The job of United States consular officers is to prevent undesirable aliens from obtaining visas to the United States.   But sometimes the consular officers are a bit too enthusiastic about weeding out potential asylum seekers.

In an Ethiopian asylum case I litigated earlier this week, the DHS attorney submitted as impeachment evidence a consular officer’s assessment of my client, who was interviewed at the consulate for a non-immigrant visa.  After describing why my client needed a visa (for a heart operation in the U.S.), the officer wrote:

Applicant swears she does not intend to seek asylum or stay in the US longer than needed, and has no problems that would prevent her from returning to Ethiopia.  If she files an asylum claim, it is fraudulent.

The conclusory last sentence is what really bothers me–“If she files an asylum claim, it is fraudulent.”  The consular officer does not know whether my client’s situation will change, or whether the situation in her country will change.  His statement seems to be simply an effort to prevent her from gaining asylum under any circumstances.  Not only is this unfair, but it contradicts established case law.  The BIA has held that an asylum seeker who lies to obtain a visa in order to escape her country is not ineligible for asylum once she gets to the United States, though the misrepresentation may be considered an adverse factor depending on the circumstances. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

Matter of Pula recognizes that people fleeing persecution often say or do unsavory things in order to escape danger. Granted, such case law creates a perverse incentive–if you are able to lie your way past the consular officer, you can claim asylum in the United States–but what is the alternative?  If a person honestly admits a fear of persecution in his country, the officer will deny the visa.  I suppose we could force all visa applicants to sign a statement indicating that they have no fear of return, and then enforce that agreement if they claim asylum in the U.S.  Of course, this would put us in the position of deporting people to countries where they face persecution or death, which is not only undesirable and immoral, but flies in the face of our international obligations.

All that said, I am sympathetic to the plight of the consular officers.  I’ve compiled some statistics below about the number of people who receive visas and then later claim asylum.  In FY 2010, over 14% of non-immigrant visa applicants from Ethiopia  received asylum in the U.S., a not insignificant figure (like most statistics, these are a bit murky, since I compare visa applicants in the given fiscal year with asylum grants in the same year; nevertheless, I think they provides some general guidance).  Given the high percentage of Ethiopian non-immigrant visa holders who win asylum, it is not surprising that the consular officers are pushing the envelope to stop this trend.  Here are the Ethiopian stats for the last five years:

Ethiopia

And by the way, at least in my case, the consular officer’s effort to stop my client from obtaining asylum did not work.  The Immigration Judge granted asylum and the DHS attorney agreed not to appeal.

The country that send the most asylum seekers to the U.S. is China.  Here are the stats for China (keep in mind that none of these statistics account for people who applied for asylum but were denied, or people who entered the U.S. illegally and then applied for asylum):

China

Most asylum seekers I represent come from Ethiopia and Afghanistan, so I wanted to include some information about Afghanistan.  This is a relatively new source country for asylum seekers (at least in the United States), and so the absolute numbers are not as high.  The upward trend is clear, and some Western countries are now making it more difficult for people from Afghanistan to get a visa.  Here are the statistics for Afghanistan:

Afghanistan

Data on affirmative and defensive asylum grants comes from the DHS Yearbook on Immigration Statistics.  Data on the number of non-immigrant visas issued in each country comes from the U.S. State Department.