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Refugee/Ayslum Law Training Manual

THE ASYLUM PROCESS
 
  Preparing For The Hearing  
 


Asylum hearings are generally quite simple and straightforward compared to civil trials. The typical MIRC asylum hearing consists of the testimony of the client, additional testimony from an expert witness, and brief opening and closing statements. Additional witnesses are valuable if they can be obtained, but often there are simply none available. Despite the fact that the hearing itself is generally straightforward, asylum hearings do, in fact, require a great deal of preparation.

We strongly recommend that you begin preparation by reading background material on the recent history of their client's country. You will save yourself a lot of time and minimize the chances of confusion or error by having a basic understanding of the political and military conflicts in their client's countries before beginning hearing preparation.

Interviewing The Client

Many volunteer attorneys underestimate how much time with the client is necessary to adequately prepare. Interviewing the client, either in the process of preparing the I-589 and affidavit or in preparation for hearing testimony, is the most difficult and critical part of handling an asylum case.

In interviewing asylum clients, you may encounter problems you are not accustomed to in dealing with other sorts of cases. For example, clients in asylum cases rarely speak English and are often uneducated or poorly educated. Additionally, many clients suffer from post-traumatic stress disorder or other psychological and emotional problems that make it difficult for them to tell their story fully to anyone.

You should also be aware that a different style of interviewing than one may be accustomed to may be necessary when interviewing clients in asylum cases. Lawyers in this country often have a style of interviewing that can be threatening to MIRC clients. An intense, rapid-fire approach, bearing down hard on minor inconsistencies, however, may be very frightening to clients seeking asylum. As a result, a more gentle approach may be required.

1. ESTABLISHING TRUST WITH YOUR CLIENT

Establishing trust with your client is essential in asylum cases. The great majority of MIRC clients come from countries whose legal systems are corrupt and inept at best. As a result, they generally unfamiliar with and suspicious of the legal proceedings that they have found themselves in. This suspicion makes it difficult for asylum seekers to trust their attorneys, let alone the Judge rendering a decision in their case. Part of your job is attempting to overcome this built-in distrust.

MIRC recommends that at least in initial sessions, you begin by helping the client relax and trust you. You should be as friendly as possible, explain things thoroughly, and urge the client to ask questions. It may be helpful in establishing trust with the client for you to let the client know something about yourself. Sometimes the best way to begin a relationship with a MIRC client is to offer coffee or refreshments and simply sit and chat for a few minutes.

2. OVERCOMING CULTURAL BARRIERS

Cultural differences may also create challenges in the process of case preparation. For example, some MIRC clients are rural peasants and most are poor and have limited education. They frequently come from cultural settings in which, for example, calendars or clocks have little value. Clients frequently may not be able to remember what month an event happened--or even what year. Since such gaps can create serious credibility problems, you may have to be creative about establishing a foundation for specific testimony. For example, occurrences may need to be tied to whether or not it was the rainy season or other events that the client can relate the occurrence to.

Another cultural barrier is client's natural reticence about answering questions fully and honestly. Often, a client's only experiences in dealing with well-dressed interrogators sitting behind desks in business offices have been unpleasant and threatening. They may withhold information at first or may modify their story, or concoct one completely, based on their assumptions about what you want or expect to hear. Specifically, many MIRC clients from Central America start out by telling staff and volunteers that they fear guerrilla persecution. While in many cases this is in fact true, in other cases it eventually becomes clear that the client invented the claim because he/she thought it was the one most palatable to North American ears. With patient interviewing and a careful building of trust, a quite different and much more credible story may emerge.

3. DEALING WITH PSYCHOLOGICAL BARRIERS

Finally, a more difficult and surprisingly prevalent problem may be the presence of psychological barriers, which make case preparation and presentation difficult. A substantial percentage of MIRC clients have been found to be suffering from Post Traumatic Stress Disorder (PTSD) or other psychiatric disturbances, as a result of what they have witnessed or suffered in their home country.

