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Navigating the Asylum Process in the U.S

“In human rights work we waste too much time just talking about things. It's a global problem. We need to talk less and act more.” - Juan Bernado Peña Romero, asylee 
As a public defender and human rights advocate, Juan Bernado Peña Romero fought for the victims of drug addiction, political corruption and paramilitary violence in his home community of Colombia for years. Now, he describes himself as the "best employee" at a hardware store in Manhattan, despite not speaking much English.  He hardly has any free time to learn it, after all. Juan Bernado works five days a week, and feels isolated from his surrounding community.  He is a quiet man, inconspicuous and friendly. The only testaments to his former life in Colombia are a framed New York Times profile of him hung proudly in the hallway and the photographs of his family standing modestly on a side table in the living room. Juan Bernado hasn't seen his family in almost two years, but does not speak about them much. He speaks about his "case" and his experiences with the authorities in Colombia and the United States. Having fled his home country in fear for his life, Juan Bernado has found a new home in Manhattan - as an asylee.

Like most of the 54,967 other individuals granted asylum last year in the United States, Juan Bernado fled persecution in his home country to seek lasting refuge in America.  Juan Bernado and other asylum-seekers must fight each year for the opportunity to live without a constant fear for their life. National and international law provide them with the right to asylum as a victim of persecution, yet accessing this opportunity can mean a long and frustrating struggle with the American immigration system. When they arrive, asylum-seekers encounter a process in which their destiny is dependent on the particularities of individuals, legal jurisdictions and a diverse, decentralized sector of aid organizations.  Although the American asylum system may strive for uniform objectivity and fairness, in practice asylum-seekers must navigate an imposing bureaucracy and maze of human subjectivity.

Understanding Asylum in America 

As with many other developed countries, the United States is a major destination for asylum-seekers and refugees from human rights hot spots and crisis regions around the world.  Each year more than 100,000 people apply for asylum in America and begin their journey through this complicated and nerve-wracking process. Reasons for trying to reach the status of asylee are manifold, but asylum, per definition, is granted on the grounds of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Belonging to a particular social group is the broadest and most contentious category, while political asylum is perhaps the most widely known.

While U.S. law defines the right to asylum in accordance with international standards, the law leaves a high degree of personal discretion to immigration judges and officials in deciding who will be granted asylum.  According to a 2007 study published in the Stanford Law Review, asylum grant rates vary widely by judge and location of the court, among other factors. "In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge," notes the study.  At the New York Immigration Court between 2001 and 2006, one judge denied 91.6% of asylum cases before him, while his colleague down the hall denied only 9.5% of asylum petitions.  These disparities, which the study refers to as "refugee roulette", point to a major disconnect between the objective aim of the law and the subjective nature of U.S. asylum in practice.

Entering the Asylum Process 

“What was special about my case? I didn't hesitate for one second. Never hesitate – you don't have a good chance at winning.” - Juan Bernardo Peña Romero

Indeed, many people lose their chance at asylum before even applying. Once they arrive on U.S. soil, eligible aliens have one year to apply for asylum, making it essential for asylum-seekers to initiate their applications as quickly as possible. Yet some people arrive in America unaware that such a thing as asylum even exists, or that it might apply to their own situations. Bitta Mostofi, a lawyer at a not-for-profit victim's assistance organization called Safe Horizon, expresses her concern, "The one-year deadline is awful ... most people have no idea that they are eligible for this kind of relief."  As a result, qualified individuals often permanently relinquish their right to asylum by letting the one year deadline pass. "Most people start working [after coming to the U.S.], because they need the money," Juan Bernado explains, "but before they know it weeks and months have past and they haven't done anything about their case."  With minimal English proficiency or familiarity with the American system, newcomers to the U.S. often have limited access to the opportunities for asylum available to them. 

The combination of poor understanding of the American legal system and limited access to competent, low-cost asylum lawyers makes asylum-seekers easy prey for low-quality and exploitative immigration services.  Asylum-seekers that enter the U.S. with the help of human smugglers - or "Snakeheads" as they are known in the Chinese community - are especially vulnerable to exploitation. With the cost of being smuggled to the U.S. from China at about $70,000 due upon safe arrival, according to one estimate, "it usually takes an asylum-seeker three years working six days a week to pay off the smuggle fee, plus, they often have to pay the lawyer as well." reports New York immigration and asylum lawyer Theodore Cox. In addition to the smugglers who may coach their clients with fictional stories to tell the immigration officials, asylum-seekers often default into bad legal representation, or so called "travel agency lawyers". As a result, Cox reveals that he spends "most of the time fixing messed up cases." 

