Friday, July 29, 2011

Defining Persecution to Minimize Fraud

In the wake of the debacle surrounding the admittedly falsified asylum claim of Nafissatou Diallo, Dominique Strauss-Kahn's accuser, refugee advocates have not had much to celebrate. Subsequent articles in the New York Times and the New Yorker on fraud in the asylum process are cause for serious concern, especially in the run-up to an election year. Both reports focus on the practice of "bolstering" asylum claims, in some cases fabricating stories from whole cloth but in others embellishing accounts to meet immigration adjudicators' expectations of "real" persecution.
Though my experience leads me to believe that the levels of fraud in the asylum process are significantly lower than these stories insinuate, the problem is certainly real. There are numerous possible solutions, with my vote going to the provision of free legal services for asylum seekers. As my co-author Phil Schrag elaborates here, high quality legal representation will not only help to ensure that the stories of genuine asylum seekers are not bolstered with false and unnecessary details but will also weed out fraudulent claims. But of course, free representation comes with a price tag to which Congress is unlikely to agree, particularly in the current climate.
A less costly route is in the hands of asylum adjudicators -- define persecution in a way that reflects the real experiences of genuine refugees, rather than setting the bar for past harms so high that asylum applicants feel the need to bolster their stories to ensure their safety. Judge Posner has done just that in his most recent asylum decision, Stanojkova v. Holder.
Ivanka Stanojkova and her husband, Gjorgji Naumov, Macedonian Slavs, were attacked in their home by masked paramilitaries because Naumov refused, for political reasons, to be drafted into the Macedonian army. The three assailants rendered Naumov's parents, with whom the couple lived, unconscious with a chemical spray. One of the attackers pointed a gun at Naumov's head and told him that they were attacking the family because he and his wife were "betrayers of Macedonia." Another ripped open Stanojkova's pajama top and touched and grabbed her all over her body. When her husband tried to protect her, the attackers beat him on the head and back with their gun. Stanojkova had just learned that she was pregnant and feared losing her baby.
In his usual acerbic style, Posner takes to task the immigration judge and member of the Board of Immigration Appeals who denied Stanojkova and Naumov's claim. He finds that what their opinions "come down to is that one can imagine worse mistreatment than the Naumovs underwent. That is not a reasoned basis for rejecting a claim of persecution."
Posner also attempts to create a new definition of persecution to replace the muddled standard that has long governed in asylum law:

Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.

Though this definition leaves some open questions, it's a good start on reforming a convoluted definition of persecution. Perhaps more importantly, the facts of the case signal to asylum applicants that one need not be beaten to the point of hospitalization or brutally raped to have suffered persecution; the real facts that led to flight may alone be enough to obtain protection in the United States. That's a welcome message and one, if implemented by all asylum adjudicators, might play a role in diminishing fraud in the process.

(hat tip to Geoff Heeren)


doni boyd Simonson said...

“… is a common form of persecution even though the only harm it causes is psychological…”

What!? “...even though the ‘only’ harm it causes is…” Harm is harm; hurt is hurt! And most people know what kind of physical pain can be caused from psychological pain. Who writes this stuff?

Jaya Ramji-Nogales said...

Thanks for your comment. As the post notes, the author of that quote is Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Though you raise a good point that psychological and physical harm are not only equivalent but interrelated, in this case Judge Posner is attempting to respond to and dismantle a problematic paradigm in asylum adjudication that prioritizes physical over psychological harm. In other words, his characterization of the issue may be flawed, but it should also be taken in context.

doni boyd Simonson said...

Note: upon further reading of the comments made by Judge Richard Posner, I think that I now see what he was trying to convey. As I understand it, he was trying to suggest that the worthiness or the attention given to a claim should not be based upon the severity of a claim – whether the claim is physically or psychologically based.
I guess that my comments sounded a bit critical. However, my intentions were not to undermine any attempts to try to alleviate any 'problematic paradigms' in the case of the abuses of asylum seekers. My point was to suggest that any abuse, albeit physical or psychological, should carry the same amount of legal concerns or interests - therefore, any such abuse by any government, and/or person(s) should be held accountable with the strictest of liability – whether the abuse was physical or psychological – and Regardless of the validity and/or severity of any claim. About any “severity’ of a claim”: it could be that some claims may be embellished ("bolstered") due to a claimer’s fear that his or her claim may not be taken seriously if his or her ‘story’ doesn’t sound horrifically or politically noteworthy enough. As well, as pointed out, many claims may have started out honestly enough, but perhaps due to an overzealous immigration adjudicator thinking it more affective to add a few spiced up adjectives an otherwise ‘noteworthy’ claim may have ended up as being yet another “falsified asylum claim.” My bottom point of all this is that two wrongs don’t make a right. Treatment of a person should not be based on merit.
Added note: I am not a native speaker of English. However, I have an invested interest in following such commentaries about this vey subject. However, my research for information about this very topic has lead me to a lot of confusion in that the argot usually used is beyond my level of understanding. I have also been actively involved in trying to help others wade through the format of “Cows or Heifers” or Syntactic Ambiguity of the saw of legalize.
Suggestion: maybe if you all could include a watered down version to all your comments the rest of us might be able to follow a little better, and we might be able to help you reduce the number of ‘embellished’ or false claims.

And thank you for responding. :)