New Yorker asylum article is dispiriting and outrageous.

Sunday, July 31st, 2011
By: Jonathan MontagJ.D.

The August 1, 2011, New Yorker published a story, “Annals of Immigration; The Asylum Seeker,” by Suketu Mehta  that encapsulated everything about immigration law that is both dispiriting and outrageous. It is a clarion to new lawyers to keep away from the profession and a motivator to honest lawyers in the field to want to take a long shower after any day associating with his or her peers or “the system.” It may be the saddest thing I ever read that did not deal with death or dying. The article at a technical level was lacking. It was an article about the law, but did not discuss the law. As any person who had attended even a week of law school will tell you, the law is about elements that must be proved. In criminal law, a crime has elements. If you satisfy the elements, you are guilty. For example, in common law burglary there are four elements. A person must (1) break and (2) enter (3) a dwelling (4) at night with the (5) intention to commit a felony. The complexity of the law is to then define the elements – what is breaking, what is entering, what is a dwelling, when is it night, what is an intention and how do you prove it, and what is a felony. Then, the facts must be applied to law. Then there is the process involved in proving it (the trial including who decides, what is fair, who proves what, the admissibility of the evidence…) and then appealing the decision. It can be dry stuff – probably why the article skipped it.

Another interesting wrinkle in the article in a magazine that prides itself on its factual accuracy – the names were changed to protect the, … well, guilty. There seem to be no innocent people in this story.

The story is simple enough. An African woman’s home in Africa was ransacked twice. The ransackers broke a dish over a sister’s head one time and beat up her brother. They were looking for her father. During one ransacking, her sister stepped on a nail. At another time, when walking down a street at night, soldiers stole the woman’s watch, phone, earrings, and money. That is the basis of her asylum claim.

Asylum like, burglary, has elements. One must prove that one has (1) a well-founded fear (2) of persecution (3) on account of race, religion, nationality, political opinion, or social group (the nexus), (4) by the government or by people the government is unwilling or unable to control. The law then goes into defining a well-finded fear, what persecution is, what each of the nexuses are –  what a race is, what a religion is (Is persecution for opposing a religious practice a religion?), what a political opinion is (Is being a whistle blower a political opinion?), and what a social group is (Is being a woman a social group? A rich person? A former gang member? A circumcised woman?). As far as whether the government is involved, are soldiers the government? Are a bunch of guys who are soldiers by day and hoodlums by night working as government agents? Are rogue policemen the government?

Persecution is defined by case law. In the Ninth Circuit, it is defined  like this: “Persecution as an extreme concept, marked by the infliction of suffering or harm . . . in a way regarded as offensive.” Persecution covers a range of acts and harms, and “[t]he determination that actions rise to the level of persecution is very fact-dependent.” “Minor disadvantages or trivial inconveniences do not rise to the level of persecution. “The cumulative effect of harms and abuses that might not individually rise to the level of persecution may support an asylum claim.”

Was this woman persecuted when what happened to her was that her home was ransacked when people were looking for her father, her sister had a dish broken over her head, her brother was beaten up, and she was mugged by soldiers? Oh yeah, and her sister stepped on a nail. Were any of these acts on account of her race, religion, nationality, political opinion, or social group? Probably not. Is Africa a crummy place to be a woman? Probably. Is it very hard to make a living there? Probably. Are these valid bases to seek asylum? No.

The asylum seeker is not the only character in this story. There is a lawyer. We learn he or she was paid $3000 to put together and file the asylum application and to attend an asylum interview. We also learn that the lawyer’s paralegal and an African coach – who made up his own successful asylum claim – helped create a more compelling story for the woman which included rape, other torture, arrest and detention, and post-traumatic stress disorder. The coach created a tale with a strong political opinion nexus. The woman was also able to procure medical confirmation of the fictions created for her.

The lawyer is not named and, perhaps fearing his or her wrath, the author was not explicit about the lawyer’s role in constructing the fraudulent application. We learn nothing of any legitimate role the lawyer had in this conspiracy. We do learn that he or she did not show up for the interview – he or she sent a paralegal, who, inexplicitly, was allowed to accompany the woman to her interview. We also learn that he or she never had any intention to go to the interview, though the client, the woman, was under the impression that he or she would attend. Just another fraud.

Another character is the asylum officer. The article gives the impression the asylum office is a post-apocalypic or Kafkaesque den of chaos and arbitrariness with stacks of files lying about, one indicating Congressional interest (Unfair preferential treatment?). In the office on a window was a Communist newspapers (Irony?). The interrogator, an officer who is notorious for denying most asylum claims, who has all the indicia of an evil person in this tale of third world justice – rumpled, middle aged, white – pressed the woman, at her interview, for all the gory details, all of which of course were made up. Spitting, beatings, stamping and trampling, incarceration, sodomy, rape, abortions. No dishes and no nails.

The article then has its triumphant climax – the woman wins asylum. She fooled the evil interrogator. And now she can live a new life as a model American – une femme accomplie.

The abuse of the asylum system is a great tragedy. Because there is so much lying, many adjudicators are skeptical of everyone. The slightest inconsistency and you are denied. A lady who mis-remembered the ages of her children she had not seen in five years was denied asylum because a real mother would not forget her childrens’ ages.   A man in a car who was run off the road into a ditch by government agents is denied because the adjudicator figured the persecutors would have run him off the road while by a cliff rather than by a ditch.   A man who presented a letter confirming his story of persecution by village elders is denied because his mother did not submit a letter.

Congress, to fight the abuse, creates harsher and harsher rules. The nexus must be a primary reason for the persecution. If there is possible corroborating evidence, failure to submit it is a grounds for denial. Applications must be filed within a year of coming to the United States. A a missed opportunity to seek asylum on the way to the United States can be a basis to deny asylum. An immigration judge’s findings of lack of credibility are to be given great deference as are his or her decisions.

Because of the antics of people like the woman in this story, the burdens on an alien to prevail in an asylum claim are greater and greater than ever before. Women who actually were persecuted because of their political opinions lose their cases because no one believes anyone. Attorneys representing asylum seekers are looked at as abettors of criminal schemers rather than advocates for deserving victims. Honest practitioners are shunned by aliens seeking instead hucksters who can concoct a good story and refer them to medical professionals willing to say anything in support of the claim for a buck and coaches able to make the false story sound compelling. Good cases are ruined when fraud, which was not necessary to make out a meritorious case, is exposed. Some adjudicators look at all claims with a jaundiced eye and look for reasons to deny rather than judge the case dispassionately. Thus, disparities in results are huge. It is not the strength of the claim that decides the outcome, but who your adjudicator is as some are more willing than others to be fooled by some so a deserving person is not denied.

Here is my view of a better ending to this story. The U.S. Attorney in New York subpoenas Suketu Mehta and gets the names of the lawyer, paralegal, coach, and complicit medical professionals. They are all rounded up and, to save their skins, they give up others in this tawdry business. They are all then prosecuted and punished. To me that would be a feel-good story. Posted July 31, 2011.





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