As lawmakers consider changes to the asylum system, one area of concern is asylum fraud.

The Senate Bill, in its current form, would eliminate the one-year asylum filing deadline. This deadline was created in an effort to stop asylum fraud. In reality (and as I discuss here), the one-year deadline does little to stop fraud, but often harms legitimate refugees. What, then, could the Senate do to help reduce asylum fraud? Below are a few suggestions:

• Investigate and Prosecute Attorneys and Notarios Suspected of Facilitating Fraud – Based on my experience and my conversations with Asylum Officers and DHS attorneys, I believe that a small number of attorneys and notaries are responsible for a large percentage of fraud. Asylum Officers, DHS Attorneys, and Immigration Judges will often harbor suspicions about which attorneys and notaries are producing fraudulent asylum cases. The Government could (1) create a national database of suspected fraudsters; (2) question the clients of suspected fraudsters closely, in order to determine what role the attorney or notario played in preparing the case. Such information could be entered into the database to help build a case against the suspect; (3) if there is sufficient evidence against a particular fraudster, the person could be investigated; (4) attorneys and notarios should be prosecuted for fraud, and—where prosecution is not possible—a bar complaint should be filed against suspected attorneys; and (5) where possible, notarios should be prosecuted for practicing law without a license.

• Create a Mandatory Immigration Bar – The Executive Office for Immigration Review (“EOIR”) is in the process of creating an electronic registry for attorneys who practice before the Immigration Courts. This registry could be expanded into a mandatory immigration bar. Immigration Judges and Asylum Officers who suspect an attorney’s involvement in fraud could submit a complaint to the bar for investigation. Also, aliens who have been victimized by an attorney could make a complaint to the bar association. 

• Create a Mandatory Notario Registry – The asylum form, Form I-589, requires that the applicant give the name and contact information for whoever helped the applicant prepare the form. The I-589 form could request additional information about the preparer: (1) whether she charges a fee; (2) what her relationship is to the applicant (hired professional, friend, family member); (3) whether she is an attorney; (4) if she is not an attorney, whether she has informed the applicant that she is not an attorney; and (5) a copy of her photo ID. DOJ and DHS could require all hired preparers to register, and could track the cases they submit in a notario data base. Notarios who engage in bad behavior could then be punished and/or prevented from providing services to asylum applicants.

It seems to me that the above approaches would do more to reduce fraud than the one-year asylum filing deadline. In my experience, the deadline does nothing to stop fraudulent cases.  Instead, it tends to block legitimate asylum seekers who are ignorant of the law, or who don’t file because they hope the situation back home will improve. Other people miss the deadline because they have been traumatized in their country and they do not want to re-live their difficult experiences by having to prepare an asylum case.  One group that has been particularly hard hit by the one-year deadline is LGBT asylum seekers. Often, such people are not “out” when they come to the United States, and they need time before they are able to discuss their sexual orientation publicly. Another group disproportionately affected by the deadline is women, who often fail to file due to shame or lack of knowledge about the asylum system.

Requiring notarios and attorneys to register, and keeping track of them, is more work than simply imposing an arbitrary deadline, but it would have the virtue of actually doing something to solve the problem.