Sometimes, the evidence you leave out of an asylum case is as important as the evidence you include.
Here, we’ll look at what evidence is best kept out of a case, how to decide whether to submit evidence that has harmful and helpful components, and how to evaluate the risks inherent in excluding unhelpful evidence. (more…)
In order to win an asylum case, you have to prove that there is a reasonably possibility you will face harm in your home country. To do this, you need evidence. Evidence about any past harm, evidence of threats against you, evidence of country conditions, etc. One piece of evidence that can be helpful is a report from an expert witness. Here, we’ll discuss the different types of expert reports and how they can help your case.
First, let’s briefly examine the difference between a fact witness and an expert witness. A fact witness is someone who knows about some aspect of your case. For example, maybe your cousin saw the police arrest you from a political rally. Your cousin knows about one piece of your story, and she can write a letter explaining what she knows. She is a fact witness. An expert witness usually does not have any first-hand knowledge of your case. Rather, according to the Federal Rules of Evidence, an expert is someone with “with scientific, technical, or other specialized knowledge” who can “assist the trier of fact to understand the evidence or to determine a fact in issue.” For example, if you are a member of a small ethnic group that is persecuted by your home government, you might find a professor who has studied your group and who can write a report explaining how the government treats members of your ethnic group. The professor is an expert witness.
In terms of admitting expert testimony, the Federal Rules of Evidence are not binding in Immigration Court or at the Asylum Office, but they do provide useful guidance. To be admissible under the Federal Rules, expert testimony must meet three criteria: (1) It must be relevant, meaning it will “assist the trier of fact to understand the evidence or to determine a fact in issue;” (2) The expert witness must be “qualified as an expert by knowledge, skill, experience, training, or education;” and (3) The expert’s testimony must be reliable, in that it “is based upon sufficient facts or data… is the product of reliable principles and methods, and [the expert] witness has applied the principles and methods reliably to the facts of the case.” The standard for admitting evidence in immigration proceedings is more liberal: The “sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.” Nevertheless, by following the guidance from the Federal Rules, you can help ensure that any expert testimony is given maximum credence by the fact finder.
Expert testimony is usually submitted in writing, in the form of an expert report. Accompanying the report is the expert’s CV or a statement of qualifications. It is also helpful to list instances where the expert has previously been recognized as an expert witness by other courts. Experts witnesses sometimes come to court to testify (or testify by telephone).
Expert testimony can be used to support different aspects of an asylum claim. Probably the most common expert report we use is a forensic medical or dental exam. In these reports, the doctor or dentist examines an asylum applicant’s injury to determine whether that injury is consistent with the applicant’s description of what happened. For example, we once had a client who was stabbed in the arm by members of the Taliban. He had a large scar running the length of his forearm. Of course, no medical expert can determine whether the injury was caused by the Taliban. But the expert can opine about whether the scar is consistent with a knife wound. Some experts can also discuss the approximate age of a scar based on its appearance. To create a report, the client would normally need to appear for an in-person examination and give a written description of the incident to the doctor. For this reason, we try to complete the client’s affidavit (or at least the relevant portion of the affidavit) before he goes to see the doctor. That way, he has a description of the incident to bring with him to the exam.
A subset of the forensic medical exams is an evaluation of female genital mutilation/cutting (“FGM/C”). Victims of FGM/C are often able to obtain asylum, and such exams are crucial to these cases. The World Health Organization has categorized FGM/C, and it is helpful for the doctor to explain what category the client’s FGM/C fits into.
Another common type of report that we see are mental health evaluations. These are created by psychologists or other mental health professionals to evaluate the psychological harm (such as post traumatic stress disorder) caused by persecution or the threat of persecution. Sometimes, these reports are generated during the course of treatment; other times, the client visits the mental health professional one or two times and obtains an evaluation for purposes of the asylum case. I tend to prefer the reports created by a treating professional, but in many cases, asylum applicants do not have access to health insurance and cannot afford treatment. In such cases, it may be possible to obtain a pro bono evaluation, which the client can use to bolster her asylum claim. We also use these reports to try to expedite asylum cases. For example, if the report indicates that the applicant’s mental health is being harmed by the long wait, we can sometimes convince the Asylum Office or the court to expedite the person’s case.