From the lawyer's point of view, these problems may manifest themselves in a variety of ways. For example:

--The client may simply block out an entire traumatic event, or significant parts of one. The client may have witnessed or endured something that would clearly make him/her eligible for asylum but may be unable to testify about it in any credible fashion, or even remember it at all;

--The client may be able to remember traumatic events and describe them to the attorney, but may find the experience so distasteful that he/she simply does not show up at the next appointment or resists efforts to go over the story again;

--The client may display inappropriate behavior or affect while talking about things that happened to him/her. The most obvious and best-known example is the tendency of many people to relate horrifying events in a flat, seemingly emotionless voice; or

--The client may be suffering from other problems, such as depression or substance abuse, related to or stemming from PTSD or other psychological condition.

MIRC is associated with the Marjorie Kovler Center for Treatment of Survivors of Torture. Many MIRC clients are Kovler Center clients as well. Although the Kovler Center's files are confidential, you are encouraged to work with Kovler Center volunteers and staff, exchanging information and suggestions, where confidentiality permits.

MIRC strongly recommends that if you observe behavior in your clients that suggests the presence of emotional disturbances, MIRC staff should be alerted so that the client can be referred to the Kovler Center for evaluation and treatment if necessary. The Kovler Center is at 4750 North Sheridan Road, Chicago, Illinois 60640.

4. INTERVIEWING THROUGH AN INTERPRETER

Interviewing a client through an interpreter is slow and time-consuming. Some standard legal expressions do not translate well into other language and some forms of expressions or questions may be misunderstood. Avoid using legal terms where possible. MIRC interpreters are volunteers too and may have little experience dealing with lawyers. In additions, interpreters are likely to come from different countries then MIRC clients and differences in dialect or use of certain words can be very critical.

Obtaining Witnesses

If possible, you should attempt to obtain additional witnesses besides the respondent.

1. MATERIAL WITNESSES

Material witnesses, such as friends, family members, or others who can corroborate some or all of the respondent's story, are very important. However, it is unusual to have such witnesses in asylum cases, either because the client knows no one in the area who can be a useful witness or those who could testify are fearful of doing so.

2. EXPERT WITNESSES

Expert witnesses, on the other hand, have been critical elements in many successful MIRC cases in the past and volunteers should make a strong effort to obtain such witnesses. Expert witnesses, however, should only be called if their testimony adds something new to the case and is not merely a summary of the documentary evidence and affidavits submitted previously.

The content of a witness' testimony should be carefully scrutinized. Testimony should focus on the specific elements of the respondent's claim. It is not enough that a witness offer general testimony. The witness must be able to specifically corroborate elements of the respondent's own testimony.

It has been our experience that such witnesses are most useful when they are truly experts, such as academics or professionals with substantial scholarly credentials, and when they are not blatantly partisan. Sometimes, witnesses offered are people who have traveled extensively in the respondent's country or are active in political or advocacy organizations with a pronounced point of view about that particular country. Such a witnesses' credentials as "experts" are often problematic. In the event that a witness' "expertise" is called into question at the hearing, you should be prepared to argue on behalf of his/her witness' credentials or, if unsuccessful, to go forward effectively if the witness is not accepted. Even if the INS attorney does not object to a particular witness, the Immigration Judge may refuse to allow such testimony on his own motion. Additionally, sometimes, even if allowed to testify, a witness' political bias is so strong and so obvious that their testimony carries little weight with the Judge.

If you client is suffering from post traumatic stress disorder or other psychological problems that may effect the credibility of his/her testimony, you should consider having a psychologist testify at the hearing, or at a minimum, submit an affidavit from the psychologist describing the client's symptoms in detail. Similarly, it may be helpful to have a doctor or other qualified expert testify if your client has been tortured or beaten. You may wish to consider Kovler center for assistance in obtaining an expert if your client has been tortured.

You are strongly urged to consult with MIRC staff about whether an expert witness should be called and how to locate one.

Compiling Corroborative Evidence

Asylum cases are often made more challenging by the paucity of evidence available to support the client's claim. The refugee client generally has nothing in the way of documents or physical evidence to bolster his/her case, and even if there are friends or family members present who might be able to offer corroborating testimony, they are generally unwilling to do so because of their own fears or because they are themselves undocumented.

