration Judges.” www.trac.syr.edu/immigration/reports.

Interviews / Visit

Martin York, Program Coordinator of Refugee Assistance Project, Association of the Bar of New York City. July 28, 2006.

Simon Wettenhall, Immigration Representation Unit, Hebrew Immigrant Aid Society. July 28, 2006.

Cecelia Volk, Senior Immigration Staff Attorney; Krishna Stone, Assistant Director of Community Relations; and Law-Student Intern. Gay Men’s Health Crisis, Inc. July 31, 2006.

Visit to New York Immigration Court Asylum Hearings. Introduction by Judges Patricia Rohan and Douglas Schoppert. July 17, 2006.

 

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