This is the second part in a short series about helping asylum seekers prepare good affidavits. The first posting dealt with the overuse of the passive voice. Today, I want to discuss the appropriate level of detail that should be included in the affidavit.
One problem that I’ve encountered in many affidavits is that they contain too little detail for important topics and too much detail for irrelevant topics. One reason for this is that victims of persecution often avoid focusing on the painful or depressing aspects of their cases–they do not want to re-live difficult memories. Another reason is that the asylum seekers do not always understand what information is legally relevant.
When preparing an affidavit, it is important to keep in mind the requirements for asylum–the applicant must demonstrate a well-founded fear of persecution based on a protected ground. Often, the applicant has suffered past persecution, and this creates a presumption of future persecution. In some cases, there are other legal issues: Did the applicant file within one year of her arrival in the U.S.? Is there a material support issue? Are there changed country conditions in the home country so that it is now safe to return there? Once you know the legal issues in the case, you can focus on developing the factual record related to those issues.
The easiest example of this is past persecution. In most cases, if an asylum applicant demonstrates past persecution based on race, religion, nationality, particular social group or political opinion, he will receive asylum. To prove past persecution, the affidavit needs to provide sufficient detail about the claimed persecution so that the fact finder can evaluate whether the applicant was, in fact, persecuted. If the affidavit merely says, “I was tortured” or “I was beaten,” that is insufficient.
Various courts have defined the term “persecution,” and that definition includes “the infliction of suffering or harm.” To demonstrate suffering or harm, the applicant must explain in detail what happened. For example, instead of “I was beaten,” give some detail:
As soon as I left the opposition political party meeting, three policemen stopped me on the street. They accused me of supporting the opposition party. One of the men punched me in the stomach. The blow was very painful and I could not breath for a few moments. I fell onto the ground and I was in too much pain to stand up. When I saw the armed policemen above me, I was afraid they might kill me. While I was on the ground, another officer kicked me with his military boot in my back. It felt like he broke my ribs and I cried out. Afterwards, there was a large bruise on my back.
The affidavit here emphasizes why the police attacked (political opinion) and describes the details of the beating. It also mentions that the physical assault was painful (since we are trying to demonstrate suffering). It is questionable whether one punch and one kick would qualify as “past persecution,” but when you provide more details about the event, and explain how painful and frightening it was, you make it more likely that the fact finder will conclude that there was past persecution.
I like to think about the affidavit in terms of time. For less important events, time moves quickly and one paragraph of the affidavit may cover days, months or years. But for legally relevant events, such as a police beating, time slows down. So one paragraph about a beating might cover only a few seconds. Remember–the fact finder is not interested in reading a novel. She just wants to know whether the applicant meets the requirements for asylum. When the affidavit focuses on the legally relevant facts, it makes the job of the IJ or the Asylum Officer easier. And a happy fact finder is more likely to grant relief.
One final point about adding more details to the affidavit. I find that such details are quite helpful in the event of an appeal to the BIA. In many cases, there is limited time for testimony, and applicants sometimes gloss over details of the story. When that happens, the transcript on appeal may be somewhat lacking. If so, you can use details from the affidavit to supplement the transcript and make a more compelling appeal brief.
While obtaining legally relevant details can be time consuming, it greatly increases the chance for a successful outcome and is well worth the trouble.
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.