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TRANSCRIPT

Note: some names, words and phrases in this transcript have links, to serve as a kind of a bibliography/source to provide a bit more background on who is talking and what is being said in the documentary.

Imagine that you're in an airport in the US- any airport. You've just arrived from another country. You get off the plane, and head towards the passport inspection line. American citizens on one side, everyone else on the other

If you're not a citizen, an official in a uniform takes your fingerprints and a photo, asks you a few questions, stamps your passport, and you're on your way

But let's say that this is not a vacation- or a business trip:

Asylee: I was obliged to leave Cameroun because I was getting involved in political activity and the government of my country didn't like it. I was fleeing for my life. I wasn't planning to ask for asylum anywhere- I wasn't thinking the United States or another country- I was just wanted to leave my country and go far away.

H: I was in so deep depression because I had to flew in very short period.

H comes from a former Soviet country.

H: I had to fly in the plane about two days, changing one plane and another plane, so one country, another countries.

We met him a few months after he came to the United States. Like most people we interviewed, he asked not to have his name or personal details broadcast to protect family back home. He also specifically requested to have his voice disguised, for the same reason.

H: It was some sort of quick decision- and only one possible decision. That's why I came to the United States.

We've given H a pseudonym, because you'll be hearing from him throughout this program

H: It was just very difficult for me. I really didn't understand what happened until I arrived

People who leave their country because they fear persecution, are refugees. If they ask for protection in another country, they are called asylum seekers until their cases are decided.

Jastram: International law doesn't prescribe any particular way to determine who is a refugee.

Kate Jastram teaches at the U.C. Berkeley law school. She also used to work for the UNHCR- the United Nations agency that deals with refugees.

Jastram: What international law does say is that a country can't send someone back to where they would face torture. It's up to the country to come up with a way to figure out how are we going to identify those people who have to be protected and those people are refugees.

In the United States, Asylum officers and immigration judges decide who is eligible for protection. Only a few of the world's millions of refugees find their way to the United States. And they're a tiny percentage of the hundreds of thousands of immigrants who arrive each year.

Their need for protection has been caught up in a broader debate about the balance between openness and the need to protect the country from terrorism. Mark Krikorian is a policy analyst at the Center for Immigration studies:

Krikorian: We can let in every asylum applicant to make sure that no legitimate asylum applicant is ever turned away. Or we can reject every asylum applicant to make sure that no bogus applicant gets in. The question is: where do we draw the line? I'd have to say that tightening up asylum has a lot to recommend it.

Acer: Since September 11th we've seen a barrage of new policies that have made it toughe

Eleanor Acer is the director of the Asylum program at Human Rights First.

Acer: Some of these policies have expanded detention. Others have barred asylum seekers from refuge based on the overly expansive definition of terms related to terrorism.


H: Arriving was very good. Yeah. I had no any problems with the flight or customs officers. It was very good.

"H", the asylum seeker from the former Soviet Union, arrived at New York's JFK airport in December 2005. He arrived using his own passport and a valid visa.

But not everyone has the right documents. Many have to leave home quickly and can't wait for a visa. Or they can't ask the government that's persecuting them to provide them with a passport. They go with a fake one- or none at all, like this man from Sierra Leone:

Asylee: I didn't have the passport and when we got to the U.S., you know, obviously you are not going to get through with the fake document- you know.

Neepaye: My name is Pastor Edward Neepaye. And I'm from Liberia West Africa. I'm currently residing in Minneapolis/St Paul. I came into the country on a valid visa and um- an immigration officer approached me and said 'why are you here?'

Neepaye had actually overstayed a visa a few years back. So he was sent to a secondary inspection area, entering into what is called Expedited Removal. This is essentially a vetting process--to figure out whether or not someone should be deported immediately:

Rasmussen: This process is a screening process, but also a bureaucratic process.

Andy Rassmusen is the Research Director at the Belleview Center for Survivors of Torture in New York. He was a researcher for a study of the Expedited Removal process commissioned by Congress in 2003. Rasmussen explains that when an immigration officer interview an arriving alien, he or she has to fill out a form.

