One of the most difficult issues facing any immigration judge or asylum officer in adjudicating asylum applications is making a determination about the country conditions in a country that judge or officer has not actually visited. A federal or state court judge only hears cases involving events that took place in the locality in which that judge sits. Immigration judges and asylum officers, on the other hand, regularly have to assess the validity of claims about events that occurred in places they have never visited (and depending on the claim, often would not want to) involving cultures with which they are generally unfamiliar.
The United States Department of State (DOS) used to assist immigration judges and asylum officers in making those determinations.
For instance, in the past, DOS prepared what were known as "Profiles of Asylum Claims and Country Conditions" for the countries from which most asylum applicants had immigrated. These profiles would analyze common asylum claims from the countries for which they were prepared, broken down by each of the "five factors" for asylum relief: race, religion, nationality, membership in a particular social group, and political opinion.
Profiles also provided adjudicators with other critical information for assessing claims. For example, the profile for the People's Republic of China from 2007 detailed the treatment that returning immigrants to that country would receive, addressed issues relating to the validity of documentation presented by applicants, and raised issues related to the "national law on population and birth planning", among other issues.
At some point after 2009, however, DOS stopped issuing profiles. Not only that, however, but those documents have largely disappeared from the internet.
In addition, DOS played a significant role in assisting the asylum officers and immigration judges in adjudicating specific asylum applications. That role has been significantly diminished over the years, although it is still reflected to a lesser extent in the regulations. Specifically, 8 C.F.R. § 1208.11 states:
(a) The immigration judge may request, in his or her discretion, specific comments from the Department of State regarding individual cases or types of claims under consideration, or other information the immigration judge deems appropriate.
(b) With respect to any asylum application, the Department of State may provide, at its discretion, to the Immigration Court:
(1) Detailed country conditions information relevant to eligibility for asylum, withholding of removal under section 241(b)(3) of the Act, and withholding of removal under the Convention Against Torture;
(2) An assessment of the accuracy of the applicant's assertions about conditions in the applicant's country of nationality or habitual residence and the applicant's particular situation; if
(3) Information about whether persons who are similarly situated to the applicant are persecuted or tortured in the applicant's country of nationality or habitual residence and the frequency of such persecution or torture; or
(4) Such other information as it deems relevant.
(c) Any comments received pursuant to paragraph (b) of this section shall be made part of the record. Unless the comments are classified under an applicable Executive Order, the applicant shall be provided an opportunity to review and respond to such comments prior to the issuance of any decision to deny the application.
A similar regulation, pertaining to the Asylum Office, can be found at 8 C.F.R. § 208.11. These regulations replaced a prior regulation that mandated the submission of all asylum applications to the State Department for comment. Specifically, 8 C.F.R. § 208.11(a) previously stated: "[INS] shall forward to the Department of State a copy of each completed application it receives. At its option, the Department of State may provide detailed country conditions information relevant to eligibility for asylum or withholding of removal.'' (Emphasis added.)
The response received to those submissions of applications was usually quite cursory. Specifically, such response would generally refer the Asylum Office or the immigration court to the latest version of the profile for the country in question, usually with a sticker from DOS indicating that the profile was its response. On occasion, however, responses would be quite detailed, and would provide specific information directly related to the applicant and the merits of his or her claim. In either case, however, at least it would be some objective information the asylum officer or immigration court could use to frame the applicant's claims.
U.S. Citizenship and Immigration Services (USCIS), the agency in which asylum officers serve, moved first to amend that regulation on April 6, 2009. In the Federal Register on that date, the agency stated:
The Department of Homeland Security (DHS) is amending its regulations to alter the process by which it forwards Form I-589, Application for Asylum and Withholding of Removal, for asylum applications filed affirmatively with U.S. Citizenship and Immigration Services (USCIS) to the Department of State (DOS). The affirmative asylum process allows individuals, who are physically present in the United States, regardless of their manner of arrival and regardless of their current immigration status, to apply for asylum. The current regulation requires USCIS (formerly Immigration and Naturalization Service (INS)) to forward to DOS a copy of each completed asylum application it receives. This rule provides that USCIS will no longer forward all affirmative asylum applications to DOS. Instead, USCIS will send affirmative asylum applications to DOS only when USCIS believes DOS may have country conditions information relevant to the case. (Emphasis added).
