By Luis Campos, Immigration Attorney, The Alliance of Idaho
Persecution, we have repeatedly held is an extreme concept that means something considerably more than discrimination or harassment. – Sharma v Garland in the 9th Circuit Court of Appeals, No. 20-70238 (2021)
Because it is an extreme concept, persecution does not include every sort of treatment our society regards as offensive . . . This means that some circumstances that cause petitioners physical discomfort or loss of liberty do not qualify as persecution, despite the fact that such conditions have caused the petitioners some harm. – Sharma v. Garland in the 9th Circuit Court of Appeals, No. 20-70238 (2021)
Asylum law demands that its applicants narrate their pain—the more painful, the better. Applicants tell of traumas, emotional or physical or both, and hope they are enough to satisfy decision-makers. Memories must be mined and suffering must be conjured again and again. Asylum seekers recollect their hardships and agonies for their advocates, as well as border agents and U.S. asylum officers. Their accounts will also be repeated and retold to government lawyers, whose task it is to scrutinize and minimize, especially during cross examination in removal proceedings. Immigration and appellate judges will assess the stories not for humanitarian considerations, but rather for evidentiary value. A legal record will ultimately be constructed, painful memory by painful memory, stacked and assembled to depict persecution in its most extreme forms.
As an asylum lawyer, I too am an actor in this theatre. More than twenty years into a successful career as an academic and corporate immigration lawyer, I abandoned professional familiarity, choosing to work with asylum seekers and for human rights (more on that below). An entirely new area of the law had to be learned and new concepts comprehended.
The U.S. asylum statute speaks in terms of an asylum seeker’s burden to establish her well-founded fear of persecution if forced to return to the home country. The law refers to this as a burden, a legal requirement that must be satisfied by the asylum seeker to secure approval. The codified law, however, does not define the meaning of persecution. Filling this void is left to the courts, which make qualitative and quantitative assessments of the level of violence required. I quickly learned that the infliction of trauma, both in its severity and consistency, is the ultimate metric for a successful claim to protection under our asylum laws.
Further, for asylum to be granted, the persecution cannot exist in isolation. It must have been perpetrated on account of a statutorily permissible category. Here the law creates unique taxonomies that must underlie the infliction of mental or physical violence. In other words, the motive of the perpetrator requires identification. Asylum law only validates persecution as legitimate if it is committed on account of race, religion, nationality, political opinion, or membership in a particular social group (that is identifiable and particular). Assault, injury, and bloodshed owing to other motives are marginalized as unsatisfactory and dismissed. The law only privileges the five categories contained in the statute. The “on account of” requirement is also known as nexus in asylum law.
One thing is clear, with the assistance of counsel, clients must build up their vulnerabilities through well-crafted accounts of trauma supported by evidence such as testimony; photos (showing the devastated body); medical or psychological reports (showing the ravaged mind); police reports, which add layers of institutional legitimacy to the story; transcripts of threatening messages by perpetrators; and testimonials from acquaintances that can further verify the harms inflicted. Beyond the evidence, Judges will also assess the asylum seeker’s credibility. Has she chosen the rights words, the appropriate gestures, adequate expressions, but without too much emotion, perhaps signaling embellishment? This is my job—to ensure a carefully crafted narrative, in all its aspects, that is veridical, credible, and compelling enough for the law’s consumption.
As lawyers and human rights advocates, we are counselors tasked with probing memories, shaking loose the descriptive nuggets that hold promise for success. There is a specific way of talking about persecution, which is likely foreign to the uninitiated. We know the shape to which the accounts should conform and how they should be articulated for the record. Often we must conduct several interviews with our clients to identify and select the best ones – that is, those that satisfy the law’s conception of pain. We must be sympathetic listeners, but also harsh judges to prepare clients for the difficulty of performing for the spectacle of the adversarial trial that will ultimately decide the client’s life course: protection by and in the United States or removal by and from the United States.
The stories we hear from clients also speak of persistence and hope. Asylum seekers are resilient and inspiring. This is a central reason for my desire to work in this field. The trauma of being uprooted and forced to leave is horrific, yet my clients have the fortitude to face the unfamiliar. They are human beings who have encountered the unimaginable in the home country. They endure the dangers of a perilous journey, many falling prey to unscrupulous smugglers or traffickers. I have heard accounts of beatings, robbery, and sexual assaults—prices to pay for getting to the United States. Arriving at our borders, they are detained in remote “correctional facilities,” and criminally prosecuted for seeking refuge (yes, our laws criminalize their efforts to reach the United States to request asylum) .
Yet, despite the burdens they carry—legal and otherwise—our clients are survivors. Their stories attest to this. I can only hope that my efforts give some minor comfort, helping them navigate a complex, indeed onerous, legal system that is often unintelligible to experienced lawyers. Trauma lawyering can be emotionally exhausting, but it is a responsibility I gladly choose to accept.
Luis Campos, Immigration Attorney
Wood River Asylum Program
The Alliance of Idaho