Form reading: I want to take your sworn statement regarding your application for admission to the United States.

Rasmussen: The forms have required statements which are supposed to be read to people as they come in.

Immigration officers are supposed to read the entire statement on the form out loud. The last paragraph says the United States provides protection from persecution.

Form reading: If you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance.

Hetfield: That paragraph was not read about 50% of the time.

Mark Hetfield ran the study on expedited removal. He and his researchers observed many omissions.

Hetfield: We just saw a lot of overworked inspectors who just skipped over a lot of steps which are very important in the asylum process. And this was with us in the room.

Asylee: They started ask me what will happen to me if I were to be taken back to Sierra Leone. I said it would be too risky for me to go because, you know, the war was going on. No one was in control. People were being killed like pigeons, I would say.

Neepaye: At the moment I was to be deported, there was a war raging in the capitol city I arrive at JFK about 5, I was kept and interrogated until 3 AM.

Hetfield: By law any asylum seeker who is placed in expedited removal must be detained until an asylum officer determines whether or not their fear of persecution is credible. This credible fear determination takes a minimum two days, sometimes two weeks or more.

Neepaye: I was left in a room all by myself. I just basically put my things on the floor, and began to sleep on the floor, after being handcuffed. Now come on, someone please tell me, am I a criminal? Why the handcuff?


H: It was very difficult period of adaptation for the new environment.

H, the asylum seeker from the former Soviet country, had valid documents, so he didn't enter the Expedited Removal process. Once he got to New York City, though, he had to figure out what to do.

H: To be honest, I was scared to tell someone what happened to me. I was in depression you know. I realized that I should do something to help myself.

What he needed was a lawyer.

H: I didn't know the country, the city, nobody. No lawyer companies. Nobody.

Hwang: The only attorney you get is that if you can afford an attorney. Many of the clients that we see they have literally left their countries with the clothes on their back.

Phil Hwang is a staff attorney at the Lawyer's Committee for Civil Rights in San Francisco, California. Asylum seekers without a lawyer have to fill out the application for asylum by themselves:

Application reading: When answering the following questions about your asylum or other protection claim you should provide a detailed and specific account of the basis of your claim to asylum or other protection.

Asylee: Without a lawyer, it wasn't going to be easy at all...

Asylee: They just give you two lines, maybe five lines...

Asylee: I wasn't able to write it in English.

Asylee: That's not enough for my story.

Application reading: To the best of your ability, provide specific dates, places and descriptions about each event or action described. You should attach documents evidencing the general conditions in the country from which you are seeking asylum or other protection and the specific facts on which you are relying to support your claim.

Asylee: I get the file from the internet. It was too short. I wanted to explain more.

Wytsma: It's not enough just to say 'I was tortured' and somebody's going to hand you a green card.

Laura Wytsma is a lawyer in Los Angeles who takes on asylum cases pro-bono: free of charge. She used to represent the government in immigration court.

Wytsma: The law is such that you need to be able to present some sort of documentary corroboration, which is very hard to get: your police report from the time the government arrested you and hauled you in, 'I want to see the police report'. And in fact those cases where they have a neat little package of evidence that causes you to wonder, you know, how did they get this and is their claim actually legitimate?

Several studies have shown that you are much more likely to be granted asylum if you have a lawyer than if you go through the process on your own. One big reason is because they have access to supporting material, like expert witnesses and country information.

Neepaye: Self-representation is tantamount to legal suicide Now that I looked at it and the time and hours that I spent with my lawyer, I realize no, I could not have done this by self representation.

Finding an attorney is not easy, especially for those in detention. People end up in detention as part of the Expedited Removal process.

Asylee: No one told me at the airport that I was to be taken to a detention center. So I wasn't ready for that and then you know, being handcuffed and in chains.

Will Coley is an immigrant rights advocate in Los Angeles:

Coley: What are the reasons for detaining asylum seekers? One of them is to ensure that they appear in court.

