Earlier this week, the New York Times had an article about fraud and asylum, Immigrants May Be Fed False Stories to Bolster Asylum Pleas.  The article was inspired by revelations about the maid who accused former-IMF chief Dominique Strauss-Kahn of sexual assault.  It turned out that the maid was an asylee, who likely gained asylum by fabricating a claim of past persecution. 

The NY Times asked several professionals in the field–including yours truly–to contribute their thoughts about how the asylum system can be improved.  Our comments appeared in a forum called Room for Debate.  I suggested that the government make a greater effort to prosecute lawyers and other people who help immigrants create fraudulent cases.  Not only is this more efficient than going after individual asylum seekers, but it ultimately would protect immigrants by reducing the number of fraudsters involved in the business.  Here are my comments (slightly modified since my essay in the Times was limited to 300 words and here I can use as many words as I want):  

Go After the Lawyers

There is an old adage in criminal law: Better that 10 guilty people go free than convict one innocent person. Our asylum law is based on the opposite philosophy: It is better to allow some asylum seekers to enter the United States fraudulently, than return one person to a country where he faces persecution or death. For this reason, the burden of proof for asylum is relatively low (as opposed to criminal law, where the burden for a conviction–beyond a reasonable doubt–is quite high). 

This low burden, combined with the very valuable benefit of asylum, creates an incentive for people to make fraudulent claims. The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.

It seems to me there are three main possibilities.

One option is to devote more resources to individual cases. If asylum officers, immigration judges and government attorneys could spend more time on each case, they would probably discover more instances of fraud. But attacking fraud on a case-by-case basis seems inefficient and, given limited resources, unlikely to significantly reduce the number of fraudulent claims.

Another option is to raise the burden of proof required to obtain asylum. The problem, of course, is that such a move would exclude legitimate asylum seekers, and would degrade the high moral standard our nation set when we created our asylum system.

A final — and to me, the most effective — option is to identify attorneys and others who prepare claims deemed suspicious. Investigating and, where appropriate, prosecuting these people can dramatically reduce fraud, since each such person produces and/or facilitates large numbers of false claims. A few high-profile prosecutions would also help deter others who might engage in such practices.

I have represented many asylum seekers, including journalists, human rights workers, diplomats, rape victims, and survivors of genocide. Such people have legitimate claims and would face persecution or worse if they returned home. In responding to fraud, we should remember our ethical responsibility to protect such people.