The client is largely responsible for persuading the Judge that he/she is credible and truthful. However, since corroborative evidence is increasingly being demanded by courts, it should be presented in order to provide general objective support for your client's testimony and bolster his/her asylum claim. The following are general types of corroborative evidence:

1. applicant's personal documents, such as evidence of particular race, religion, nationality, political party, ethnic or social group, or evidence that reveals facts about applicant, such as citizenship, education and status in society;

2. official records, letters and affidavits which support applicant's story, such as arrest warrant, conviction document or other police records of arrest, documents showing detention or charges, affidavits from people with knowledge of persecution, medical records of injuries; and

3. documentation from newspapers or official reports of human rights organizations that speak to your client's particular situation.

Given recent BIA case law, corroborative evidence is more critical than ever before. See Matter of A-S-, Int. Dec. 3336 (BIA 1998); Matter of M-D-, Int. Dec. 3339 (BIA 1998); Matter of O-D-, Int. Dec. 3334 (BIA 1998); Matter of Y-B-, Int. Dec. 3337 (BIA 1998); and Matter of A-E-M-, Int. Dec. 3338 (BIA 1998).

Preparing Your Pre-Trial Memorandum

Under federal regulations, 8 C.F.R. Section 3.21 (b) (1997), and local operating procedure 2, each party is directed to file a pre-trial memorandum no later than 10 days prior to the hearing. The pre-trial memorandum should include a statement of the facts, the applicable law, an analysis of the facts based on the law and a conclusion, as well as copies of any affidavits and supporting documents. An index of supporting documents is critical. Such an index should set forth your case, highlighting the focus of the material which supports your argument. You may consider organizing your index according to subheadings that support the arguments in your case and highlighting key evidence in your index in yellow, as this may be all the judge reads. In addition, the court may order any party to submit the following:

1. A list of proposed witnesses and what they will establish;

2. A list, together with copies, of all exhibits that may be offered;

3. A statement that the parties have communicated in good faith to stipulate to the fullest extent possible;

4. A statement of unresolved issues in the proceeding;

5. The estimated time required to present the case; and

6. An additional copy of all exhibits.

(Please provide MIRC with a copy of your pre-trial memorandum.)

Contacting The INS Trial Attorney Prior To Your Case

MIRC recommends that if you have a particularly strong or compelling case, you should attempt to contact the INS trial attorney at 312-357-7317 a day or two in advance of the hearing, to explore any pre-hearing agreements that might be reached. This conversation will be helpful in determining what the trial attorney sees as the weakness in your case.

Recently, some MIRC volunteers have been successful in obtaining stipulations from INS attorneys that clients are eligible for asylum or other relief (although the Judges believe firmly they are not bound by agreement between the INS and the respondent, and will often not accept such stipulations). Such situations are unlikely in most cases, because the INS attorney will be principally concerned with the issue of credibility and probably won't stipulate to anything until they have observed the client's testimony and conducted some cross-examination. However, in such cases, it may be useful to ask the INS attorney at the close of the hearing if he/she will stipulate to eligibility and not oppose asylum or, failing that, if he/she will waive appeal if the respondent wins, thus terminating the case immediately.

Preparing Your Client To Testify

It is important to explain the hearing process in detail to your client, so that they understand what will occur and what is expected of them at the hearing, as well as the potential outcomes. You may wish to encourage your clients to dress nicely for the hearing.

Additionally, you should be aware that it is very common for witnesses to vary their testimony on the stand from what they have told you in your interviews. They often fail to testify about certain things, sometimes key elements, and/or may suddenly state new facts that you have never heard before. In addition, all witnesses, particularly respondents, are generally very nervous and thus likely to forget certain things. For example, clients often forget dates or even years in which events happened. Though this is quite normal human behavior, for some reason both INS attorneys and Immigration Judges tend to think that if a client cannot remember in which year an important event occurred, then the account is not credible. As a result, you must try to convince the client in advance that is very important to remember such details and testify to them to the best of his/her recollection.

NOTE: This is meant only as a brief guide to asylum practice and does not purport to discuss all aspects of immigration practice related to asylum proceedings. Other sources should be consulted when there are any questions regarding current law and procedure. Included in this manual are references to comprehensive legal resources. This information was last updated in June of 1999. As there may have been changes in the law or policy since this time, please contact the Midwest Immigrant and Human Rights Center if you need clarification or have any questions. Phone: 312-629-1960. E-mail: mirc@tia-mirc.org.

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