The Asylumist

As the sexual assault case against former International Monetary Fund head and potential French president Dominique Strauss-Kahn appears to be falling apart, attention has turned to the woman who accused him of attacking her.

NY City Maids may have judged Mr. Strauss-Kahn too quickly.

Mr. Strauss-Kahn was initially arrested in May and charged with attempting to rape a maid in his New York hotel room. He was released under very strict supervision and resigned his job at the IMF. Now, the conditions of his release have been dramatically eased, and the case against him appears on the verge of collapse. The reversal came about because the NY Police Department uncovered evidence that the purported victim lied about the incident and has committed various acts of fraud, including filing a phony claim for asylum.

The alleged victim is a Guinean woman who obtained her status in the U.S. in 2004 by claiming political asylum. The Daily Mail reports that the victim admitted to the NYPD that much of her asylum claim had been fabricated:

In her application for asylum to the U.S. for herself and her daughter in 2004 she said that the home she shared with her husband in Guinea was burned by soldiers for the country’s regime. Her husband was then supposedly tortured in jail where he died of his injuries. According to prosecutors, she later admitted this was a lie. Prosecutors also said that she cried when she recounted to them the story from her asylum application of how she had been gang-raped in Guinea, but later admitted that this was also a lie.

The (probably) false asylum application, combined with other evidence of fraud (including a taped phone conversation where the victim indicated she hoped to make money by pursuing charges against Mr. Strauss-Kahn) have led the prosecution to radically re-assess the credibility of the victim and the strength of their case.

If it turns out that the victim did lie on her asylum application, she faces deportation and potential jail time. But in evaluating what happened in her asylum case (and in the Strauss-Kahn affair), there are a few points to keep in mind. First, many asylum seekers with legitimate claims augment their stories with the encouragement of unscrupulous lawyers or notarios. Such asylum seekers do not understand the law and they merely follow the instructions of their lawyers. In this way, legitimate asylum seekers are sometimes denied asylum and (rightly) accused of fraud. Of course, even though such people are naive and are victims of dishonest attorneys, they are responsible for their own actions and they need to be held accountable. As the authorities investigate the Guinean woman and her asylum claim, they should determine who helped prepare the asylum case and–if that person was involved in the fraud–they should prosecute the person responsible. While asylum fraud is a problem, the best way to reduce fraud is to prosecute the attorneys or notarios who prepare fraudulent claims.

In addition, we should keep in mind that the Guinean woman is innocent until proven guilty. After Mr. Strauss-Kahn’s arrest, the press and the District Attorney essentially convicted him before evaluating the evidence. We should not make the same mistake again. Rather than rush to judgment, we should wait for the case to develop and see where the evidence leads. Asylum seekers are often people who have suffered severe traumas. Such people are particularly susceptible to manipulation and intimidation, and might sometimes change their stories under pressure. Maybe that is what happened here, and maybe not. Since we don’t yet know, we should take a lesson from the case of Mr. Strauss-Kahn, and avoid reaching a conclusion until we know more.

The Board of Immigration Appeals earlier this week held that an Immigration Judge can make a determination that an asylum application is frivolous even in the absence of a final decision on the merits of that application. See Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010). The Board also held that withdrawal of the alien’s asylum application after the required warnings and safeguards have been provided does not preclude a finding that the application is frivolous.

In Matter of X-M-C-, the alien filed an affirmative asylum application that contained false information. After an interview at the Asylum Office in California, the case was referred to an Immigration Court. During a court hearing, the alien admitted that her asylum claim and her testimony before the Asylum Officer were false. She withdrew her application for asylum and applied for adjustment of status. She also admitted to submitting fraudulent documents. The IJ denied the adjustment of status holding that the later recantation of her story did “not waive the fact that a frivolous application has been filed.” The BIA found:

[An] Immigration Judge’s authority to determine that an alien has knowingly made a frivolous application for asylum is not limited to circumstances in which the Immigration Judge makes a final determination on the merits of the application. The relevant provisions of the Act and the regulations clearly indicate that an inquiry into whether an application is frivolous can be triggered once the application is “made” or “filed.”

“Consequently,” the Board held, “after a determination has been made that an asylum application is frivolous, a separate evaluation of the merits of the application is not necessary.”

The Board also determined that withdrawal of the asylum application does not prevent a determination that the application was frivolous:

The plain language of section 208(d)(6) clearly provides that an asylum application can be deemed frivolous once it is “made” and the required warnings have been given. Allowing the preemptive withdrawal of an application to prevent a finding of frivolousness would undermine both the plain language of, and the policy behind, section 208(d)(6)—as well as the potency of the required warnings. An alien, such as the respondent, who not only filed a frivolous application but also testified falsely in support of that application to an asylum officer could escape the consequences deliberately chosen by Congress to prevent such abuse of the system.

While applicants should be encouraged to recant false statements and withdraw false applications, the Immigration Judge and this Board are not prevented from finding that an application is frivolous simply because the applicant withdrew the application or recanted false statements after the appropriate warnings and safeguards were given, but prior to a decision on the merits.

The paragraph quoted immediately above lays bare the dilemma of cases involving fraudulent asylum applications. On the one hand, we want to encourage aliens to recant false statements. On the other hand, Congress has plainly indicated that aliens who make false statements should be punished. The alien who makes up a claim where there is none has earned such treatment. But aliens who have legitimate claims often “enhance” their story because they feel (or are told) that they should do so. Such aliens are–to me at least–much more sympathetic. In general, IJs seem to distinguish between these two categories of fraudsters, treating the latter better than the former.

Matter of X-M-C- does not require frivolous findings and does not prevent IJs from distinguishing the different types of fraud. It does, however, make clear that an alien cannot protect herself from a frivolous finding by withdrawing her asylum application.

Strauss-Kahn’s Accuser May Have Lied to Gain Asylum in the US

The BIA Rules on Frivolous Asylum Claims