Refugee and Asylum Applications
Aliens may obtain legal status in the United States through a refugee or asylum application. In order to qualify as a refugee or asylee, one must meet the definition of a refugee outlined in the Immigration and Nationality Act. This definition states that:
“[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
The alien bears the burden of establishing past persecution or a well-founded fear of persecution, based on one of the protected grounds. Whereas refugees are applying for resettlement from outside the United States, asylees are applying for resettlement from within the United States.
“[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
The alien bears the burden of establishing past persecution or a well-founded fear of persecution, based on one of the protected grounds. Whereas refugees are applying for resettlement from outside the United States, asylees are applying for resettlement from within the United States.
FOIA in Refugee and Asylum Applications
Attorneys representing refugees and asylum seekers request access to agency records for a number of reasons, including to obtain complete records of immigration proceedings, to determine whether an alien has had a petition filed or a priority date in the past, and as general due diligence in the representation of alien clients.
Aliens being interviewed for asylum or applying for admission at the port of entry are routinely required to make statements under oath to government officials. These are often high stress situations. The applicant’s future hangs in the balance and conversing with a United States representative for the first time can be extremely intimidating. The applicant is unlikely to have received any prior coaching or legal counsel.
In these interview settings, several factors can cause a refugee or asylee to recount his story either inaccurately or in a way that does not seem credible. The applicant may not speak English and relying on a translator can result in misinterpretations that portray the facts erroneously. The applicant may refrain from telling his narrative fully and truthfully because of the presence of certain individuals in the interview room, such as spouses or children. Cultural differences between the applicant and asylum officer can lead to adverse credibility determinations, stemming from unfamiliarity with expressions or body language. Additionally, applicants may have experienced psychological trauma from persecution. Psychological symptoms can adversely affect an individual’s ability to perform in an interview. PTSD, for instance, is associated with, physical, emotional and cognitive symptoms, including hallucinations, difficulty concentrating, memory impairment and exaggerated responses.
When a refugee or asylum seeker’s FOIA request is denied, the alien is prevented from receiving notes or transcripts from initial communications with immigration officers. Yet, the Government maintains the right to use such notes to impeach aliens who provide inconsistent testimony during further proceedings. A single inconsistency between an alien’s testimony and application is sufficient for an immigration judge to deny an application for asylum, so long as the inconsistency goes to the heart of the asylum claim. Not only do FOIA denials hamper an alien’s ability to adequately prepare for a hearing or interview, but they can also frustrate an alien’s attempt to appeal an adverse determination. Documents explaining the reasons behind an adverse determination are often among those withheld under the FOIA exemptions. This leaves the applicant with little clue as to why an officer rejected his claim.
Aliens being interviewed for asylum or applying for admission at the port of entry are routinely required to make statements under oath to government officials. These are often high stress situations. The applicant’s future hangs in the balance and conversing with a United States representative for the first time can be extremely intimidating. The applicant is unlikely to have received any prior coaching or legal counsel.
In these interview settings, several factors can cause a refugee or asylee to recount his story either inaccurately or in a way that does not seem credible. The applicant may not speak English and relying on a translator can result in misinterpretations that portray the facts erroneously. The applicant may refrain from telling his narrative fully and truthfully because of the presence of certain individuals in the interview room, such as spouses or children. Cultural differences between the applicant and asylum officer can lead to adverse credibility determinations, stemming from unfamiliarity with expressions or body language. Additionally, applicants may have experienced psychological trauma from persecution. Psychological symptoms can adversely affect an individual’s ability to perform in an interview. PTSD, for instance, is associated with, physical, emotional and cognitive symptoms, including hallucinations, difficulty concentrating, memory impairment and exaggerated responses.
When a refugee or asylum seeker’s FOIA request is denied, the alien is prevented from receiving notes or transcripts from initial communications with immigration officers. Yet, the Government maintains the right to use such notes to impeach aliens who provide inconsistent testimony during further proceedings. A single inconsistency between an alien’s testimony and application is sufficient for an immigration judge to deny an application for asylum, so long as the inconsistency goes to the heart of the asylum claim. Not only do FOIA denials hamper an alien’s ability to adequately prepare for a hearing or interview, but they can also frustrate an alien’s attempt to appeal an adverse determination. Documents explaining the reasons behind an adverse determination are often among those withheld under the FOIA exemptions. This leaves the applicant with little clue as to why an officer rejected his claim.