The poor legal representation available to asylum seekers might not always be fraudulent, but in some cases it is.  Some agencies charge potential clients a consultation fee just to see a lawyer, only to demand higher fees for their services later in the process.  In other cases asylum-seekers pay someone to file their application, which then is never filed. At times these agencies include false information in the applications, which then makes the case much harder for competent lawyers to win, as there has already been fraudulent information submitted to immigration officials.  Because consistency is so vital in the process, lawyers are faced with the dilemma of reversing their client's story - and in the process putting their credibility on the line - or going forward with fraudulent information. Lawyers deal with the situation differently.  As Mark von Sternberg, a lawyer at Catholic Charities, points out, to him it is a question of integrity, "You have to articulate to the judge that there have been fraudulent statements made by other people in the initial filing. He will understand it in most cases."  There exists a broad range of questionable legal representation, varying from incompetent or overworked lawyers to travel agencies providing quasi-legal counsel to illegitimate and exploitative agencies peddling their services to vulnerable individuals.  No matter the form, however, they can be extremely damaging to their clients' chances at asylum.

Given the challenges that asylum-seekers face when acting alone or with questionable aid, quality legal counsel is critical to their cases’ success.  According to a 2007 Stanford Law Review study of U.S. asylum practices, "46 percent of people who appeared with lawyers or other representatives were granted asylum, while people without lawyers won 16 percent of the time." Given this wide disparity, access to quality legal representation plays a major role in determining who will be granted asylum in America.  While the Immigration and Nationality Act (1952) provides asylum-seekers with the right to a lawyer, they can only exercise that right at their own personal cost.  With the high cost of private legal counsel and limited availability of low-cost or pro bono aid, applicants must search aggressively for affordable representation.

As a legal advocate himself, Juan Bernado appreciated the importance of having a qualified lawyer on his side, but finding one was a challenge. When he arrived in New York on a tourist visa, he searched throughout New York for legal assistance with his asylum case after an offer of help from a Colombian lawyer in the city fell through. Juan Bernado scoured the phonebook for immigrant aid organizations, then rode the subway up and down Manhattan knocking on the doors of Catholic Charities, the Hebrew Immigrant Aid Society, Human Rights First and numerous others, all while saving every metro card and purchase receipt as proof that he wasn’t misusing his time in the United States. One after another, the nonprofits turned down Juan Bernado’s case, arguing that his lack of physical evidence of persecution would make winning asylum too difficult.  Finally, lawyers at Safe Horizon agreed to handle the case, but they made it clear that winning his asylum would be a major challenge. 

With his strong legal background, Juan Bernado had the confidence to push his case aggressively, yet his difficulties in finding quality legal help were all too common.  Various organizations offer free or low-cost legal services to immigrants and asylum-seekers and immigration judges are required to present defendants with a list of local providers, yet such organizations are often under-staffed and over-burdened, able to take on only a selected number of clients. "Some lawyers take on cases which there are no way that they can handle competently by themselves," notes immigration law clerk and HIA Senior Fellow Mario Sturla. “They charge low fees, but need to make money like everyone else so they take on too many cases and don't have time to prepare them adequately.”  Given the subjective nature of the asylum process, accessing quality legal counsel - whether private or non-profit - is critical for asylum-seekers. 

Proving Your Case

"Having a lawyer makes all the difference." - Bitta Mostofi, Safe Horizon 

Despite the pitfalls facing asylum-seekers in finding quality legal counsel, the representation of a competent lawyer is a decisive factor in the success or failure for their cases.  After they file their initial application with immigration officials, asylum-seekers must testify to their fear of persecution in an initial screening interview.  For the applicant that means expressing in great detail the traumatic events which they have suffered, yet the readiness to tell a compelling story is not enough. “Most cases are won on the initial filing” of sworn testimony and supporting evidence, explains Bitta Mostofi, since once the filing is submitted to the authorities it will follow the asylum-seeker through each phase of the case and any inconsistencies in the applicants' testimony or evidence will be used to discredit their story. Therefore, a lawyers' expertise is vital for structuring the written testimony in a way most persuasive to the judge. 

Gathering evidence to prove one's case, however, can at times be close to “mission impossible”.  In order to qualify for asylum in the U.S., an applicant must have suffered past prosecution or have a well-founded fear of future prosecution in his home country, but the circumstances of his abuse and escape are unlikely to be highly documented. "Even though it may be difficult for people to speak about their story, they need to show certain things to the court to win," notes Mostofi, namely a highly consistent story and convincing evidence. Sturla agrees, attesting that the judges are "not looking for the absolute truth, but whether [the applicant] has provided enough evidence to meet their burden of proof."  Yet lacking a note from their torturers, asylum-seekers must find other means of corroborating their cases. Indeed, people who seek asylum often flee to the U.S with few personal belongings and weak evidence of their cases, so their lawyers must seek out other forms of proof.  Gradually, lawyers can build up a case using news articles and human rights reports on the home country, as well as witness testimonies and medical, psychological or cultural experts' reports.  Often, however, the decision to leave one's country and seek asylum in another state is made consciously and a lot of asylum-seekers manage to gather at least little evidence proving their fearful situation.  "Ideally, you want to go into trial with an irresistible claim," remarks Mark von Sternberg, but such evidence is difficult to come by.  Experienced lawyers know that meeting legal standards is important, but given the subjectivity inherent in the process, applicants' cases must also be unique and precise to convince judges of their merit. 

