Since the news broke that Nafissatou Diallo, a hotel housekeeper in New York who claims she was raped by Dominique Strauss-Kahn, admitted to lying on her asylum application, there has been much discussion about the problem of asylum fraud.  “Solutions” to the problem of asylum fraud have come from various quarters, and so I thought I would address a couple of them here.

First, though, I must mention that the problem of asylum fraud seems to me overblown.  In my practice, I might do 35 or 40 asylum cases each year.  Some, I suspect to be fraudulent (though I try to be cautious in reaching such a conclusion, as I discuss here); others are clearly bona fide.  In the U.S., between the  Asylum Offices and the Immigration Courts, about 21,000 people are granted asylum each year.  Compared to the approximately one million immigrants coming to our country annually, the total number of asylum seekers is quite small (2%).  Even if many of the cases are false, the numbers just aren’t that significant.  That said, I suppose I understand the desire to reduce fraud, although I don’t accept that it is worth denying legitimate asylum seekers in order to weed out some fraudulent cases.  Anyway, enough of my ramblin’.  Here is one proposed solution, and my response:

In an op-ed in the Philadelphia Inquirer, Temple University Law School Professor Jan C. Ting suggests that “asylum claims should be removed from the Departments of Homeland Security and Justice, and returned to the Department of State, whose foreign service officers are best informed of conditions in various foreign countries and therefore most likely to detect false stories and recognize the truth.”  Professor Ting claims that “there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice” and that “Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.”

Professor Ting fails to name the nefarious “outside groups” that are supposedly applying “political pressure” to asylum adjudicators.  The reason for this, I suspect, is because there are no such people pressuring adjudicators.  Sure, there are groups (such as TRAC) that track and publish asylum statistics.  When such information is made public, outliers (decision-makers who grant asylum too often or too rarely) might feel pressure to conform, but this is hardly improper influence.  Indeed, when an adjudicator’s grant rate is out of line with the mainstream, it is completely appropriate to examine whether something is amiss.  Other “groups” might lobby for reforms to the system that make it easier to obtain asylum (just as certain restrictionist organizations lobby to tighten up the asylum system), but again, there is nothing improper about that.  Finally, as for Professor Ting’s proposal that foreign service officers who “are best informed of conditions in various foreign countries” should adjudicate cases, this seems impractical and unlikely to really reduce fraud.  The plurality of asylum seekers are from China.  Do we really have enough foreign service officers familiar with China to leave their duties at DOS and adjudicate thousands of asylum cases?  If we have an asylum seeker from, say, Burundi, do we search out and find a foreign service officer familiar with that country and send her to adjudicate the case?  I’d venture that whatever marginal benefit we might receive from using FSOs to adjudicate cases will be more than counteracted by the officers’ lack of experience (and interest) in deciding such cases.  In short, it is better to allow decision-makers who know the asylum law to make decisions, and if they need to consult an expert at DOS, they should do so.

Next, I’ll discuss a proposal by Mark Krikorian, Executive Director of the Center for Immigration Studies, to expand the “Safe Third Country” idea.  But I’ll save that for a future post.