The heart of an asylum case is the applicant’s affidavit. There, she tells her story and explains why she needs the protection of asylum. Because affidavits are so important, I thought it might be helpful to do a short series about preparing a decent affidavit.
One of the most common problems in affidavits is the overuse of the passive voice. Not to be all English teacher-y, but I’ve seen too many affidavits where I have no idea who is doing what to whom, and one reason for this confusion is the use of passive voice. I imagine that if an affidavit is confusing for me as an attorney reviewing the case, it is quite possibly fatal to the applicant’s chances for success with an Asylum Officer or an Immigration Judge.
Of course, most asylum seekers are not native English speakers, and the overuse of passive voice stems as much from linguistic and cultural differences as it does from poor English grammar. The problem is not confined to pro se applicants, however, but extends to cases prepared by notarios and attorneys as well—people who should know better.
Here is a made-up, but close-to-real-life example of an affidavit written in the passive voice:
On June 10, 2005, I was arrested at my house. I was taken to the police detention center. There, I was interrogated and beaten.
If I have inherited this case (perhaps because the applicant was referred to Court by the Asylum Office), each of these sentences is more annoying than the last. I want to know who arrested the applicant and whether anyone witnessed the arrest. Also, who took the applicant to the detention center? How did he get there? Who interrogated the applicant? How many times was he interrogated? Who beat him? How many times was the applicant beaten? What injuries did he sustain? Did he say anything during the beating? Did the interrogator(s) say anything? Here is an (abbreviated) example of how the above statement might be re-written:
On June 10, 2005, three soldiers came to my house. My father answered the door. The leader of the group ordered my father to bring me to the door. When I came to the door, the soldiers handcuffed me and drove me to the Central Police Station. At the station, they put me in a holding cell with ten other prisoners. After an hour, a guard brought me to a small office. There were two soldiers standing in the room and a security agent sitting at a desk. The agent ordered me to sit down. He asked me why I participated in an opposition demonstration. When I denied that I participated in any demonstration, he slapped me hard across my face. My nose was bleeding.
You get the idea. By reducing or eliminating passive voice from the passage, we have a much better idea about what happened. I also added more detail, something that I will discuss in a future post.
The problem with passive voice is that it makes it more difficult to understand what is happening in the story. If the fact finder cannot understand what is happening, he cannot compare the applicant’s testimony to her written affidavit. Comparing the written and oral statements is one method for determining credibility. Therefore, overuse of passive voice makes credibility determinations more difficult, and makes it more likely your client’s case will be denied. Thus, in the words of Dorothy Parker, “The passive tense should not be used.”
Originally posted on the Asylumist: www.Asylumist.com.
Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants.In December 2011, Washingtonian magazine recognized Dr. Dzubow as one of the best immigration lawyers in the Washington, DC area; in March 2011, he was listed as one of the top 25 legal minds in the country in the area of immigration law. Mr. Dzubow is also an adjunct professor of law at George Mason University in Virginia.