Screening Interview 

“The immigration officer that interviewed me didn't ask me difficult questions.  He was asking me about my address and I gave him a very detailed answer. But he got angry at me and said, 'That is not the way we say it! [In New York City] you give the intersections!' He didn't ask me a single question related to my case.” - Juan Bernado Peña Romero

Juan Bernado sits in an antique armchair in his small living room. He speaks calmly about what happened to his family, friends and neighbors back home, and about the guerrilla fighters in Columbia that threatened his life.  Thinking about his interview at the immigration office, however, Juan Bernado gets measurably upset. His gestures become more animated and his voice rises the more he remembers the exact scene on June 6, 2007, more than one year ago.  Back then, Juan Bernado's lawyer from Safe Horizon thought that they had lost the case.  As a response to the immigration officer's offensive interview methods, Juan Bernado himself got upset and aggressive. “After the interview I was so horrified. I really thought I had to go back to Colombia. The days went by as usual, but for me it seemed like it took forever,” Juan Bernado remembers.  Five days after the interview, however, he received a call and anxiously took the long train ride back to the Immigration Center to hear their decision.  To Juan Bernado’s surprise, they granted him asylum.

Despite his frustrating interview, Juan Bernado had a well-prepared case. It was likely the combination of good preparation by the lawyers at Safe Horizon and Juan Bernado's urge to do it right that made him successful in the end. “You have to do what you have to in life and you have to do it well,” he says with affirmation.  Mark von Sternberg agrees, emphasizing that "preparation, preparation, preparation is the key to success - on top of the truth, of course."  The asylum-seekers' application is the bedrock of their case, but the screening interview is only their first opportunity to gain asylum.  If the immigration officer denies the petition, then the asylum-seeker has the right to have his case heard anew by a judge at the Board of Immigration Appeals, where many of the same issues apply.

Testifying in Court 

"Here in New York we are extremely lucky. With the prevailing liberal interpretation of refugee status, you generally have the law on your side going in. Generally, the vast majority of judges working in this district are, in my opinion, very good.  We have a highly professional bench, and they are well-read and steeped in knowledge of international human rights." - Mark von Sternberg

Mark von Sternberg's positive attitude towards New York City's Immigration Courts is not shared by all participants in the process.  Although more asylum appeals are granted in New York than in some other U.S. districts, appearing in court is still highly unnerving for asylum-seekers and wide disparities between judges remain.  So much depends on the applicant's testimony.  The asylum-seeker has to follow many unwritten rules, is probably not fluent in English, and must rely to a huge extent on his/her lawyers' preparation of the file.  Since they hear hundreds of cases a year, judges are not very patient with poorly-prepared files. "You have to know what awaits you", Theodore Cox says. He has been working with immigration judges for years and knows that they can be quite intimidating to asylum-seekers in some cases. "Being consistent in your story is still the most important thing once you appear in front of a judge. The old rule was that if there is any inconsistency, it had to be about a major issue. Now, if there is any inconsistency - you lose."  As a result, it is extremely important that lawyers do a good job preparing asylum-seekers for their testimony.

Even when emotionally prepared to tell their story, asylum-seekers find themselves in situations where they have to defend their credibility rather than the facts of their case. Often, judges focus in on technical details such as dates in order to test the asylum-seeker's credibility and coherence to the written testimony. For the asylum-seekers, it can be frustrating to pour out painful details of their lives, only to have the case center on legal technicalities, the availability of solid evidence, or the preconceptions of judges. The feeling is shared by lawyers.  "The sad part is that even if you have a fantastic lawyer, but the judge has seen a thousand Chinese sterilization cases, it’s really hard to convince him that this case is different," Mostofi reveals, so "you have to be creative in proving that your case is special."

Cultural Challenges

With such a high value placed on consistency in the asylum process, cultural differences between the asylum-seeker and the American authorities can make maintaining a perfectly consistent story difficult. Unlike voluntary immigrants, asylum-seekers are forced from their home countries and may not have foreseen having to live abroad, speak a foreign language or assimilate to a new culture.  Although our society claims to value cultural differences, culture quickly becomes a barrier in the asylum process. Language presents the most immediate challenge to asylum-seekers attempting to explain their cases effectively to an immigration official or judge.  Although courts are required to provide asylum-seekers with interpreters in their native languages during hearings, asylum-seekers and their legal representatives must handle language difficulties on their own while preparing the case. Understanding the unique linguistic and cultural needs of his mostly Chinese clientele, asylum lawyer Theodore Cox speaks Mandarin and employs a Chinese-American staff. Visitors to his office are also greeted by wall-to-wall postings of Chinese-language news articles and children's drawings.  By creating a welcoming environment for his clients, Cox is able to more easily bridge the cultural divide. 

