S F Bay Immigration Collage
We are not taking new asylum cases at this time.
The comments below represent a minimum standard in the preparation of an asylum case. They are an attempt to highlight just some of the significant issues to keep in mind as you draft declarations, obtain supporting documents and prepare testimony. Following these guidelines will assist you in effectively communicating your experience to the asylum officer or immigration judge. It may also save you a great deal of time, as it may avoid the rescheduling of your hearing due to lack of complete preparation. The more you educate yourself about the legal process, the better your chances will be. This is true whether you are representing yourself or you are working with an attorney.
The importance of credibility in asylum proceedings cannot be overstated. If an applicant is not found to be credible, he or she will not be granted asylum. The majority of applicants for asylum do not have supporting evidence in the form of eye witnesses to the persecution that they suffered. Often they do not have identity documents or documents that prove they were outside of the United States a year before the filing of their asylum application. Because of these serious obstacles, it is critical that the applicant be found credible in their written and oral testimony, and in the correspondence between these and any supporting documents submitted with the case. Inconsistencies, even small ones, can greatly reduce your chances are being granted asylum.
Credibility Determinations
Credibility determinations are made based on the “totality of the circumstances.” The factors considered include demeanor, candor, responsiveness, plausibility of the story, internal consistency between the testimony and the written documents and country condition reports. If there is an inconsistency, even if the inconsistency has nothing to do with the reason for seeking asylum, the asylum officer or immigration court judge can deny the application for that reason alone. In other words, an inconsistency, even regarding a minor issue, can create doubt about the overall honesty of the asylum applicant. That doubt is enough to support a denial of the application. The candid, unfiltered, disclosure of information, will go a long way towards convincing the adjudicator that the asylum seeker is being honest, rather than being calculating. Establishing that honest communication is the foundation for a grant of asylum.
Corroboration
An asylum seeker is required to provide corroboration “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” This means that the judge may draw a negative inference if he or she believes that corroborating evidence is available, but has not been provided. One example of this is when a written declaration is submitted for someone who lives near enough to the court that he or she could testify in-person, but that witness does not appear. A judge may find it very suspicious that the witness does not come to court to provide their supporting testimony. So, before you submit their declaration, you might want to verify that they are intending to testify. It is necessary to document the efforts that have been made to try to obtain corroboration. If there are people who could write statements that corroborate the applicant’s identity, date of entry into the U.S., past, persecution, biography, current country conditions, or other issues in the case, an attempt must be made to get such a statement. If these documents are obtained, it is imperative that they be examined closely to be certain that they are accurate and that their English language translations and certificates of translation too are accurate. Any contradictions between these documents and written or oral statements of the applicant can be a ground for denial of the application. The writer of a supporting letter may not fully understand the critical importance of being accurate in their choice of words. They may also need to be instructed in the importance of writing more than a brief summary. Details will help the adjudicator to understand that the writer has valuable corrobrating information.
Outline of the Declaration
  1. Overview:
    Summarizing the central facts upon which the claim for asylum rests. Past persecution and fear of future persecution should be outlined here using terms that describe the specific harms suffered or anticipated. It is not helpful to use vague, legalistic, general terms such as "persecution", "harrassment" or other terms which don't describe the specific harms.
  2. Biography:
    This section helps the adjudicator understand who the applicant is, what his or her family ties are, what was happening in their life prior to their flight, and what beliefs, characteristics, opinions or activities led to being targeted.
  3. Past Persecution:
    It will help the adjudicator to follow the narrative if separate headings are used which include the nature of the incident and the date on which it occurred. Please understand that asylum adjudicators vary in their ability to maintain their own focus during your testimony. It is not unusual for a judge or asylum officer to drift off in their thoughts or even on rare occasions to fall asleep during testimony. They are overwhelmed by emotionally difficult work and are tired. So, make it as easy as possible to follow your testimony. They want to be able to follow your testimony by locating the point in your declaration where you describe the same event. They are checking to see that your testimony matches your written statement.
  4. Journey to the U. S.:
    It is important that this section is detailed, and not taken for granted. The plausibility of the story and credibility of the applicant hinge on details such as what travel documents were used during travel, how those documents were obtained, and what happened to these documents after they were used. This information can also be used to address possible one year bar issues and issues of firm resettlement in other countries. The government attorney may claim that the Applicant could have remained in one of the countries that the Applicant was in after they escaped. It is important to be able to explain what status, if any, the Applicant had in any third countries.
  5. Conclusion:
    This section should address fear of future persecution and inability to relocate to a safe part of their country.

The declaration will have much greater impact if it does not use legal terminology or generalized characterizations of what the applicant has experienced. In addition to a detailed description of any incidents of past persecution, the applicant should describe the thoughts and feelings that they had before, during, and after each incident. This will bring to life the meaning of what the applicant suffered. There is simply no way for the adjudicator to understand what the applicant experienced without this being stated. Do not risk having the adjudicator fail to recognize the traumatic, life altering nature of what the applicant suffered. Do not simply state the number of days in detention. Describe the specific conditions of detention and the feelings and thoughts that the applicant had during the detention.

