Further Reflections on Asylum in the United States

By Dan Cadman on May 5, 2014

In March of this year, the Center for Immigration Studies published a paper I wrote outlining problems plaguing the asylum program as administered in the United States — and, candidly, probably elsewhere as well, although the facts and figures reflecting radical statistical shifts in the American program leap out and demand explanation, reflecting as they do a strong probability of massive amounts of fraud.

At the end of April, the Center sponsored a panel discussion on asylum in which I participated, and I have been reflecting on a number of things raised there since. (The video and transcript of the discussion are here.)

One of the things raised was this: A member of the panel noted that if there is substantial fraud in the asylum program, then that is no different than the fraud level across the range of immigration benefits granted by our country. In my view, that is an appalling, but true, statement of the facts. I accept it implicitly. What I do not accept is that this should therefore beget complacency about fraud, whether in asylum or other aspects of our country's immigration system.

If our system is "broken" and in need of reform, a prime reason may be the fact that it is riddled with fraud and casual indifference by both those seeking to stay and those administering the system. And what, if anything, do we see in most of the proposals for reform of that system? More forgiveness of fraud and law-breaking, both past and prospective. (For instance, the Gang of Eight bill passed by the Senate in June 2013 would forgive aliens who illegally reenter the United States after removal in order to permit them to seek amnesty.) Exactly how that will "fix" our system and instill respect for the nation's immigration laws by prospective illegal entrants or visa overstayers in the future, I have no idea.

Note also that when I speak of "fraud" I do not necessarily mean the use of false documents, although I don't discount that completely either. International law makes clear that the use of false documents to flee one's persecutors, when no other options are available, is morally acceptable and legally forgivable. As our panelist mentioned, think of the case of Raoul Wallenberg, who saved thousands of Jews from Nazi extermination by provision of Swedish travel documents. Instead, in the case of asylum, I mean "fraud" in the more fundamental sense: a lie about one's identity, one's nationality, and the reasons one claims to fear persecution.

While dire situations may require that one deceive one's pursuers, however, it is unacceptable to perpetuate the fraud toward those you ask to provide you with save haven. One has an affirmative obligation to provide one's true identity and circumstances to those one asks to provide asylum. Incredibly though (or, perhaps not, for those of a cynical disposition), aliens seeking asylum sometimes even lie about where they were born to make their claim credible. For example, Amadou Diallo, the alien beaten and physically sexually abused during arrest by New York police in the late 1990s, allegedly obtained asylee status by use of such fraud. The alleged rape victim of former International Monetary Fund head Dominique Strauss-Kahn, coincidentally named Nafissatou Diallo, also apparently misrepresented facts on her asylum application. This resulted in prosecutors deciding to drop criminal charges against Mr. Strauss-Kahn because of her credibility gap. Neither fraud came out until after their respective ordeals in the United States.

Another comment during the discussion that garnered my attention, and about which I have been thinking since, is the observation that by its nature, asylum work is difficult because the officers conducting the interviews are mindful that if they make the wrong decision, it could result in death to the alien whose claim is denied. This, too, is undeniably true. Being ever cognizant of that risk is one of the reasons that there is now a separate corps of officers within U.S Citizenship and Immigration Services (USCIS) whose sole work is to adjudicate asylum and refugee claims.

There was a time in the history of one of Homeland Security's precursor agencies, the Immigration and Naturalization Service, that asylum examiners were not so specialized, and had as often as not come out of the ranks of former inspectors or Border Patrol agents. It was felt that they lacked the requisite empathy or legal training to adequately address extraordinary forms of requests for protection, for safe haven, and thus the asylum corps was born. Many, perhaps most, of the asylum officers now serving are attorneys, and additionally emanate from backgrounds with refugee and associated nongovernmental organizations — not from other branches of immigration work.

The problem is that, as the past decade-and-a-half of our history has put into sharp relief, it is also undeniably true that making the wrong decision to grant a claim puts the men, women, and children on the streets of our communities at risk. This was brought home forcefully again as the investigative findings started to pour in about the backgrounds of the Boston Marathon bombers and their parents, all of whom obtained refugee status as the result of claims of persecution that do not appear to have had any basis whatever in reality.