Respectfully, when wouldn't DOS "have country conditions information relevant to" an asylum application premised on facts that primarily occurred abroad? Isn't an objective view of facts on the ground abroad the State Department's raison d'être?
The Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) agency with jurisdiction over the immigration courts, began the process to amend this regulation in 2011. In its publication in the Federal Register at that time, EOIR stated:
The Department of Justice is planning to amend its regulations to alter the process by which the Executive Office for Immigration Review (EOIR) forwards asylum applications for consideration by the Department of State (DOS). Currently, EOIR forwards to DOS all asylum applications that are submitted initially in removal proceedings before an immigration judge. The proposed rule would amend the regulations to provide for sending asylum applications to DOS on a discretionary basis. For example, EOIR could forward an application in order to ascertain whether DOS has information relevant to the applicant's eligibility for asylum. This change would increase the efficiency of DOS's review of asylum applications and is consistent with similar changes already made by U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS).
EOIR was fairly honest in its reasons for this amendment:
EOIR receives and adjudicates asylum applications ... where aliens in immigration proceedings submit the asylum application directly to the immigration judge (known as defensive asylum applications). EOIR also receives and adjudicates asylum applications that are referred for consideration in proceedings before an immigration judge after being initially adjudicated through DHS USCIS's affirmative asylum process (known as affirmative asylum applications).
Currently, the Immigration Court is required to send a copy of each defensively filed asylum application to DOS for review. In fiscal years 2008 (15,367), 2009 (14,509), and 2010 (14,210), EOIR received, on average 14,695 defensively filed asylum applications and forwarded a copy of each application to DOS. Similarly, USCIS received 25,680 affirmative asylum applications in fiscal year 2007, 25,497 in fiscal year 2008, and 11,322 from October 1, 2008, until March 31, 2009. USCIS forwarded a copy of each of these affirmative applications to DOS.
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DOS has indicated that it does not have the resources to review many of the asylum applications forwarded to it. DOS has determined that the current process of forwarding every asylum application to DOS is not an efficient method because it does not provide a means for the agencies to identify particular cases for which DOS review might be expected to yield the most value. (Emphasis added.)
Again, respectfully, DOS's difficulty in requesting resources from Congress and allocating those resources appropriately is DOS's problem, not DOJ's or DHS's. Providing an objective, authoritative, and informed view of the validity of claims of mistreatment made by an alien who may or may not have entered the United States legally and who is seeking a benefit that would allow the alien (and his or her family members) to remain in the United States on a permanent basis would appear to be a rather significant responsibility for a department that exists to be the eyes, ears, and voice of the United States government abroad.
Under the current regulatory scheme for requesting DOS comments, asylum officers and immigration judges must make copies of the asylum applications for which it seeks comments, as well as any supporting documentation and information, and forward those documents to DOS for comment. I am not familiar with how this process works in the Asylum Office, but personally as an immigration judge, I never received an asylum application that had been referred by that office that indicated such a request had been made.
I can, however, comment on how this process works at EOIR. The immigration judge, or the judge's clerk, must copy those documents and send them, with a memo explaining the reasons why DOS comments are requested, to the EOIR headquarters component in Falls Church, Va., through the judge's court administrator. A copy of those documents must also be served on the parties, notwithstanding the fact that respondent's counsel filed the application with the court to begin with.
