In May, 2011, the world’s attention was focused on the story of Nafissatou Diallo, a hotel housekeeper in New York, who claimed she was raped by Dominique Strauss-Kahn, then the head of the International Monetary Fund and thought to be a likely future president of France. How did Ms. Diallo, who was born in West Africa, come to be working in New York?
She admitted that while in the U.S. illegally, she concocted a totally false story about being raped in her home country of Guinea, in order to obtain legal asylum status in the U.S. Ms. Diallo’s defenders thought that admission was no big deal, and that telling a good story is how to obtain asylum in the U.S. Prosecutors concluded, however, that prosecution of Mr. Strauss-Kahn could not proceed in light of that admission.
While the U.S. has numerical limits on the numbers of legal immigrants it admits every year, it has no numerical limit on the number of refugees it accepts every year on the basis of their claim for asylum because they face persecution in their home country on account of race, religion, nationality, social group, or political opinion. Illegal immigrants, once they enter the U.S. either illegally or by overstaying a temporary visa, have a strong incentive to lie in making an asylum claim in order to obtain permanent legal status to work legally and qualify for becoming a U.S. citizen.
Asylum claims are currently ruled upon either by officers of the Department of Homeland Security or by immigration judges of the Department of Justice in the course of deportation proceedings. If the story is found to be credible and convincing, and to meet the legal standard of a well-founded fear of persecution on account of race, religion, nationality, social group, or political opinion, and if the story-teller has not been convicted of a crime, the request for legal permanent residence in the U.S. on grounds of asylum is usually granted.
Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.
Ms. Diallo is not the only successful asylum claimant whose lies are subsequently exposed. Back in 1999 another immigrant, also named Diallo, died in New York City as the result of police gunfire, and was discovered to have made numerous false claims to gain asylum in the U.S. Amadou Diallo had claimed to be an orphan whose parents were murdered, though his parents showed up at his funeral, and he claimed to be Mauritanian, though he was actually from Mali.
While many are believed to obtain legal asylum status by lying, most go on to eventually become U.S. citizens, and the lies they tell to get status are never uncovered.
The August 1, 2011, issue of the New Yorker contains an article, beginning on page 32, called “The Asylum Seeker” by Suketu Mehta, which tells in detail how illegal immigrants educate themselves on how to construct stories which make them sound like victims of persecution. The article features an asylum claimant from Africa who is making a completely bogus claim of having been raped. To strengthen her case, she attends group therapy sessions for rape victims at a public hospital and receives taxpayer-funded medications for her supposed depression, which she throws away.
Other stories of brazen lies told by illegal immigrants in pursuit of asylum include the case of Adelaide Abankwah, championed by feminist and human rights figures. The U.S. Court of Appeals for the Second Circuit granted asylum to Abankwah in 1999 over the objections of the Immigration and Naturalization Service, which later proved fraud in her application including a stolen name and false passport. She was tried and convicted of perjury and passport fraud.
See also the case of the Nigerian imposter calling himself Edwin Mutaru Bulus whose bogus asylum claim was exposed only after a sympathetic story was published in the New York Times. Xian Hua Chen, an illegal immigrant from China was convicted of perjury on his asylum application.
Such convictions and exposures of false asylum claims are difficult and expensive to attain. And the difficulties are compounded when the number of asylum applications is increasing. The total number of affirmative asylum applications has more than doubled in the last five years, exceeding 80,000 in FY2013. Over the same five years, so-called “credible fear” asylum applications made at the border have increased sevenfold from less than 5,000 to more than 36,000 in FY2013. Official statistics show an approval rate of 92% for credible fear claims in FY 2013.
The increasing numbers of asylum applicants is a not just a problem for the U.S. Anyone looking at recent developments in Western Europe, Australia, Canada, even Israel, can see that for many reasons including the worldwide recession, continuing turmoil and conflict, and rising expectations, the number of asylum seekers who need to be processed has risen and will continue to increase throughout the world. Policy planning should reflect this reality.
What should be done?
First, all proposed grants of asylum should be routed through the U.S. Department of State for comment and an opportunity to object.
There’s no simple solution to the false asylum claims, but I think the Department of State foreign service officers as a group are better able to determine actual conditions in various foreign countries, and therefore more likely to detect false stories and recognize the truth, than asylum officers or immigration judges based exclusively in the U.S.
The role of the Department of State in the adjudication of asylum claims was reduced and then eliminated because during the Reagan administration, that department was thought to favor asylum claims from countries whose governments the administration opposed, like Nicaragua, and to reject asylum claims from countries whose governments the administration supported, like El Salvador and Guatemala.
But the reality is there are always going to be some political pressures on these decisions, and there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice. Political pressures on asylum adjudications can be mitigated by involvement of the State Department. Adjudicators with high rejection rates can defend themselves by presenting State Department comments.
I think we can only improve asylum adjudication by restoring a role for the diplomats we trust to represent us in foreign countries, who have first-hand experience in those countries, and who are required to study their languages and cultures. They can call upon specialized resources in every country to evaluate questionable asylum claims.
Second, Congress should reconsider the role of “credible fear” in the expedited removal provision of the immigration statute. The statute already provides that “in the case of an alien who is an applicant for admission, if the examining officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a (removal) proceeding under section 240.” That is the standard that should be applied to all arriving aliens.
Finally, just as the credible fear standard may originally have had some utility, but has lost value as alien smugglers game the system and spread the stories that “work” in demonstrating credible fear, so the asylum statute itself, INA Section 208, while a useful addition to our immigration law when added in 1980, may have lost some value as the stories have been spread that “work” in convincing an adjudicator to grant asylum.
How did the U.S. meet its obligations under the Convention and Protocol on the Status of Refugees before 1980? The answer is through withholding of deportation, now withholding of removal, Section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. Section 1231(b)(3). That statute prevents the removal of an alien to any country if, “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”
I would like to see Congress consider enhancing Section 241(b)(3) by adding to it some of the benefits of asylum, like adjustment of status to legal permanent resident, and following to join of spouses and minor children, under certain specified conditions, with the goal of replacing the asylum statute with a single enhanced withholding of removal statute for the protection of refugees. That statute has and will have a higher burden of proof than the asylum statute, and should therefore be less susceptible to fraud.
(This is an excerpt from testimony given on February 11, 2014, to the U.S. House of Representatives Judiciary Committee Subcommittee on Immigration and Border Security.)