Last month, my client was arrested by the FBI and charged with visa fraud, which carries a maximum penalty of 10 years in prison. He stands accused of lying on his I-589 asylum application and at his asylum interview. The client was held for a day or two and then released with instructions to appear in federal court.
My client’s case is both a cautionary tale and a sign of the times, so I wanted to discuss it here. But I am somewhat limited in what I can say, given that he has an active criminal case (not to mention a pending asylum case).
The charging documents in the criminal case allege that my client traveled from his home country, Country A, to a third country, Country B, and registered with the United Nations using a UNHCR Refugee Resettlement Form (“RRF”) in 2010. The RRF allegedly includes a photo of my client and contact information for him in Country B. The United Nations tried several times to reach the client in 2014 and 2015, but when he could not be reached, the UN closed his refugee resettlement case.
The documents also allege that my client applied for a non-immigrant visa to the United States, and then came to this country in 2013. After arriving in the U.S., my client applied for asylum using form I-589.
The asylum form, Part C, Question 2.B., asks whether “you, your spouse, your children, your parents, or your siblings ever applied for or received any lawful status in any country other than the one from which you are now claiming asylum?” If the answer is “yes,” the applicant must provide “the name of each country and the length of stay, the person’s status while there, the reason for leaving, whether or not the person is entitled to return for lawful residence purposes, and whether the person applied for refugee status or for asylum while there, and if not, why he or she did not do so.” According to the charging document, my client did not inform USCIS that he applied for refugee status while in Country B. The FBI charges that he deliberately omitted this information in order to conceal his past travels or possible legal status in Country B.
The charging documents also refer to my client’s interview at the asylum office. According to the documents, the Asylum Officer asked whether my client had been in Country B, and he denied having ever been there.
Based on the information on the form and his testimony at the interview, the charging documents allege that my client lied under oath, and that his lies constitute visa fraud in violation of 18 U.S.C. § 1546(a).
Whether or not the government has a strong case against my client, and my own opinion of his case (and his veracity) are not issues I can discuss here. Instead, I want to talk about two other points. First, what this charge means for asylum seekers in general, and second, whether my client’s criminal case represents a new trend from the Trump Administration or is simply business as usual.
First, what does it mean that an asylum seeker can be charged with a crime for allegedly lying on his application? In fact, this is nothing new. The signature page of the asylum form clearly indicates (in language that no one ever bothers to read) that lying on the form carries criminal and immigration consequences, including possible imprisonment of up to 25 years.
Frankly, I am not all that sympathetic to people who lie to obtain immigration status in the United States. Our asylum system was created to help people fleeing persecution. Asylum seekers who lie damage the integrity of that system and erode public confidence in the asylum process. Worst of all, they harm legitimate asylum applicants by causing their cases to move more slowly and by making asylum more difficult to win. Coming to a new country and requesting asylum comes with certain obligations, such as learning the rules of the new country and following those rules, and that is what asylum seekers must do.
On the other hand, I do understand why some people lie. Many asylum seekers come from countries where the government is little more than a criminal institution. They have no faith in government because their life experience teaches them otherwise. To survive in such places, people must regularly lie to their governments or pay bribes to get things done. It’s not surprising that when such people reach the U.S., they have little compunction about lying on their immigration forms.
Further, many people coming to the United States are at the mercy of the community members they know who are already here. If such people are honest, informed, and willing to help, asylum seekers will get good advice. But if the community members happen to be dishonest or ill-informed, or if they are trying to take advantage of their countrymen (as happens all too often), the asylum seekers may be convinced to lie, even when it is against their own best interests. In many cases, the “lies” are grounded in naivete rather than mendacity. They are more a product of bad luck than moral turpitude. But the rules is the rules, and people who do not follow the rules may have to face the consequences.
My second question is whether the criminal case against my client is a sign that the Trump Administration is ramping up prosecutions against asylum seekers?
One anecdote does not a trend make. And as usual, the best source of statistical information is TRAC Immigration. TRAC’s most recent report about prosecutions for immigration violations (current as of October 2017) reveals something of a mixed bag.
Prosecutions for all immigration violations are up 3.4% from 2016, and such prosecutions have been on an upward trajectory since about April 2017, but they are still significantly below the peak period of immigration prosecutions in 2012. The vast majority of these prosecutions relate to Re-entry of a Deported Alien (8 U.S.C. § 1326 – 1,551 cases filed in October 2017) and Bringing In and Harboring Certain Aliens (8 U.S.C. § 1324 – 295 cases filed in October 2017). A minority of prosecutions (54 cases) were filed under 8 U.S.C. § 1546 (the statute my client was charged under), and another dozen or so cases were filed based on other fraud-related charges (we do not know how many of these cases involved asylum seekers, and how many involved other types of immigration fraud).
For comparison’s sake, the most recent data shows that non-citizens are applying for asylum at the rate of about 12,000 per month (this only counts affirmative cases, not court cases), so only a very small percentage (about 0.6% at most–and probably much less) of asylum seekers are being criminally charged with fraud. Further, according to the TRAC data, the number of aliens charged under 8 U.S.C. § 1546 has actually declined over the past year.
So the short answer is probably that, while prosecutions for immigration fraud in general are on the increase, in absolute numbers, very few people are being charged, and there is (so far) no real evidence pointing to an increase in prosecutions for asylum fraud. Of course, the best way to ensure that you don’t defy the odds and end up in criminal court is to tell the truth.
