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.
While the BIA’s conclusion is not controversial (they hold the government does not have to prove the applicant was aware of the fraud), the facts of the case gives a helpful reminder for asylum lawyers and their clients about how to avoid these messes.
While there is a natural temptation to commit fraud built into the system, applicants need to be aware of the dire consequences if they commit fraud, and their asylum lawyers need to actively work to prevent abuse of the system.
Background: Most Asylum Lawyers Don’t Want to Assist With Fraud
As I’m sure is true for most lawyers who help asylum applicants, I went to law school hoping to help people.
The first asylum case I worked on as a law clerk truly felt like an opportunity to save someone’s life. I dove into the law head-first, read as much as I could and decided immediately upon leaving law school that I wanted to practice asylum law. For the most part that decisions has led to a meaningful and rewarding career.
But what was not taught in law school was how often people engage in fraud in this process. This is a reality that immigration lawyers need to be aware of and must affirmatively work to try to prevent.
Why Do People Commit Asylum Fraud?
Since we know asylum fraud is such a problem, it is important to understand why it happens.
One reason people sometimes abuse the system is that the system itself is truly broken. There are so few visa options even for people who would truly be great additions to our nation. Also, our asylum system is designed to protect people against “persecution” but doesn’t protect people from famines, floods, wars, etc. For example, a person who comes to the United States because she has no food and would starve to death otherwise probably isn’t eligible for asylum.
Another reason people are drawn to commit asylum fraud is that the government has a really hard time preventing it. The asylum system is built upon trust, because a person fleeing persecution often will not have evidence to prove they’re in danger. The asylum offices do an amazing job of rooting out fraud, but they can’t catch it all. This is because asylum fraud may range from the relatively minor (exaggerating the number of times one was beaten up, for example) to the very extreme (i.e. concocting an entire story or fake documents out of whole cloth). Even people who might have had a legitimate asylum claim to start with at times completely ruin their case by either adding on made-up details to their story or creating fake documents to help try to “spice up” their claim.
Finally, people who had no intention to commit asylum fraud are sometimes convinced to by notarios and unscrupulous attorneys. We know this from the recent string of attorneys and notarios convicted for helping asylum applicants commit fraud. As Jason Dzubow writes about asylum fraud in the industry:
Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.
Some–perhaps most–of the fraudsters’ clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these “clients” are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand “the system,” and who have no support network in the United States.
Fighting Asylum Fraud Helps Legitimate Asylum Seekers
As attorneys, we must be vigilant in trying to avoid fraud in the asylum process. This is because when our clients are telling the truth, we need the DHS and the Immigration Judges to believe them.
An Immigration Judge who sees rampant fraud in asylum applications over and over is less likely to give a fair shot to the applicant who is genuine. We also have an ethical duty to not help our clients in fraudulent applications.
Although the attorneys in Matter of P-S-H- were actually convicted of asylum fraud, here are two examples of conduct in that case that every asylum attorney should take note of:
1. Evidence That is Too Consistent (e.g. Identical Affidavits)
In P-S-H- the applicant submitted affidavits from third parties to try to prove the asylum claim was legitimate. But two of the affidavits from people in India had the same wording. That certainly seems odd, right?
To solve this problem, the attorney in Matter of P-S-H- told his client to “obtain another affidavit from one of the individuals because it had ‘to be worded differently.'” If we receive evidence from our clients that looks suspicious, we must do more than just ask the client for less-suspicious evidence. The solution is not to just cover up the conspicuous parts. We must have a frank discussion with or clients about why they have two affidavits with the same wording. There could be an innocent explanation, but it may also be a sign that the asylum claim is not legitimate.
2. Evidence That is Completely Inconsistent
Another statement from a witness in Matter of P-S-H- said the person had stayed for a month in the same hospital as the applicant, but the government determined the hospital only permitted overnight stays.
An asylum attorney will not always know the hours of a hospital in India, but the client here should have known. Friends and family sometimes unilaterally try to bolster a person’s asylum claim by adding details or sending documents that can’t possibly be legitimate. When we receive evidence and documents from overseas in an asylum case, we must check them with our client to make sure these kinds of details haven’t been thrown in by a family member trying to help out.
Asylum Applicants Need to Know the Consequences of Asylum Fraud
One way to stop asylum fraud is to counsel clients early in the process about the extremely serious consequences of fraud.
In asylum law, a claim that is made up in whole or in part or which uses fake evidence to support it is called a “frivolous” asylum claim. That word is a bit of misnomer, however. Usually the word “frivolous” just means “silly” or “not serious.” In asylum law, “frivolous” means “fraudulent.”
It is odd that Congress chose to use such a “silly” term, because its consequences are far from silly. If an applicant is found to have filed a “frivolous” asylum claim, she “can be barred from ever seeking any immigration benefit in any form in the U.S.” Seriously.
I strongly believe that for most asylum applicants, if they knew the consequences were so severe, they probably wouldn’t risk committing asylum fraud. We can actively fight asylum fraud on a case-by-case basis by advising our clients early and often about these serious consequences of asylum fraud.