Country condition experts can also assist with asylum cases. In my own practice, I use such experts only rarely, as most of the information we need can be found on-line in human rights reports or news articles. However, in specialized situations, a country condition expert can be critical. For instance, an expert can help establish that a person belongs to a particular social group by showing that the society in question recognizes that social group as a distinct entity. Another example is where an expert is needed to interpret a foreign law, such as whether an adoption is legally valid.
In short, there are many ways that experts can help bolster an asylum case. A good starting point for identifying experts and utilizing them effectively is the asylum expert handbook created by Professor Deborah M. Weissman and her students at UNC Chapel Hill Law School. Other helpful resources include the expert data base at the Center for Gender & Refugee Studies at UC Hastings Law School and the country condition expert list from the Rights in Exile Programme. Some experts on these lists work pro bono; others charge a fee.
Not all asylum cases need testimony from an expert witness (indeed, most of my own cases do not), but where it is needed, it can make the difference between a denial and a grant.
A poet once said, “It’s not how you feel; it’s how you look. And you look mah-velous!”
What does this gentle wisdom have to do with asylum cases? Simply this: Whether you have a strong case or a weak case, if you present your case in an organized and neat fashion (i.e., if you make it look marvelous), you are more likely to be granted relief.
How do I know this is true? I really don’t. I just made it up. But it seems true. Plus, I have talked to Asylum Officers and Immigration Judges, and I know they sometimes become frustrated with disorganized applications. Also, it makes sense–if you make the decider’s job easier, you are more apt to get a good decision. So how should an asylum application look?
The first thing to know is that there are different rules for the Asylum Office and the Immigration Court. The Asylum Office rules are more lenient. When we prepare evidence for the Asylum Office, we basically follow the Immigration Court rules. In this way, we are prepared in the event that the case goes to Court. Also, the Court rules provide good guidance for how to organize a packet of documents.
First, let’s talk about Asylum Office cases. For such cases, we include a cover letter. This letter is short, and simply explains what type of application we are filing. If there are any issues of particular note, we might mention those in the cover letter–for example a one year bar issue, a criminal conviction or a prior asylum application.
Next, we include the packet of documents. We do not send any original documents; we submit copies (we have the client bring any originals to the interview). We also keep a copy of the entire packet for ourselves. Per Asylum Office rules, we submit two copies of the entire packet of documents. Each page of the packet is numbered. I put the numbers in the bottom center of each piece of paper. Also, each individual exhibit is labeled with a letter (Exhibit A, Exhibit B, etc.). In front of each exhibit is a separate page with a tab (A, B, C, etc.). If the packet of exhibits is tabbed and paginated, it is easy for the officer to find what she needs.
On top of the packet of exhibits, we include an index. The index lists each exhibit by letter and page number. I also include a brief description of each exhibit, so that the officer can read my summary, rather than a (sometimes) lengthy document. An abridged example of how we do the index is here: Example Index
The exhibits we typically submit, aside from the original I-589 form, include copies of: All passports, the applicant’s affidavit, birth certificate, marriage certificate(s), divorce documents, national ID cards, identity documents for spouse and children (passports, birth certificates, national ID cards), education documents (diplomas, transcripts, awards), employment documents, any criminal or arrest documents (from the U.S. or overseas), police reports, medical reports (including forensics reports about scars or psychological trauma), membership documents for political, religious or other organizations, letters from witnesses, threat letters or evidence of threats, relevant photos (of political activities, injuries, etc.), relevant news articles, and country and human rights reports. Any documents not in English need to be translated with a certificate of translation. Of course, the documents we submit vary, depending on the case and what we need to prove. But the format is always the same.
Also, it is a good idea to submit the exhibits on time. These days, under LIFO, we usually complete the entire case and submit everything together with the I-589 application (since we often-times receive a quick interview date). However, if you are submitting documents after the case has already been filed, make sure your Alien number is on the cover page and the index, and make sure everything is submitted on time. Some asylum offices want your exhibits at least one week prior to the interview. You can contact the local asylum office to ask about the filing rules.
