"With a Mind Like a Razor, Everything Looks Like it Needs to Be Cut Down to Size"
By Dara Lind
I haven’t watched last week’s Senate Judiciary Committee hearing on the Refugee Protection Act of 2010 yet (SPOILER ALERT: I hear Jeff Sessions worried out loud that Osama bin Laden’s family would be eligible for asylum if the bill passed) but you can read a quick summary here, and Jason Dzubow at The Asylumist is providing some great in-depth coverage. Unsurprisingly, the bill doesn’t address my pet concern with asylum law (freeing the concept of “persecution” from its state-centric 20th-century roots) but what caught my eye instead were the provisions that give an asylum seeker a chance to explain any inconsistencies in his or her testimony, and provide corroborating evidence if needed, before the judge rules on the case.
From what I’ve observed, judges and lawyers focus on physical evidence of persecution when possible. It can get creepy to watch, but it makes logical sense: scars are irrefutable evidence that something has happened. Persecution that leaves no scars can’t be proven nearly as easily, and often an asylum case has to rely on whether the judge believes the asylum-seeker or not. So the applicant needs to keep her story straight through an application, an initial interview, verbal testimony, and cross-examination by both prosecutor and judge.
Bear in mind that an asylum hearing is a pretty emotionally fraught environment to begin with: describing traumatic experiences to complete strangers is a requirement, with bonus credibility points for doing it in detail and with feeling. Knowing that any inconsistency in testimony could turn a judge skeptical can’t help. Furthermore, the prosecutor also knows he can damage the applicant’s case by damaging her credibility, so he’ll try to trip her up. I’ve seen prosecutors quiz 13-year-old boys on the chronology of events that happened when they were 7, or ask a man to specify the dates he spent in a refugee camp a decade earlier. The focus moves from the substance of their claims to the consistency of the details.
Obviously, there’s something to be said for healthy prosecutorial skepticism, and some of the things prosecutors look for to determine if someone’s been “coached” seem innocuous. But the impression I got in watching these proceedings was that prosecutors weren’t just trained to be open-minded to the possibility that someone was lying — they were constantly being trained and retrained to look out for criminal, coordinated, deliberate fraud. Prosecutors in immigration courts are employed by Immigration and Customs Enforcement, which, I gathered, conducts frequent trainings for prosecutors where they learn about fraud rings the agency has just busted up or is currently investigating, and how they might be able to spot a conspirator if he walks into their courtroom. They’re also told to watch out for people whose “fear of persecution” is actually fear of retaliation for atrocities they committed – more than one prosecutor remarked to me that many of the asylum applicants they’d seen had been “the bad guys” themselves.
It seems to me that this sort of training is less important for its substance than for creating a habit of mind: the prosecutor gets used to the idea of seeing asylum-seekers as potential cons. It’s not impossible to break out of that mindset in the face of compelling and sincere testimony, but it makes it much less likely, on the whole, that the prosecutor will be gentle in cross-examining someone about the persecution he’s described. And it makes it easier for her to keep a straight face while arguing that someone held captive in a terrorist training camp should be barred from asylum for giving “material support” to the terrorists (an argument that would not be allowed under the Refugee Protection Act). Skepticism keeps prosecutors from noticing just how vulnerable the applicant in front of them is; it seems inevitable that they’d end up abusing their power.
Giving an asylum seeker the opportunity to set the record straight might improve his odds of making his case on the merits. More importantly, it might remind prosecutors and judges that there’s more to an asylum claim than aggressive fact-checking, which might make a process that’s designed to protect victims of human-rights abuses a little more humane.
Permadisclaimer: my opinions on immigration policy are entirely my own and are in no way associated with my employer or any other organization.