This is the final (and much delayed)  installment in a series about preparing a client’s asylum affidavit.  I previously wrote about the importance of including enough detail to support a claim.  Today I want to discuss how to provide details about sensitive topics, like rape or the murder of a loved one.

For obvious reasons, most asylum applications involving discussing unpleasant events.  However, some events are more unpleasant than others.  For example, I worked on a case where my client witnessed the murder of her mother and siblings during a genocide in her country.  At the time of these murders, my client was just 11 years old.  In another case, a client was arrested while returning from a political rally.  While she was in custody, two policemen raped her.  In a third case, my client quit his political party and, in a revenge attack, he was shot six times and left for dead.

This is pretty horrific stuff, so how do you present these event in a credible manner without forcing the clients to re-live their trauma?

First, I think it is helpful if the client understands why he needs to explain the painful aspects of his case.  I am no expert, but I believe that when a client is educated about the requirements for asylum, he feels more in control of his case and this might make it easier for him to talk about past trauma. 

Second, it is important to establish a rapport with the client so she feels comfortable and safe discussing difficult issues.  While this may seem like a no-brainer, it is often difficult for busy attorneys to spend the extra time our clients need to make sure they are comfortable.

Third, it is often not necessary to provide a lot of detail about a traumatic event in order to establish past persecution.  For example, in my case–where the political activist was raped by the police while returning from a demonstration–we provided details about her political involvement, the demonstration, and her detention.  When it came to the actual rape, we stated that the police raped her, but we provided no further details about the incident.  If she has established her credibility and the fact finder believes that she has been raped, that is enough to prove past persecution.  USCIS has some good training materials for Asylum Officers, which discuss this point:

The asylum officer can elicit sufficient detail to establish credibility and gain an understanding of the basis of the claim without probing too deeply into all the details of a painful experience.

This is a key point–it is not necessary to provide all the details about an event like a rape.  The fact that the person was raped is, in-and-of-itself, sufficient to show past persecution.

Finally, and to their credit, Asylum Officers, DHS Trial Attorneys, and Immigration Judges tend to be very sensitive to an alien’s trauma.  I tell my clients about this, as I believe it helps reduce the level of intimidation and makes it easier for them to discuss their history.

While it is probably not possible to prepare a case without discussing traumatic events to some extent, it is possible–and important–to minimize the secondary trauma our clients suffer while preparing their asylum applications.

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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.

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