On July 1, 2014, the BIA issued a new decision in Matter of P-S-H- which discusses fraud in the asylum process and what the government must prove when it wants to revoke an already-granted asylum application.
An asylum lawyer’s job begins with finding out what actually happened. That requires careful interviews, competent interpretation, and a willingness to ask difficult questions about the evidence. A lawyer must never invent facts, encourage embellishment, or submit evidence the lawyer knows is false.
Those responsibilities also require care in drawing conclusions. An inconsistency may deserve investigation without establishing fraud. A person may tell the truth and still fail to qualify for asylum. And a client may discover that a preparer submitted statements the client never made or understood.
Preventing fabrication requires attention to those distinctions. The consequences of getting them wrong can be severe.
What Matter of P-S-H- Actually Holds
in Matter of P-S-H-, 26 I&N Dec. 329 (BIA 2014), the Board of Immigration Appeals addressed what the government must prove to terminate an existing asylum grant because of fraud.
The Board required two separate showings: fraud in the application, and proof that under the true facts the applicant was not eligible for asylum when it was granted. Under the Board’s interpretation, the first showing does not require proof that the applicant knew about the fraud.
But proof of fraud alone is insufficient. The Board remanded because the Immigration Judge had not adequately considered whether the applicant remained eligible despite the fraudulent evidence. The decision also acknowledged conflicting Eighth Circuit authority concerning the applicant’s knowledge and reserved how it would address cases arising there.
For lawyers and clients, the practical lesson is straightforward: misconduct by a preparer can jeopardize an asylum grant, including when the applicant did not knowingly participate. Understanding and reviewing what is submitted is crucial.
Investigate Questionable Evidence
Two examples from P-S-H- illustrate the work an attorney should do before submitting supporting documents.
Affidavits with identical wording
Two supporting affidavits used the same wording. The attorney told the applicant to obtain another affidavit worded differently. But changing the wording does not resolve the underlying question: how were the statements produced?
There may be an innocent explanation. Two witnesses may have used the same translator or received help from the same person. But the lawyer should determine whether each statement reflects that witness’s own knowledge and whether the witness reviewed and adopted it.
Useful questions include:
- Who drafted and translated the statement?
- What did the witness personally observe?
- Was the statement read back in a language the witness understands?
- Did anyone add facts the witness did not provide?
The purpose is to establish accuracy. Making questionable evidence look less suspicious does nothing to establish its truth.
Documents that conflict with the account
Another supporting statement described a month-long hospital stay, while the government’s evidence indicated that the facility permitted only overnight stays.
An attorney likely has no independent knowledge of a hospital overseas. But the attorney can review the document with the client, ask where it came from, and investigate discrepancies.
Family members sometimes prepare statements or obtain documents while trying to help. The client may not have read them, particularly if the client cannot read or the documents are in an unfamiliar language. Each document still needs careful review.
A genuine claim can be damaged by false supporting evidence. Clients and witnesses should understand that they must describe what they know, identify what they learned from others, and leave out details they cannot honestly support.
Make Sure the Client Understands the Application
A signature should follow meaningful review.
Before filing, counsel should review the application and declaration with the client in a language the client understands. When the client cannot read, that may require reading the documents aloud through a competent interpreter.
That review should give the client room to correct mistakes, express uncertainty, and identify statements supplied by someone else. Lawyers should explain that an approximate date should remain approximate and that a detail the client does not remember should never be supplied merely to make the account appear complete.
If a client says a previous preparer invented part of the claim, counsel must take that disclosure seriously. The lawyer should establish what was submitted, what the client actually said, and what steps are needed to address the false information.
Explain the Consequences Accurately
Fabrication can damage credibility, lead to denial, and jeopardize an existing asylum grant. A formal finding that an applicant knowingly filed a frivolous asylum application carries an additional consequence: permanent ineligibility for benefits under the Immigration and Nationality Act, subject to the statutory requirements, including notice.
That finding requires a separate legal analysis. Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), requires notice, a specific finding of knowing frivolousness, sufficient evidence of deliberate fabrication of a material element, and an adequate opportunity to explain discrepancies or implausible aspects of the claim. An adverse credibility finding does not automatically establish frivolousness.
Even a frivolousness finding does not foreclose withholding of removal or protection under the Convention Against Torture.
Clients need a clear explanation of these consequences early in the representation. They also need to understand that losing a case, misunderstanding a question, or making an honest mistake is different from deliberately fabricating a material element of an asylum application.
Truthful Representation Requires Careful Judgment
Lawyers must refuse to participate in fabrication. They must also resist treating every discrepancy, unsuccessful claim, or unusual document as proof of dishonesty.
The work is concrete: listen carefully, investigate questionable evidence, review submissions with the client, correct errors, and explain the consequences of false statements. Those practices protect clients and give adjudicators a reliable record on which to decide the case.
An asylum applicant deserves a decision based on the applicant’s own facts and evidence. Careful, truthful representation helps make that possible.