If you have a case in Immigration Court, the rules are more strict. First of all, you need to submit one copy of everything to the Court and one copy to the DHS Office of the Chief Counsel (the prosecutor). Second, you need to follow the rules related format, which you can find in the Immigration Court Practice Manual (follow the link called “OCIJ Practice Manuel;” chapter 3 and appendices F and G are particularly useful for format). Also, you need to submit a witness list (check chapter 3 of the Practice Manuel, page 57-58). The list of exhibits will look similar to what I described above for the Asylum Office index. For non-lawyers, this is all a bit much, and for this reason, if you have a case before the Immigration Court, you would do well to find an attorney to assist you (if you cannot afford a lawyer, you might be able to find one for free).
One last tip: If possible, submit all documents by hand (and bring your copy of the exhibits so the Asylum Office or Court can stamp it with a proof of service) or by certified mail. It is common for evidence to get lost, and so it is a good idea to have proof that you submitted the evidence.
Whether your case is before the Asylum Office or the Immigration Court, it will benefit you to submit a neat, well-organized packet of evidence. And by the way, darling, you look mah-velous!
If the asylum seeker’s affidavit is the heart of her application, evidence might be considered the lungs: It provides the oxygen that allows the heart to function. Or maybe anatomical analogies are just weird. The point is, evidence in support of an asylum application is crucial to the application’s success. But what is evidence? And what happens if you can’t get it?
Let’s start with a bit about the law. The REAL ID Act of 2005 provides–
The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
See INA 208(b)(1)(B) (emphasis added). In other words, if you claim that something happened (you were unlawfully detained), you are required to provide evidence about it (a police document), and if you are unable to provide such evidence, you should be prepared to explain why you could not get the evidence (maybe the police in your country don’t issue receipts for illegally arresting people).
What this means is that you should try to get evidence supporting your case. Different lawyers may have different views on this, but I think you should get evidence for every claim you make in your affidavit and I-589. That includes evidence not directly related to the asylum claims, such as evidence of education, employment, awards and certificates, membership in organizations and religious institutions, travel to third countries, documents used to obtain your U.S. visa(s), birth certificates for you and your immediate family members, all passports for you and your immediate family members, marriage and divorce documents, national ID cards, military service records, arrest records, and general medical records. In other words, evidence about who you are and what you’ve been doing with your life.
Of course, you also need to get evidence related to your asylum claim. So if you were arrested, harmed or threatened, get evidence about what happened: Police and court documents, medical records and photos of injuries/scars, copies of any threats. If your case involves political activity in your country or elsewhere (including the U.S.), get party membership cards, receipts, letters from the party, and photos at political events. If it is a religious case, get evidence of your religion: Letters from church leaders and/or members, photos at religious events, certificates, membership documents, and government IDs, which sometimes list religion. If the case is based on nationality, ethnicity or race, get evidence that you belong to the group in question, such as identity documents.
For people claiming asylum based on membership in a particular social group (“PSG”), the evidence needed depends on the group. For LGBT cases, get evidence of sexual orientation, such as membership in gay rights groups and evidence of past relationships. If your PSG involves family members, get evidence of familial relationships–birth and marriage certificates, photos, and other family documents, including evidence that other members of your family were harmed or threatened. If you have a domestic violence case, get evidence of the relationship (marriage certificate, birth certificates of children, photos together, other documentation that you were in a relationship) and of the harm.
If there are newspaper or magazine articles, country reports or human rights reports–or even blog posts or Facebook posts–that support your asylum claim, include those. If you are using a newspaper or magazine, make sure to include the cover page of the newspaper, and the entire article. If you are using an on-line resource, make sure to include the website address.
You should also get letters from family members, friends, and colleagues who can attest to your problems (I’ve posted about how to write a good letter here). In many cases, it is impossible to get direct evidence of harm, and so letters from people attesting to your problems is all that you can get. While letters from family members and friends are not as valuable as more direct evidence, they are still valuable, and we always include such letters if we can get them.
