By nature, I am a skeptic. When I read the statistics on the numbers of individuals being denied asylum every year, my first thought was how frustrating and difficult it must be for asylum officers to encounter so many people whose stories were untrue, and to weed out those who were honest.
At the same time, as a new parent myself, I could understand why a desperate mother might tell a story borrowed from a friend or relative who secured asylum in America. Even though this is — in part — what I expected when I left to help mothers and children seeking asylum, it could not have been further from the truth. Without exception, every woman I met was genuinely terrified to return home. Unfortunately, that fear — albeit credible — is not reason enough for the U.S. to protect them because the law does not provide protection for everyone seeking safety.
To illustrate the intricacies of this nuanced difference, I’ll use a story I heard during the week I spent working with asylum applicants at the South Texas Family Residential Center in Dilley, Texas. Being one of a handful of family-friendly detention facilities, it was a place where a child could remain with their mom; a blessing for many families crossing the border and facing months of potential separation.
One scorching morning in Texas, I met Maria (name changed) and her six-year-old daughter, who both received a negative determination following their initial interview with the asylum officer, and were facing removal proceedings.
In her initial credible fear interview, Maria told the asylum officer about her neighbor and close friend, the wife of a high-ranking official in the MS-13 gang. The wife, Sarah (name changed), became increasingly frustrated with the extreme physical and sexual violence inflicted on her by her husband, and she began to drink heavily and provoke him and the gang. She even had an affair.
MS-13 began stalking her; they would not let Sarah leave her home except to visit Maria. The controlled what she ate, what she wore, and who she spoke to. The watchful gang members regularly let themselves into Maria’s home to make sure Sarah was obeying their rules.
Then Sarah disappeared. In Maria’s neighborhood, that means the gang murdered her. Days later, when Maria was on her way to work in the dark early morning hours, an MS-13 member with an assault rifle stood in the middle of the road with his gun pointed at her car, forcing her to stop. He told her in no uncertain terms that she had 15 days to leave any area controlled by the gang, or they would kill her, her mother and her two children. Maria swore that Sarah never talked to her about the gang, but the members who stalked their homes believed the were conspirators. She insisted she knew nothing, but the man did not listen.
Terrified, Maria sped home. She could not sleep or eat for days. She finally decided she could afford to flee to the United States with just one child — her daughter. She prayed that she could hide her young son with his father in another city. She was forced to leave her mother, who she had not spoken with in over a month; she hoped she was not dead.
Maria’s tale is hair-raising. Having to choose a child and leave your mother in imminent danger is unthinkable for most Americans. Few rational people would question Maria for fleeing her home in the night with nothing but the clothes on her back and a spare set for her daughter. She was — is — terrified to go home.
Even though Maria’s fear was palpable, and the threats against her life and that of her family credible, Maria’s life was not threatened because of one of five protected grounds, and she did not qualify for asylum based on that story.
Asylum is a legal status that the U.S. (and many other countries) grant to a person based on evidence of past harm or credible evidence of future harm (like a death threat) because of that person’s race, religion, nationality, membership in a particular social group or political opinion. Generally, someone claiming asylum must also credibly demonstrate that the police cannot help them — or are the aggressors — and that relocation within their home country is not a viable option.
As an attorney well-versed in immigration law, I understand the mechanics of asylum, but the women I met did not. Many told me stories about years of traumatic abuse, violence, threats of death, inaction by their government and their police, and the moment that finally forced them to flee hundreds of dangerous miles to the U.S. Unfortunately, these harrowing tales do not qualify them for protection.
In fact, given our tight asylum definition, nearly half of all applicants do not meet the legal requirements for asylum; on average, we granted just 26,000 asylum requests each year.
The Trump administration wants the public to believe that because claims for asylum are up and the rate of denial of asylum claims are also up, that there is rampant fraud in the asylum process. Namely, the administration wants Americans to believe that people claiming asylum are making up or exaggerating their stories. These fraudulent seekers, claims the administration, “game the system” because asylum status allows them immediate legal entry, access to certain benefits and assistance programs, and a path to becoming U.S. citizens.
This is not entirely wrong. There’s been nearly a 1,700 percent increase in asylum claims over the past decade. But the increase in the number of asylum applicants is due to a number of reasons; the most obvious reason is that there is unprecedented violence and gang activity in Northern Triangle countries just south of the border. Asylum requests by citizens of El Salvador, Guatemala and Honduras made up 72.9 percent of total claims in fiscal year 2016. In my experience, all but one woman I worked with in the Dilley facility was from a Northern Triangle country.
