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)