Some people have scars or other evidence of physical harm (including FGM). In such cases, you should get a forensic medical report to help bolster your claim about how you received the scar (in other words, that the scar was caused by torture as opposed to a car accident or disease). Of course, the doctors who write such reports do not know for sure how you received a particular scar. But they can state that the scar is consistent with your explanation of how it was received. If you cannot afford a forensic exam (or find a doctor to do the exam pro bono), at least take photos of the scars and include them with your evidence. Normally, we have our clients take a close-up of the scar and also a photo from further away, so we can see the person’s face (so we know the scar is on that particular person’s body).
We also sometimes submit other types of expert reports. The most common are psychological reports (that indicate PTSD, for example). In my opinion, the most effective reports are the ones created in the course of treatment. The less effective reports are created after one or two meetings with the asylum seeker, and were clearly created for purposes of the asylum case. Sometimes, we also use expert reports related to country conditions, though these days, we can usually find what we need on the internet.
If any of your close family members applied for or received asylum, refugee or other humanitarian status (including SIV status) in the U.S. or abroad, try to get evidence of that status. In general, it is very helpful to show that other family members, who are often similarly situated, have been persecuted or have already received asylum. Indeed, we recently did a case in Texas where our client’s close family members all had SIV status (meaning that the U.S. government determined those family members faced a threat in the home country due to their cooperation with the U.S.). This evidence alone was enough to convince the Judge to grant asylum to our client.
You should also submit country condition information. Some lawyers submits lots of country condition information. I am not one of those lawyers. I think that redundant reports are counterproductive and distracting. It is standard procedure to submit the U.S. State Department Report on Human Rights Practices (or at least an excerpt of the relevant portions). Also, if applicable, we submit the State Department Report on International Religious Freedom. If those reports are not sufficient, we submits reports from other credible organizations, like Human Rights Watch or Amnesty International. There are also lots of issue-specific reports from groups like the Committee to Protect Journalists, Doctors Without Borders, and International Christian Concern, to name a few. If there are news articles from credible sources, we submit those too (if they are relevant and not redundant). Finally, if there are specific articles or reports from less-reliable sources that speak directly to the issues in the case, we submit those as well.
Of course, any documents not in English need to be properly translated.
Finally, it is important to review all the evidence to ensure that it is consistent with your statement and with the other evidence submitted (for example, if your statement says that you lived in a red house, your witness letters should not say that you lived in a blue house). Inconsistent evidence can lead to a determination that you are not credible, so be careful about this.
The evidence for each applicant is case specific. If you have an attorney, one of the attorney’s jobs is to evaluate your case and determine what evidence is helpful. If you do not have an attorney, you should still do your best to obtain as much evidence as possible. This will help increase your chances for a successful outcome.
One key piece of evidence in most asylum cases is the witness letter. Under the REAL ID Act, asylum applicants are required to obtain evidence where such evidence is reasonably available. Often times, the only evidence that is reasonably available is a letter from a witness. So what makes a good witness letter?
First, the witness needs to identify herself and state how she knows the applicant. While this may seem like a no-brainer, you’d be surprised how many witnesses don’t include this information. I prefer that the witness states her name, address, phone number, and email address. Then she should describe how she knows the applicant (for example, “Mr. X and I met in the church choir in 2003.”).
Next, the witness should list what they know about the applicant’s claim–here, the attorney should emphasize to the witness (or the applicant who will relay it to the witness) that she should focus on the legally relevant facts. Extraneous material is a distraction. I can’t tell you how many witness letters I’ve seen where the witness rambles on about how he hopes everything is fine in America and that he is praying for the applicant. Who cares? Instead, the witness should mention what he or she knows about the case. One way to start this section of the letter is like this: “Mr. X asked me to write what I know about his problems in Cameroon. Here is what I know…”
Also, I prefer that the witness write about what she has seen with her own eyes. Did the witness see the applicant engage in political activity? Did she see the applicant get arrested? Did she see the applicant’s injuries after he was released from detention? The witness should write what she saw (and the date that she saw it). Secondhand information is admissible, but most fact finders will give such information little weight.
I also hate when witnesses give me general statements, like “Please don’t return to Ethiopia, it is dangerous here.” Not helpful. We want specific information about why it is dangerous, not general, conclusory statements that really tell us nothing. A better letter might say, “Please don’t return to Ethiopia, as the police came to the house on March 4, 2012 and they asked about you.”
