Court-mandated story time: the victim narrative in U.S. asylum law.

• Author: Mayo, Jessica

This much we know: stories can change people's minds. (1)

INTRODUCTION

In the late 2000s and early 2010s, anti-immigrant rhetoric rose on a tide of fears about the U.S. economy. (2) Nativist narratives inspired by rising unemployment dominated an increasingly antagonistic debate about U.S. immigration policy. (3) Restrictive state laws, most notably those found in Alabama and Arizona, (4) and a movement to ban birthright citizenship (5) became hot political topics that sent some Republican and Tea Party politicians scurrying to claim the positions their constituencies demanded. (6)

But as popular concern regarding "illegals" (7) dominated the discussion, federal immigration policy continued on, misunderstood and excluded from the highly political sound bites that shape public opinion. (8) Most political rhetoric involves immigration from Mexico. unbeknownst to many of those most passionate about immigration issues, people of Hispanic origin make up about 15 percent of the U.S. population, and only about 6 percent of the Hispanic population in the united States is foreign-born. (9) Those who are not foreign-born are U.S. citizens. (10) Many of those who are foreign-born have legal status in the united States. of the immigrants filling our land with different tongues and cultural diversity, most came legally as family-sponsored immigrants, as holders of employment-based visas, or, as this Note discusses, as refugees and asylees. (11)

Over 73,000 refugees settled in the United States in 2010. (12) The refugees had the necessary paperwork to legally immigrate to the United States after having been determined by the United Nations to be a victim of persecution. (13) The vast majority of these immigrants were resettled from refugee camps to which they escaped after fleeing war, unrest, or other forms of persecution in their own native country. (14) Similarly, those seeking asylum come to the United States after having suffered persecution but without formal recognition of their status. (15) They arrive either under a temporary visa or without documentation and then seek recognition from the U.S. government that they are victims of persecution and qualify as asylees. (16)

The narratives accompanying U.S. asylum law differ markedly from those filling the pages of the current immigration debate. Asylum applicants' stories are filled with accounts of terrible suffering, courageous journeys, and hope for a future without fear. (17) Raising awareness of these heroic individuals would add a different hue to the current discussion, which is colored more by vitriol and passion than by a true understanding of the diversity of global migration.

But the asylum narrative also suffers shortcomings. To meet the standard required to obtain asylum, applicants must focus on their suffering, describing themselves as victims of their persecutors and their native land. (18) This Note examines the ways the victim narrative can have long-lasting effects, primarily on the client but also on the attorney and on society as a whole. The immigration debate treats the applicants as powerless victims, rather than as a culturally diverse group of survivors that is contributing to the changing fabric of American society. But several steps can be taken, both on a practical individual level and through systemic changes, to mitigate such potential damage.

Part I of this Note provides an overview of U.S. asylum law: the legal standards, the process by which individuals seek asylum, and the purposes of U.S. asylum law. Part II turns to the subject of narratives, focusing specifically on the victim narrative and its prevalence in asylum law. Part Ill addresses the many concerns raised by the use of the victim narrative in asylum law. Finally, Part IV follows with suggestions on how to mitigate these concerns. While many of these suggestions are hallmarks of the client-centered lawyering and Therapeutic Jurisprudence movements, (19) this Note focuses specifically on their application to victim narratives in asylum law. The result is a practical outline that practitioners and clients can use to maneuver within the rich narrative landscape and static legal standards and to create legal and personal narratives that achieve legal goals, personal growth, and societal enlightenment.

1. OUTLINING THE STORY: AN OVERVIEW OF U.S. ASYLUM LAW

   The United States granted asylum to over 21,000 individuals in 2010. (20) Much of the world is embroiled in life-threatening situations that create massive migration movements around the globe: conflicts, dictators, famines, natural disasters, and wars. Very few affected individuals make their way to the United States. Those fleeing turmoil may find refuge in their own country, where they are considered internally displaced. (21) Alternatively, they may seek protection outside their country of origin. Some make their way to a refugee camp, (22) usually in a neighboring country, where they are given refugee status by the United Nations. (23) others may make their way further, to countries around the world where they seek peace, often in the form of a grant of asylum. Individuals seeking asylum without refugee status come to the United States in one of three ways: legally on a short-term visa, (24) without documentation, or with an application for asylum upon arrival at a U.S. port of entry. All are equally able to apply for asylum. (25) Asylum affirms the U.S. commitment to freedom and opportunity, but achieving that desired status can be complicated. U.S. asylum law is a confusing hopscotch of requirements that may be all but incomprehensible to the newly arrived, traumatized foreigner.

   1. The Purpose of Asylum Law

      U.S. immigration law has several purposes, but the purpose of asylum law is "to provide a haven for refugees and asylum-seekers--people who are unable or unwilling to return to their home country because of persecution (or a well-founded fear of persecution) on account of their race, religion, nationality, membership in a particular social group, or political opinions." (26) This policy carefully encapsulates the specific statutory definition of a refugee. (27) That definition is carefully insulated from broad humanitarian efforts, such as to provide a better life or eliminate suffering. (28) From a practical point of view, this policy conserves finite resources. (29) The categories chosen exhibit a belief that discrimination based upon the enumerated categories is somehow more harmful, or at least more worthy of redress, than other suffering. (30) other purposes of U.S. immigration law include promoting family unity, admitting workers to enter the workforce as needed, and promoting diversity. (31) These other goals are not achieved through asylum policy, but through other avenues of immigration law.

   2. The Legal Standard for Asylum

      In order to receive asylum, the applicant must meet the definition of a refugee. (32) The United States Code defines a "refugee" as someone who cannot return to his or her country because of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (33)

      This definition includes several important aspects. The first significant portion of the statutory standard is past or future persecution. The refugee's inability to return to her home country must stem from either past persecution or a "well-founded fear" of future persecution. (34) This provides two routes that can be used separately or in combination to prove eligibility for asylum: (1) a retrospective consideration of past persecution, or (2) a prospective consideration of fear of future persecution. But asylum applicants rarely succeed by using only the first option. Past persecution creates a presumption of a well-founded fear of future persecution. (35) If, however, opposing counsel or the immigration judge adequately rebuts the fear of future persecution, then proof of past persecution may be inadequate to obtain asylee status. (36) The second route--fear of future persecution--is enough to establish a claim for asylum even without past persecution; that fear, however, must be both subjectively and objectively reasonable. (37)

      The second significant aspect of this standard is the requirement that the persecution be "on account of one of several categories: race, religion, nationality, membership in a particular social group, (38) or political opinion. (39) The "on account of standard has been interpreted as requiring evidence that the persecutor was motivated to target the applicant because of the protected ground. (40) This opaque statement requires an asylum applicant to provide "some evidence" (41) of her persecutor's motivation--a monumental task. (42) This standard may be intended to help accomplish the purposes of asylum law. The "on account of" standard screens out applicants who have "merely" suffered harassment, (43) rather than persecution deemed worthy of protection. Mere harassment is not necessarily less severe than persecution, but it stems from a non-targeted source and thus does not meet the "on account of" requirement. (44)

      The statute itself does not define persecution. The Board of Immigration Appeals ("BIA") has developed a non-statutory definition of persecution: the "infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim." (45) This definition does little to illuminate the issue, using only "harm or suffering" in its attempt to elucidate the ambiguous term "persecution." (46) Commentators have provided some additional detail in their definitions of persecution. one authoritative scholar defines persecution as "an action ... rather than a condition, such as poverty. Persecution that is physical in nature ... is more likely to 'count' as a basis for asylum than mere death threats, harassment, or...