But faced with the reality of a person immediately on the other side of the interviewing table, vs. the abstract but seemingly minimal risk of future mayhem, it is probably easier for the adjudicating officer, who is after all both by training and avocation predisposed toward a sympathetic view, to grant a claim than face qualms of conscience about what might happen to that individual if denied. The implication of this is troubling, but how else to explain the shocking spike in approvals, and of course, therefore, in claims filed, such things being by nature somewhat circular (more approvals, more claims; more claims, more approvals)?

Something else that arose during the panel discussion was the observation that adjudicating asylum generally falls into the realm of subjective decision making. This too strikes me as true. An alien submits an application including details about his identity and background, and lays out his claim to a fear of being persecuted. The officer examines the application, and listens carefully to the alien during the personal interview. An immigration judge does likewise in the context of a claim made in the course of a removal proceeding. Based on the story, the officer or judge looks into whatever factual data may be available, often in the form of country condition reports, and then subjectively applies a judgment of the applicant's credibility, because with the exception of well-known human rights champions or opposition leaders, very few claims are verifiable on the individual level.

The difficulty with this method of adjudicating, though, is that country condition reports are available to anyone with an Internet connection. It becomes a simple matter for fraudsters, shady middlemen, or unscrupulous attorneys and notaries to patch together a beleivable claim to asylum for virtually anywhere in the world. What's more, even though in a certain sense asylum officers are specialists — they adjudicate no benefits except those relating to non-refoulement — in another very real sense, they are generalists. One case involves a man from El Salvador; the next case involves a woman from the Democratic Republic of Congo; a third case involves someone from Tajikistan. There is a tendency to over-rely on such things as country conditions in the absence of individual-specific data, and combine that general information with an assessment of the alien's veracity. However, as mentioned, officers who are part of the modern asylum corps were picked specifically because of their empathy and philosophical alignment with the need to provide safe haven for millions of at-risk persons worldwide. This poses a conundrum, because the key point of the exercise is to determine truth, versus deception — not to superimpose one's philosophical underpinnings on each interview conducted.

In an interesting series of experiments and studies over a course of years, collectively known as "the Wizard Project", two professors examined the capacity of human beings to detect deception in others on a recurring basis. It turns out that very few of us have that capability. According to the Humintell website, "research showed that for the average person, being able to detect deception is not an easy task. Most people can detect deceit only about 50 percent of the time, which is the statistical equivalent of flipping a coin."

Surprisingly, individuals in professions that one might presume give them an edge, such as psychiatrists, lawyers, law enforcement officers, and even CIA officers, did no better than anyone else, although for some reason, Secret Service agents as a body were the most skilled. Out of the 20,000 studied, only 50, dubbed "Truth Wizards", showed the ability to consistently detect liars.

There is no reason to think that asylum officers are any more astute than most of us, but the findings relating to Secret Service agents give reason to believe that one's innate skills, however minimal, can be improved upon. The Wizard Project has given rise to a field of study focusing on what are called "micro-expressions", the most subtle nuances in facial expression or body language that the Truth Wizards rely upon to make judgments about whether one is telling the truth. It would seem that this is an arena rich in possibility for the training of immigration adjudicators generally, and asylum officers particularly.

In other areas of homeland security — specifically, within the Transportation Security Administration — the federal government is already spending billions of dollars on technological advances and, apparently, at least $900 million in behavioral detection officers (although based on the publicly available data, there is at least some reason to doubt that it is founded on the kind of detailed information that came out of the "Truth Wizards" studies).

There is also the possibility of using technology to augment officers' people-reading skills. We live in an age where our computers routinely beat us at tic-tac-toe, chess, and other games of strategy. On a more sophisticated level, IBM has built a supercomputer called Watson that pummeled two former Jeopardy champions at their own game in front of a nationwide audience. According to IBM, "Watson is a cognitive technology that processes information more like a human than a computer — by understanding natural language, generating hypotheses based on evidence, and learning as it goes."

Is this science fiction or wishful thinking? Not necessarily. In the past couple of months, we have learned about a software program capable of routinely and systematically detecting the difference between real and fake expressions of pain by humans.

Perhaps it's time that we gave our immigration benefits-granting officers the same technological and training advantages being used in other fields of study. After all, so much is at stake in a world of asymmetrical threats, including American public safety and national security.