If you are familiar with how the federal government works, you will know that any procedure that requires special effort on the part of a government employee is not likely to be utilized often. I considered myself to be a fairly diligent immigration judge, and I myself utilized this process in approximately four out of the hundreds of asylum applications that I received. I cannot speak for my former colleagues, but this procedure was not referred to at my immigration judge training, and I would question whether any immigration judge who was appointed after this regulatory amendment is even aware that requesting such comments from DOS is an option.
I will admit that even before the regulations were amended, it was rare for DOS to offer specific comments about an asylum application. The prior procedure, however, at least put DOS on notice that a specific foreign national was present in the United States and seeking an immigration benefit. Such notice was especially useful in the case of an individual known to DOS to be a terrorist, or more often a persecutor or criminal. An individual who is locally notorious in, for example, Haiti or Pakistan might not (and likely would not) be particularly identifiable in the United States. And, not surprisingly, most asylum applicants do not detail their notoriety in their home countries in their asylum applications. Rather, they generally allude to difficulties that they have had in their local communities and/or with their home governments, and leave out the reasons why particular attention would have been paid to them back home.
I will note that there have been complaints made about the objectivity of the information contained in the profiles. In particular, the Political Asylum Research & Documentation Service (PARDS), which refers to itself as "a private, New Jersey based (since 1993), internationally known and respected, research agency" argues on its website that:
Prepared at the request of what was then the [INS], the Department of State's Bureau of Democracy, Human Rights and Labor fabricated a series of country-specific reports collectively known as the Profiles of Asylum Claims and Country Conditions Reports. The series is specifically designed to undermine the plausibility of otherwise legitimate asylum, withholding of removal, and cancellation of removal based claims filed by otherwise legitimate refugees emanating from any one of fifty-seven (57) specific countries. The criteria employed to identify the targeted countries included the unattractive nature of their race (non-Caucasian), unattractive nature of their religion (non-West European brand of Christianity), unattractive nature of their sociology (extent of their ethnocentrism, or degree to which they do not readily assimilate into the American melting pot), unattractive nature of their culture (non-Christian, Western European), unattractive nature of their education (includes linguistics, non-English speakers, degree to which they do not learn and communicate in English), and/or the number of those seeking to permanently resettle in the U.S. through asylum, withholding of removal, or cancellation of removal.
The common denominators presenting in the series, essentially an encyclopedic compendium of historical revisionism, includes a hyper amplification of the economic disparity between the U.S. and the targeted country. State's anonymous, uncredentialed authors argue, among other things, that those petitioning for permanent resettlement here in the U.S. do so for economic, to the exclusion of any other legitimate reason, Moreover, they advance what has become known as the "Century 21 Real Estate Agent Option," wherein State argues that anyone, irrespective of the source of their security concerns could have evaded those whom they perceived to be a threat by simply relocating within the borders of their own country with the help of a local realtor (around the corner, next hamlet or village, found some remote abandoned cave, and/or very tall tree and lived out the balance of their lives in peace and tranquility).
With due respect to PARDS' conclusions, both as a trial attorney and as an immigration judge, I found the profiles to be a useful tool in evaluating individual asylum claims. Moreover, I found those profiles to be at least as objective as the Country Reports on Human Rights Practices, another DOS publication that is regularly submitted with applications for asylum, and one that is considered in evaluating such claims in immigration courts around the United States on a daily basis.
USCIS and the immigration courts are facing an unprecedented number of "credible-fear" and asylum applications. In May 2013, CNN reported that there were "307 U.S. embassies, consulates and diplomatic missions around the world." Plainly, DOS today is an untapped resource that could help our domestic asylum adjudicators to sort through the validity of the claims made in those applications. They should be expected to do so.
The regulation should be amended to require the submission of credible fear claims and asylum applications to DOS for comment. In addition, DOS should be required to again issue profiles for the countries from which an asylum claim is made in the prior fiscal year. Without an objective and informed basis of facts against which to assess an asylum claim, evaluating such a claim is often little more than guesswork and supposition.