Making the case for an asylum seeker

By Nathan Mackenzie, J.D. ’17

Nathan Mackenzie, J.D. ’17

While most immigration cases drag on for months, my most challenging and rewarding case in the Harvard Immigration & Refugee Clinic lasted only one frantic week.

It started with a desperate phone call from one of the clinic’s former clients. Her younger sister, “Sarah”, had been detained at the border while trying to enter the U.S. She was due to be “removed” back to El Salvador within the week (“removed” is the term used in place of “deported” for people who have not been lawfully admitted into the U.S.). The former client told my supervising attorney, Maggie Morgan, that Sarah was running from MS13, one of the violent street gangs that has been terrorizing El Salvador. The gang had threatened Sarah before she fled and she feared that they would kill her if she went back. Maggie said she would do what she could. I signed on to assist.

Sarah had been in the U.S. for fewer than 2 weeks and was caught near the border, which made her subject to what is known as Expedited Removal. That meant that she could be removed without a formal hearing unless she passed a Credible Fear Screening. These brief, preliminary screenings are designed to ensure that the U.S. does not deport people who may have a viable asylum claim, as doing so would violate both international (the 1951 Refugee Convention) and domestic (the Immigration and Naturalization Act) refugee law. Unfortunately, Sarah had already had her Credible Fear interview and she had failed.

Sarah’s failure did not make sense to us. She has family members in the U.S. who have received asylum based on very similar harms. These claims involved persecution for membership in her family, for being a woman in El Salvador without male relatives to protect her, and for political opinions expressed against gangs. Despite all of terrible circumstances she had fled, the government determined that Sarah’s fear was not sufficient to form the basis of a potential asylum claim.

Sarah’s failure highlights a major issue with Credible Fear Screenings. They are brief and completed under less-than-ideal conditions. Often the questions asked do not elicit the right information from the applicant. Applicants rarely understand the contours of U.S. asylum law and almost none speak with an attorney before their interview. As a result, many applicants only tell the interviewing officer about the most pressing reason they fled. For many, those reasons are gang threats and violence, but some officials are very reluctant to approve gang claims. Asylum requires that a person fear persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group. Many officials do not recognize gang claims as fitting within this definition, even though a lot of these claims are eventually successful in immigration court once they have been further developed. Additionally, these same applicants may also face other threats in their home countries that, though less concerning to them at the moment of their interviews, greatly increase the strength of their asylum claim. Without proper counsel, applicants often fail to raise these claims.

Unfortunately, Sarah encountered all of these issues in her original screening. It happened quickly and she did not have the opportunity to speak with a lawyer beforehand. She told the officer about the most pressing fear: the threats the gangs had made against her. Since these gang-related claims are not well understood, denials are common. The interviewing official did not find that the threats were connected to a protected ground. However, we had additional information, both from our own discussion with her and from speaking with her sisters, and we felt we could make a good argument for asylum based on her trouble with the gang. Additionally, we knew she had several other potential claims relating to other circumstances she faced back in El Salvador. As such, we decided to request a second Credible Fear Screening and file additional information to explain the dangers Sarah would face if she were removed back to her home country.

It was a solid plan, but we were fighting against the clock. The government could have removed Sarah at any moment. We needed more time to prepare the case, but Sarah could be removed at any moment, so Maggie called the local asylum office near the detention center where Sarah was being held. After hearing the details of the case, an asylum officer agreed to speak with Immigration and Customs Enforcement (ICE) and request that they delay Sarah’s removal until we had the chance to file our request for a second Credible Fear Screening.

Next, I met with two of Sarah’s sisters to get background and context for their family’s situation in El Salvador. They provided amplifying information on the threats Sarah faced and highlighted details that went back to before Sarah was born. I used this information to draft an affidavit that the sisters signed and that we included with our request to the asylum office. The other pieces of the request included a legal letter detailing Sarah’s several potential claims, signed forms authorizing Maggie to represent her, proof of her sisters’ grants of asylum, and other documents that supported her claims.

Finally, we needed to make sure Sarah fully understood all of requirements for asylum and the background information we had collected on her case. Even if the asylum office granted our request, Sarah would still need to assert her potential asylum claims in the second interview. To give Sarah the best chance of success, we got her on the phone along with her sisters. I outlined the requirements for asylum and the potential claims we saw in her case. Her sisters then discussed the family situation and other background information with her, stressing the importance of telling the interviewing officer everything. It was a difficult conversation, detailing all of the worst things that had happened in this woman’s life. Her sisters who had been through it before, comforted her and kept stressing the need for her to be strong so she could stay in the U.S.

This whole process happened over the course of just a few days. It had been quite hectic, consuming a lot of hours in our already busy schedules, but the seriousness of the consequences kept us motivated and we pushed through. I am so glad we did. A few days after we sent our request, Maggie received word back that the asylum office had re-interviewed Sarah. They found that she had a credible fear of persecution on account of a protected ground and agreed not to remove her before she could make a full asylum claim in front of an immigration judge. She would not be removed and would likely be released from detention to live with her sisters in Boston while she prepared her asylum claim.

This case highlights why applicants need access to legal representation prior to and during Credible Fear Screenings. Attorneys and law students can help properly frame an applicant’s case by aligning the facts with current asylum law to create a solid argument for relief. Without an attorney, Sarah’s original interviewing officer had dismissed her case without seeing the underlying political context. Had the Harvard Immigration & Refugee Clinic not intervened, the government would have removed Sarah back to El Salvador. Her case highlights that Credible Fear Screenings can mean the difference between life and death for the applicant. Sarah was lucky to have family here in the U.S. who helped her get legal aid, but many others are not so fortunate. Providing legal representation during Credible Fear Screenings would help ensure that eligible applicants receive this life saving relief as a matter of law, not as a matter of luck.