My clients often ask about how long the letter should be. My hope is that the letters will be under one page, though sometimes more space is necessary if a witness has a lot of information. I prefer that the witness gets to the point and doesn’t waste time with irrelevant information, so hopefully that leads to shorter letters. Also, the longer the letter, the greater the possibility for inconsistencies.
Finally, I prefer that the witness include a copy of her photo ID (passport, work ID, school ID, etc.). Also, if the witness and the applicant know each other from school, for example, it would be nice to have some evidence that the witness attended the school (like a transcript). Of course, this assumes that the applicant has also included evidence that he attended that school.
One final note about witness letters. Unless they are consistent with the applicant’s affidavit, they will harm the case. I would rather submit no letter than an inconsistent letter. For this reason, it is important to compare the witness letters with the applicant’s affidavit (and his other evidence) to ensure consistency. While people often have different recollections of events–even dramatic events–the fact finder in an asylum case will likely draw a negative inference from inconsistent statements, and this could cause the application to be denied as not credible.
Witness letters are often crucial to a successful asylum application. A well-crafted letter will help your client’s case and could make the difference between a grant and a denial.
Some clients just don’t get it. No matter how often you tell them what evidence they need for their case, they bring you bupkis.
Generally, when I start an asylum case, I ask the client to give me the general story about why he needs asylum. I then prepare a detailed list of documents that he should get: letters from witnesses, school records, work records, medical reports, police reports, etc., etc. I explain to the client why he needs to get these documents, and why, under the REAL ID Act, he should try to get the documents even when he thinks he will not be able to obtain them (for those of you lucky enough not to be familiar with the REAL ID Act, the Act requires an asylum seeker to obtain evidence that is reasonably available. If the alien cannot obtain a particular piece of evidence, he must explain why he could not get it. Thus, if the client tries to get all relevant evidence–even if he fails–at least he will be able to explain to the adjudicator what efforts he made to obtain the evidence and why he failed to get it).
I make analogies to help the client understand (evidence is like the foundation upon which a house, i.e., your case, is built). I make them sign a document indicating that it is their responsibility to obtain the evidence on the list, and that if they don’t get the evidence, they could lose their case.
Is all this excessive? You would think so. You would think that a person who fears persecution in her homeland and who shells out a pretty penny for attorney’s fees would be motivated to do everything possible to win her case.
Many clients do, in fact, make diligent efforts to get evidence in their cases. It is surprising, however, the number of asylum seekers who do nothing or very little to help themselves. Such clients greatly reduce their chances for a successful outcome.
So what can be done about these slacker-clients? One possibility, of course, is to do nothing. If the client does not care enough about his case to collect evidence, maybe it is best to prepare the case with the available evidence and let the chips fall where they may. This does not seem like a very satisfactory solution, though. For one thing, there may be a legitimate reason why the client is not cooperating. Perhaps he does not understand what is needed or why such evidence is important. Maybe he is afraid or embarrassed to ask friends or relatives to help him with his case. Maybe he fears that the people sending evidence will be endangered. Some of these problems might be offset by carefully explaining why documents are needed and that all such communications are confidential. For obvious reasons, however, many asylum seekers are mistrustful of government workers (and lawyers, who often seem like government workers), and getting them to trust you–and getting them to trust “the system”–requires patience.
Another way to encourage clients to gather evidence is to nag them. “Nagging” or, more politely, “repeatedly reminding” clients to get evidence may work, but it takes time to stay on top of each client’s case. In my practice, I don’t have a lot of extra time to chase after my clients. I do, however, try to remind them once or twice about the need for evidence.
I find that giving the client a check list of needed documents is helpful. When it comes time to remind them about gathering evidence, I always refer them to the check list. It helps me remember their case as well. A check list signed by the client has an added benefit–if the case is unsuccessful, the client cannot complain that you failed to advise her about the need for evidence.
Asylum seekers are not always the easiest clients. As lawyers, we need to use our limited time efficiently. That means informing the clients about the need for documents, and periodically reminding them about what is needed. For those clients who don’t make an effort to get documents, a bit of cajoling, threatening, and/or nagging from the attorney might encourage them to gather needed evidence. And that could make the difference between a successful case and a denial.