Five Questions To Ask During Your First Interview With An Asylum Applicant
Mr. Smith calls you on the phone, and says, "I want to apply for asylum." You say, "Sure; come to my office this Friday at 10:00 am, so we can talk for one hour."
Make sure you ask these questions during your first meeting:
There is a one-year deadline for applying for asylum, after arrival in the United States. INA § 208(a)(2)(B). There are exceptions to this rule; however, if the client arrived 360 days ago, you should find that out quickly.
The client may qualify for an exception to this rule if he can show "changed circumstances" as per 8 C.F.R. §208.4(a)(4) or if he can show "extraordinary circumstances" as per 8 C.F.R. §208.4(a)(5).
The passport may help answer the first question. The passport no doubt will be full of interesting stamps and dates. If the client has no passport, that too is interesting. Asylum Officers frequently demand to see the passport within the first five minutes of the interview. They routinely ask about all international travel.
You and your client will be eager to talk about torture; you will be annoyed when the Asylum Officer spends a great deal of time asking how the passport and visas were obtained. Being able to use a passport in the home country is a fact "weighing against the reasonableness of [the applicant's] fear." Phal v. Mukasey, 524 F.3d 85, 90 (1st Cir. 2008). Accord: Jiang v. U.S.Attorney General, 2009 U.S. App. LEXIS 2187 at *5 ([11th Cir. 2009); Redd v. Mukasey, 535 F.3d 838, 843 (8th Cir. 2008).
You will be further annoyed when the Officer asks if the client was "firmly resettled" in some other country.
An immigration judge in Houston, TX told me, "No physical harm, no asylum." He was wrong, but his viewpoint remains popular. You should find out quickly how strong your client's case is. If he suffered no physical harm, you are going to have to work much harder.
Courts have denied asylum to people who were detained and beaten: Bocava v. Gonzales, 412 F.3d 257, 263-64 (1st Cir. 2005)(being arrested, beaten twice, and threatened with death); Prasad v. INS, 47 F.3d 339 (9th Cir. 1995)(being detained for four hours, hit in stomach and kicked).
If he has any scars, take photos immediately, so you don't forget. A scar resulting from being hit by a prison guard is going to help a great deal. A scar resulting from falling off of a bicycle at age ten will help because the client can tell the Judge: "this scar is NOT from the bad guys." Such testimony will impress the Judge and will enhance the credibility of the client.
Smith will say, "What? What do you mean?" Then, you repeat the question: "Does anyone agree with you, that you suffered harm?" Smith will then say, "Oh sure, everyone knows I suffered." You say, "That's nice; tell me the name of just one person who agrees with you!"
Hopefully, Smith will say, "My mother Mary agrees with me." Then you say: "Good! Will she write a letter, and send it to me within 14 days?"
Silence will descend upon your office. Smith will be thinking about the logistics of such a project. Maybe Smith will say, "Well, no, mother cannot write a letter because she is illiterate and lives in a small village with no postal system." Then you say: "OK, who else agrees with you, who can write a letter?"
If Smith does not know a person who can write a letter of support, then he will have great difficulties later. Judges routinely criticize asylum applicants who do not produce letters of corroboration. In re J-Y-C-, 24 I&N Dec. 260, 265 (BIA 2007); In re V-T-S-, 21 I&N Dec. 792, 797 (BIA 1997).
The trier of fact is authorized to demand corroboration even where the applicant is credible. Such "evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." INA § 208(b)(1)(B)(ii).
Is it rude if the lawyer interrupts the client to ask these questions?
There is a school of thought which says, "When the asylum applicant comes to your office, let him talk at length about his problems. Do not interrupt; be supportive; say 'hmm' at times, let the applicant tell his story in his own way."
If the lawyer has unlimited time and no other deadlines, this method has some advantages. However, I still advise you to ask the five questions at some point during the first hour. Afterwards, if you are so inclined, you can schedule another session.
David L. Cleveland a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 28 different countries.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.