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Rose Linton

Abstract

Every day, Asylum Officers (AOs) and Immigration Judges (IJs) hear cases to determine if the asylum seeker has a genuine claim to protection under the Refugee Act, which prohibits returning a refugee to a country where her life or freedom is threatened due to race, religion, political opinion, nationality, or membership in a particular social group. AOs and IJs are aware that their decision may mean life or death for an asylum seeker. They are also aware that false claims are “distressingly common,” that unscrupulous attorneys and unauthorized practitioners of immigration law have perpetrated fraudulent asylum schemes, and that granting asylum where it is not merited encourages asylum fraud and weakens the immigration system. The American immigration system poses challenges to both the asylum seeker and the decisionmakers. Immigration law has been described as a “labyrinth,” similar in complexity to the Internal Revenue Code. Asylum seekers are often unrepresented, unfamiliar with the law, and nonfluent in English. Yet, even immigrants who are represented by counsel may still be at a disadvantage; according to one study, the level of representation in immigration is the worst of any civil field. In addition, asylum claims depend heavily—sometimes entirely—on the credibility of the applicant. Due to the difficulty in obtaining documentary and testimonial evidence regarding conditions of persecution, the asylum seeker’s own testimony is often the only evidence. The consistency, detail, and specificity with which an asylum seeker relates her story—particularly the most traumatic events—is of prime importance to the determination of whether or not asylum is granted. The cry for immigration reform is growing stronger. Many proposals advocate substantive reforms to asylum law, including broadening asylum protections and streamlining asylum procedures; granting rights of discovery in immigration court; and establishing an inquisitorial, rather than an adversarial, system for asylum proceedings. Substantive reforms, however, require congressional action and are mired in political debate. This Note proposes a procedural reform to the affirmative asylum process: the direct and proactive disclosure of routine documents in the applicant’s file, bypassing the need for a Freedom of Information Act (FOIA) request. This reform is politically feasible because it is within agency discretion and requires no legislative action. While proactive disclosure in affirmative asylum adjudications is not a substitute for comprehensive immigration reform, it is a pragmatic step that would improve efficiency, lower administrative costs, increase confidence in the immigration system, and lead to fairer and more accurate determinations of credibility. Every day, Asylum Officers (AOs) and Immigration Judges (IJs) hear cases to determine if the asylum seeker has a genuine claim to protection under the Refugee Act, which prohibits returning a refugee to a country where her life or freedom is threatened due to race, religion, political opinion, nationality, or membership in a particular social group. AOs and IJs are aware that their decision may mean life or death for an asylum seeker. They are also aware that false claims are “distressingly common,” that unscrupulous attorneys and unauthorized practitioners of immigration law have perpetrated fraudulent asylum schemes, and that granting asylum where it is not merited encourages asylum fraud and weakens the immigration system. The American immigration system poses challenges to both the asylum seeker and the decisionmakers. Immigration law has been described as a “labyrinth,” similar in complexity to the Internal Revenue Code. Asylum seekers are often unrepresented, unfamiliar with the law, and nonfluent in English. Yet, even immigrants who are represented by counsel may still be at a disadvantage; according to one study, the level of representation in immigration is the worst of any civil field. In addition, asylum claims depend heavily—sometimes entirely—on the credibility of the applicant. Due to the difficulty in obtaining documentary and testimonial evidence regarding conditions of persecution, the asylum seeker’s own testimony is often the only evidence. The consistency, detail, and specificity with which an asylum seeker relates her story—particularly the most traumatic events—is of prime importance to the determination of whether or not asylum is granted. The cry for immigration reform is growing stronger. Many proposals advocate substantive reforms to asylum law, including broadening asylum protections and streamlining asylum procedures; granting rights of discovery in immigration court; and establishing an inquisitorial, rather than an adversarial, system for asylum proceedings. Substantive reforms, however, require congressional action and are mired in political debate. This Note proposes a procedural reform to the affirmative asylum process: the direct and proactive disclosure of routine documents in the applicant’s file, bypassing the need for a Freedom of Information Act (FOIA) request. This reform is politically feasible because it is within agency discretion and requires no legislative action. While proactive disclosure in affirmative asylum adjudications is not a substitute for comprehensive immigration reform, it is a pragmatic step that would improve efficiency, lower administrative costs, increase confidence in the immigration system, and lead to fairer and more accurate determinations of credibility. Every day, Asylum Officers (AOs) and Immigration Judges (IJs) hear cases to determine if the asylum seeker has a genuine claim to protection under the Refugee Act, which prohibits returning a refugee to a country where her life or freedom is threatened due to race, religion, political opinion, nationality, or membership in a particular social group. AOs and IJs are aware that their decision may mean life or death for an asylum seeker. They are also aware that false claims are “distressingly common,” that unscrupulous attorneys and unauthorized practitioners of immigration law have perpetrated fraudulent asylum schemes, and that granting asylum where it is not merited encourages asylum fraud and weakens the immigration system. The American immigration system poses challenges to both the asylum seeker and the decisionmakers. Immigration law has been described as a “labyrinth,” similar in complexity to the Internal Revenue Code. Asylum seekers are often unrepresented, unfamiliar with the law, and nonfluent in English. Yet, even immigrants who are represented by counsel may still be at a disadvantage; according to one study, the level of representation in immigration is the worst of any civil field. In addition, asylum claims depend heavily—sometimes entirely—on the credibility of the applicant. Due to the difficulty in obtaining documentary and testimonial evidence regarding conditions of persecution, the asylum seeker’s own testimony is often the only evidence. The consistency, detail, and specificity with which an asylum seeker relates her story—particularly the most traumatic events—is of prime importance to the determination of whether or not asylum is granted. The cry for immigration reform is growing stronger. Many proposals advocate substantive reforms to asylum law, including broadening asylum protections and streamlining asylum procedures; granting rights of discovery in immigration court; and establishing an inquisitorial, rather than an adversarial, system for asylum proceedings. Substantive reforms, however, require congressional action and are mired in political debate. This Note proposes a procedural reform to the affirmative asylum process: the direct and proactive disclosure of routine documents in the applicant’s file, bypassing the need for a Freedom of Information Act (FOIA) request. This reform is politically feasible because it is within agency discretion and requires no legislative action. While proactive disclosure in affirmative asylum adjudications is not a substitute for comprehensive immigration reform, it is a pragmatic step that would improve efficiency, lower administrative costs, increase confidence in the immigration system, and lead to fairer and more accurate determinations of credibility.

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