A Presumption of Disclosure: Towards Greater Transparency in Asylum Proceedings
| Jurisdiction | United States,Federal |
| Citation | Vol. 38 No. 03 |
| Publication year | 2015 |
I. INTRODUCTION
When rebels from neighboring countries crossed the border and fomented rebellion, the government in Nafissatou's country responded with a brutal crackdown.(fn1) Nafissatou and her husband, devout Muslims, decried the violence on both sides.(fn2) After destroying their home, soldiers took Nafissatou and her husband into custody.(fn3) In jail, soldiers repeatedly beat both of them and gang raped Nafissatou.(fn4) After her husband died of his wounds, a neighbor came to Nafissatou's aid and helped her escape.(fn5) Eventually, Nafissatou arrived in the United States and applied for asylum.(fn6)
Fauziya, a seventeen-year-old girl and the youngest daughter of a privileged family, attended a boarding school.(fn7) Her father advocated education for girls and opposed both polygamous marriages and female genital mutilation (FGM).(fn8) When Fauziya's father died, however, his property and family reverted to the control of paternal relatives.(fn9) Fauziya's paternal aunt halted her education, contracted for her to enter a polygamous marriage with a man thirty years her senior, and made arrangements for her "circumcision".(fn10) Fauziya's sister and her aunt came to her aid: they pooled their money, took Fauziya to the nearest airport, and put her on the first international flight.(fn11) With help from kindly strangers, Fauziya eventually arrived in the United States and applied for asylum.(fn12)
Every day, Asylum Officers (AOs) and Immigration Judges (IJs) hear cases like these. Their task is to determine if the asylum seeker has a genuine claim to protection under the Refugee Act, which prohibits returning a refugee to a country where her life or freedom is threatened due to race, religion, political opinion, nationality, or membership in a particular social group.(fn13) AOs and IJs are aware that their decision may mean life or death for an asylum seeker.(fn14) They are also aware that false claims are "distressingly common,"(fn15) that unscrupulous attorneys and unauthorized practitioners of immigration law have perpetrated fraudulent asylum schemes,(fn16) and that granting asylum where it is not merited encourages asylum fraud and weakens the immigration system.(fn17)
The American immigration system poses challenges to both the asylum seeker and the decisionmakers. Immigration law has been described as a "labyrinth," similar in complexity to the Internal Revenue Code.(fn18) Asylum seekers are often unrepresented, unfamiliar with the law, and nonfluent in English.(fn19) Yet, even immigrants who are represented by counsel may still be at a disadvantage; according to one study, the level of representation in immigration is the worst of any civil field.(fn20) In addition, asylum claims depend heavily-sometimes entirely-on the credibility of the applicant. Due to the difficulty in obtaining documentary and testimonial evidence regarding conditions of persecution, the asylum seeker's own testimony is often the only evidence.(fn21) The consistency, detail, and specificity with which an asylum seeker relates her story-particularly the most traumatic events-is of prime importance to the determination of whether or not asylum is granted.(fn22)
AOs and IJs work within an overburdened system. IJs are under enormous pressure to hear claims quickly; in 2006, IJs were expected to hear 1,400 cases per year, or nearly twenty-seven per week.(fn23) In some immigration courts, those already high numbers have skyrocketed. A 2014 Washington Post investigation revealed that an IJ in Arlington had twenty-six cases scheduled in one morning, resulting in an average of seven minutes per case.(fn24) In addition, a 2008 study by the Government Accountability Office found that 82% of IJs and 65% of AOs believe they have insufficient time to thoroughly adjudicate cases.(fn25) The pressure to hear ever more cases also leads to a lack of training and professional development: a majority of AOs and IJs cited a need for increased ongoing training, especially in assessing credibility and detecting fraud.(fn26) Significant inconsistencies in the grant rates between and within asylum offices and immigration courts are a further indication of the burdens on the system.(fn27) In the cases of Nafissatou and Fauziya, one woman was telling the truth, and one woman was lying.(fn28) The fraudulent claim succeeded while the genuine claim was denied.(fn29)
The cry for immigration reform is growing stronger. Many proposals advocate substantive reforms to asylum law, including broadening asylum protections and streamlining asylum procedures;(fn30) granting rights of discovery in immigration court;(fn31) and establishing an inquisitorial, rather than an adversarial, system for asylum proceedings.(fn32) Substantive reforms, however, require congressional action and are mired in political debate.(fn33) This Note proposes a procedural reform to the affirmative asylum process: the direct and proactive disclosure of routine documents in the applicant's file, bypassing the need for a Freedom of Information Act (FOIA) request.(fn34) This reform is politically feasible because it is within agency discretion and requires no legislative action.(fn35) While proactive disclosure in affirmative asylum adjudications is not a substitute for comprehensive immigration reform, it is a pragmatic step that would improve efficiency, lower administrative costs, increase confidence in the immigration system, and lead to fairer and more accurate determinations of credibility.