Applicants will sometimes leave out significant incidents of past persecution because they believe that the incidents were common and therefore not important enough to describe. There is no way to predict what information will be considered of greatest significance to a particular adjudicator. The cumulative effect of all of the harm suffered is weighed in deciding whether or not to grant asylum. It is critical not to leave out any incidents of persecution. If an incident is not described in the declaration, but is only brought out in oral testimony, this will invite an inquiry into how that important information could possibly have been omitted. It can call credibility into question in a way that may be difficult or impossible to overcome. For this reason, a great deal of time must be spent in drafting the declaration, so that it is in fact complete. It is terribly difficult for anyone to accurately remember events from their past. It is only by spending time discussing these events that previously burried memories will come to light. That process must be undertaken prior to the interview or hearing(s), while writing the declaration. It is much less helpful to remember a previously obscured fact while testifying. It may then appear to be a fabrication and not simply the natural process of uncovering one's life history.

Testifying

It is important that the applicant provide detailed answers, but without simply reciting at length the exact language of the declaration. Short, but specific answers will allow the examiner to ask follow up questions that bring out greater and greater levels of detail, without leading the client. It is very helpful to speak in short enough sections that the interpreter can accurately interpret the testimony. Applicants will be asked to answer the specific question asked, and not to go beyond that question. If a question calls for a yes or no answer, that is what the client should give. If a translation error is observed, the applicant must point it out immediately.

The applicant must be able to answer the question why they are requesting asylum in the U.S.? The way that this question is answered can make the difference between testimony that flows well while establishing essential facts, and testimony that is non-linear and difficult to follow, or worse, that comes close to being led by the attorney. A helpful answer is one that avoids legal conclusions, but instead names the specific acts of persecution suffered or the specific acts that the applicant fears and that states why these acts occurred or will occur.

It is critical that the applicant understand that the government attorney in an immigration court hearing will often attempt to put words into the applicant’s mouth, or misstate the applicant’s testimony previous. The applicant must not agree to any such misstatements and must be able to stand firm while remaining calm in the face of questions and behavior that can be distinctly disrespectful. It may help to remind the applicant that the government attorney does not make the decision to grant or deny the case, and that the judges have seen all of the tactics before, and may not like the tone of contempt either. The government may characterize any lapses of memory on the part of the applicant as clear and unmistakable proof of fabrication, rather than the normal result of the passage of time and difficulty of remembering traumatic events. The reality, as we all know from our own experience, is that it is very unlikely that two people will remember events in exactly the same way. Asylum applicants are asked to recount events from years ago in a level of detail that is often very difficult to achieve. It is important to admit when these details, such as exact dates, are just not clear. That is normal, and most judges will fully understand that.

There is a tendency for asylum applicants to describe physical harm in a summarized form, rather than with the level of detail needed in the court setting. These details make the testimony much more credible and will give the testimony more weight. It is extremely important that the applicant testify regarding anything that was said by the perpetrator, what the perpetrator looked like, how the perpetrator was dressed, what was his or her attitude, what, if any, weapons were used, what parts of the applicant’s body were targeted, and the specific sequence of the violence, from beginning to end. The applicant should describe any injuries and what his or her physical and emotional condition was after the violence stopped. If the applicant was detained, the testimony should include a detailed description of the living conditions in detention. This should include what it smelled like, looked like, and sounded like. The applicant should describe what food was provided, what bedding if any was provided and if there was a bathroom. All of these elements form a part of the overall harm that was done to the applicant. Do not pass over these events or tirvialize the permanent scars that are left by detention.

It is not uncommon for family members to be harmed by the perpetrators, either before, during, or after the harm done to the applicant. Many applicants learn that their family members have been detained after the applicant’s escape from the country. This is a severe form of psychological harm to the applicant. Time must be taken to fully describe this aspect of the harm. The impact of this harm may be more long lasting as the physical harm.

The above comments are meant to be an introduction to some of the issues the must be addressed if an asylum applicant is going to increase his or her chances of being granted asylum. The overall rate of approval both before the asylum office and the Immigration Court is quite concerning. There are judges who deny almost all applications for asylum. These statistics tell us that careful, thoughtful preparation is needed in all aspects of the case, if there is to be a reasonable possibility of being granted refuge in the United States. The mere fact that the applicant should receive the protections of domestic and international law is no guarantee that this will happen. There are many biases to overcome and the system for adjudicating these life and death claims is not one that is properly designed or adequately funded to carry out such serious tasks. Knowing this in advance may help to motivate you to prepare as fully as you can and not to take anything for granted.