While Cox specializes in meeting the cultural needs of his specified clientele, other organizations must struggle to accommodate the multiplicity of cultural and linguistic backgrounds of their clients.  Professional translation services are quite expensive, so agencies must find creative ways to communicate with their clients.  Working with his lawyers at Safe Horizon, Juan Bernado wasn't always satisfied with the translations of his testimony they presented.  He also had different ideas on how to present his case, and strained to tell his story with the precision that his lawyer demanded.  For Juan Bernado his story was a personal and human matter, yet his lawyer emphasized the need for consistent facts to strengthen his case.  As Juan Bernado's lawyers were well aware, any slight inconsistency in his testimony could prove fatal for his asylum claim. Yet cultural differences often produce such inconsistencies, especially when cultures have different ways of expressing basic concepts, such as time or the marking of events. For example, an asylum-seeker from rural Kenya may remember the events in his case by the seasons or harvest times, while a Chinese mother would report the age of her new-born child as one year, counting the time in her womb.  When judges question asylum-seekers they often have specific answers already in mind which they want to hear to prove the case, so inconsistencies which arise from cultural differences or mistranslations can damage asylum-seekers’ chances in court.  Good judges keep these peculiarities in mind when hearing cases, but they are often difficult to foresee.

Political Considerations

In addition to the degree of subjectivity inherent in the asylum system, politics can present further challenges for asylum-seekers.  Following the September 11th attacks, national security legislation instituted new restrictions for non-citizens and asylum-seekers from many Muslim countries. At Safe Horizon, Bitta Mostofi finds that many of their clients from the Middle East and Southeast Asia have had "very politicized cases" in recent years as a result of the government's Special Registration List of 14 nationalities of immigrants – mostly Arab or Muslim – who were required to report regularly to immigration authorities.   In the process of this required reporting, immigration officials entered higher numbers of people into deportation proceedings and restricted their access to asylum.  Also, enhanced security background checks conducted by the F.B.I. caused major delays for hundreds of thousands of people in immigration proceedings. Government officials check variations of names in databases in order to see whether they possess any similarities to persons in the F.B.I. watch lists, so "if you were a man from one of the List countries, you were something like three times as likely to have your application held up for two years or more," reports Mostofi.  Most experts agreed that judges' asylum decisions are fairly apolitical, yet national government policies often influence the process.

Conclusion 

"If there is anything arcane, it is the American immigration system." - Mark von Sternberg

Despite being tasked with handling the most basic needs of vulnerable individuals from around the world, the American immigration and asylum system is an extremely complicated body of law fraught with institutional irregularity and human subjectivity.  At each stage in the process, asylum-seekers face a multiplicity of challenges in entering the system, finding quality legal representation, articulating their claims and overcoming cultural barriers.  The U.S. projects an image of freedom and openness around the globe, yet for many individuals fleeing persecution, stepping onto U.S. soil does not end their struggle for safety.  By entering the asylum process, they must begin their fight for a more secure future anew.  With his asylum assured, Juan Bernado is happy now with his freedom to enjoy the simple things in life, and feels the responsibility to help others.  "People think too theoretically about human rights," he says, "but they don't do concrete things to help each other."  He volunteers to assist new asylum-seekers, and hopes that his experience will teach those around him to act daily on behalf of human rights.

References

Interview partners

Cox, Theodore, immigration lawyer, interviewed on August 6, 3 p.m.

Mostofi, Bitta, lawyer at Safe Horizon, August 6, 10 p.m.

Peña Romero, Juan Bernado, asylee from Colombia, interviewed on August 8, 2 p.m.

Sturla, Mario, immigration law clerk, interviewed on August 5, 6 p.m.

Von Sternberg, Mark, immigration lawyer at Catholics Charities, interviewed August 12, 2 p.m.

Sources 

Convention Relating to the Status of Refugees, 1951. 
“Judge-by-Judge Asylum Decisions by Immigration Court: Fiscal Years 2001 – 2006” TRAC Immigration Report. http://trac.syr.edu/immigration/reports/183/include/1_judgelist.html

Lee, Jennifer, "Defending Rights, He Said He Was Marked to Die", The New York Times, November 28 2007. 
http://www.nytimes.com/2007/11/28/nyregion/28neediest.html?_r=1&oref=slogin

Ramji-Nogales, Jaya, Andrew Schoenholtz and Philip G. Schrag.  “Refugee Roulette: Disparities in Asylum Adjudication.” Stanford Law Review, Vol. 60, 2008

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