Part II begins with an overview of asylum law, including its history, the extent of the refugee population, eligibility requirements, and the application process. Part III describes the procedure for those asylum seekers whose claims are referred to immigration courts, while Part IV describes the inefficient and burdensome process for obtaining immigration records. Part V proposes that documents concerning the asylum seeker's application be proactively disclosed at the time the applicant is referred to an immigration court and describes two prerequisites to implementation: a shift in approach on the part of the referring agency and an expansion of AO authority so that the AO makes preliminary decisions about disclosure. Part VI concludes with a summary of the need for procedural changes and the benefits of adopting procedures that facilitate a freer exchange of information.
II. ASYLUM LAW: AN OVERVIEW
American asylum law is based on international agreements that were assembled following World War I and were expanded and solidified following World War II.(fn36) In response to the hundreds of thousands of war refugees who had not yet been permanently resettled years after the close of World War II, the international community (through the United Nations) ratified the Convention Relating to the Status of Refugees in 1951 (1951 Convention) and later, the 1967 Protocol.(fn37)
The 1951 Convention and the 1967 Protocol remain the foundational documents in international asylum law and serve as the basis for American asylum law.(fn38) They codify the belief that nation-states have a responsibility to protect fundamental human rights: if an alien has a "well-founded fear of being persecuted" in her home country, the Convention and Protocol prohibit returning her to that country.(fn39) The Convention and Protocol define "refugee," specify the legal protection and social rights a refugee is entitled to receive, and outline the obligations of a refugee towards a host country.(fn40) The United States fully recognized the refugee rights established by the international community with the Refugee Act of 1980.(fn41)
While the UN Convention and U.S. asylum law establish the right of individuals to seek asylum, they do not oblige nation-states to accept refugees for resettlement.(fn42) Because there are many more refugees than host countries are willing to accept, refugees often spend years in limbo, unable to return home but without permanent legal status in another country.(fn43) Of the 10.4 million refugees worldwide, nearly 7.1 million have been living in temporary exile for five years or more.(fn44) In 2012, less than 1% of the world's refugees were granted resettlement in a host country.(fn45)
Domestically, refugees (immigrants who enter the United States with legal status as refugees) and asylum seekers (immigrants who seek refugee status after entering the United States) make up a small percentage of immigrants to the United States.(fn46) In 2011, the United States granted residency to 31,396 refugees, less than 3% of the total legal immigrants for that year.(fn47) That same year, approximately 48,000 people applied for asylum and about half of that number were successful in their request;(fn48) asylees (asylum seekers who have been granted refugee status) thus represented about 2% of legal immigrants in 2011.(fn49) However, the stakes are high for this small number of asylum seekers. People without legal status who have a legitimate fear of returning to their home country are particularly vulnerable to exploitation, trafficking, and sexual or gender-based violence.(fn50) In order to gain legal status and a measure of security, these asylum...
To continue reading
Request your trial