Despite the influx of asylum seekers, the rate of denial of asylum claims has remained relatively steady, hovering around 50 percent over the past decade. According to the Transactional Records Access Clearinghouse (TRAC), an immigration data analysis arm of Syracuse University, the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) reported the following rates of denial per a Freedom of Information Act (FOIA) request. As of the end of September 2016, overall asylum denial rates for FY 2016 rose to about 57 percent.
Looking at the rate of denials alone is superficial because it ignores a lot of procedural inefficiencies. The data here refers to the denials issued by an immigration court, not the to the initial screenings conducted by an asylum officer at detention facilities. In Dilley, positive credible fear determinations neared 90 percent in May.
One of those procedural inefficiencies is time. Immigration court hearings often occur years after a person or family is granted initial status at the border. In that time, witnesses and paperwork are often lost or destroyed, making it more difficult for a judge to assess the validity of an asylum seeker’s complaint.
Contrary to popular belief, it is extraordinarily difficult for someone to qualify for asylum in the United States. But a denial does not mean their claim was fraudulent. For Maria, the story she recounted to the asylum officer was her most terrifying encounter, but not the one that could potentially qualify her for asylum.
This is a big problem. Even if asylum officers — many of whom are empathetic individuals — spend extra time with an applicant trying to tease out more information, they are not successful. It takes time for anyone to open to a stranger, let alone to relive a traumatic experience. Using a translator — which officers are required to do — can also stunt the interview. Maria told me she did not want to tell her asylum officer more because the translator was a man, and she was scared and embarrassed. Another woman mentioned that while she spoke Spanish, it wasn’t her native language, and she did not know what questions were being asked. She did not know how to tell the asylum officer that she spoke an indigenous language, and was embarrassed because of the stigma some indigenous people face at home.
The presence of a child in the interview also silences many mothers. During my interview with Maria, we hustled her daughter into a nearby playroom with TV and toys. Maria wanted to spare her daughter from knowing about threats made to the child’s life. Within minutes, her daughter — like so many other anxious children — panicked when she could not see her mom. Inevitably, a helpful guard paraded the child around the room, door to door, holding her up to the small glass windows until she found Maria. Although comforting in the moment, the presence of a child in the interview is a detriment to open and honest preparation and disclosure.
More than anything else, though, having a lawyer makes a difference.
Success often turns on having a lawyer
Asylum applicants who are represented in any immigration proceeding have significantly higher chances of getting a positive determination. According to TRAC, the evidence shows that having an attorney is almost a necessity to winning asylum in court.
And let me cut you off at the pass — it is not because attorneys are telling clients what to say — it is because attorneys are telling clients what not to say.
Maria had unintentionally used her time with the asylum officer — over an hour — telling a story that does not matter. By parsing through the rest of Maria’s life — which was punctuated by violence due to her sexual orientation — it was much easier to highlight other details that provided for a more succinct, likely successful case.
For the unrepresented, there has been a steady upward march in denial rates, from 73 percent in FY 2001, to 90 percent in FY 2011. In 2016, more than five out of every 10 represented asylum seekers were successful, as compared to only one out of 10 who were unrepresented.
Highlighting the absurdity of the interview process of pro se clients are the questions that are occasionally posed to the children of asylum seekers in order to establish credibility for particularly difficult cases. In Maria’s case, the asylum officer asked her six-year-old who her mom was afraid of at home. Pausing to consider the question, the child responded, “the police.” The asylum officer presumably found the child’s response undercut her mother’s stories about threats from the gang.
When I asked the girl and her mother what the child meant when she said that her mom was afraid of the police, her mom told me that many children confuse the police with gang members because they both carry large guns and wear uniforms.
When I asked her daughter if she understood the interview questions, she said in no uncertain terms that she had no idea what the asylum officer was asking, and just answered “yes” to her questions because the officer smiled when the child said yes.
And, of course, this is magnified when a child faces an immigration judge or asylum officer alone. In the now infamous clip on "Last Week Tonight With John Oliver," Oliver highlighted cases of pro se clients as young as two years of age, including one where a child asked to be returned to the country of “Pizza.”
Fixing the mess …
… is easier said than done, but a fix is urgent. All the changes imposed by the administration in recent months — separating children from their families, instituting the zero-tolerance policy, and changing who qualifies as members of a particular social group — must be countered (at the very least) by increasing the procedural safeguards available to individuals seeking a legal immigration pathway. Chief among them is providing counsel.
For Maria and her daughter, earlier counsel might have saved her and her daughter from removal to a home where they may be killed by one of the same enemies we condemn in the U.S.