Strassberger: Often people get into the US, they're released and they're never seen again.

Bill Strassberger is a spokesman for the U.S. Citizenship and Immigration Service, or USCIS. A separate entity administers detention.

Strassberger: ICE has custody of the person, Immigration and Custom's Enforcement has custody of the person. They'll make a determination whether to release the person or not. Historically they've found that people in detention are more likely to appear in court for their hearing.

Will Coley disagrees, though, that detention is the only way to make people show up in court. He points to a study by the Vera institute of Justice, published in 2000. They tracked people who had been released into the community, with supervision:

Coley: 92% of those showed up for their court hearings. Which is astounding. Mind you immigration sees that as the 8% that didn't' show up as being the problem.


Keller: The Elizabeth detention center it basically is a windowless converted warehouse the anonymity of it is eerie.

Allan Keller, the director of the Belleview Center for Survivors of Torture has spent a lot of time in New Jersey's Elizabeth detention center near Newark airport, doing medical examinations of detainees.

Keller: You know, you go through a series of secured gates. Every time I went into these facilities, I you know- by the time I was done with an interview, I felt kind of claustrophobic.

There are about 15 immigrant detention centers in the U.S. Asylum seekers can also be held in county jails if there's no space.

Neepaye: It's a prison. How do you describe it? You're given prison garbs--brown, almost like khaki. Everything is monitored. It's open, public restroom.

Hetfield: Many of these places there's only one hour of recreation a day, that's supposedly outdoors. But in New York and New Jersey for example, their idea of outdoor recreation is going up to the rooftop, where you're surrounded by high concrete walls.

Neepaye: I was totally helpless. I was a caged animal.

Many asylum seekers have been tortured. That's why they fled their countries. Andy Rasmussen of the Belleview Center for Survivors of Torture says that for someone who was tortured in jail at home, being detained in jail-like conditions in the U.S. can be traumatic.

Rasmussen: Are they beaten in detention? Mostly not. Are they being tortured in detention? No, nothing like that. However, just being incarcerated after having gone through something terrible: it's like somebody who's been in a number of bad car accidents getting thrown right back into traffic.

Neepaye: There's a lot of frustration, there's a lot of despair. What is pitiable is that many of them see no light at the end of the tunnel.

Keller: The uncertainty weighs very heavily on individuals, in the asylum process in general. But particularly for individuals in detention.

Asylee: It goes on for every other day, every single day. You say to yourself, what's going to happen? What's the next step?

Neepaye: I'm normally someone who's an outgoing person. But I found that I was loosing it. Once the INS had verified that my documents were authentic, I believe I should have been paroled. It was totally unnecessary to have held me for three months.

Jastram: It is a very ad hoc, informal totally non-transparent process of deciding who gets out.

Hetfield: In NJ they release only about 3% of asylum seekers before their hearing which is 6 or 7 months down the road, usually. Chicago: 19%. And then you look in Texas: they release well over 90%.

Jastram: It seems to have to do with issues like bed space and things that don't really have to do with either the safety of the American or the expense to the government or the hardship of the asylum seeker. It's very difficult to tell why the people who are released were released, and it is very difficult to tell why the people who are not been released before their hearing were not released.

Whether you've been released from detention or not, having a lawyer helps. Though only a small number of people end up with one, because of the costs involved.

A handful of organizations work to match up asylum seekers with attorneys who will take on their cases for free--pro bono. Phil Hwang coordinates the pro bono asylum program at the Lawyer's Committee for Civil Rights in San Francisco.

Hwang: Many of these attorneys work with high priced law firms yet for our clients they provide their services for free.

Eleanor Acer runs the asylum program at Human Rights First in New York, one of the biggest pro-bono programs in the country.

Acer: We conduct a comprehensive interview of the individual and asses whether or not we believe the case is credible- and is the person in fact entitled to refugee status.

H, the asylum seeker from the former Soviet country contacted Human Rights First after he arrived in the United States.

H: It took about 2 or 3 weeks to arrange some uh, meeting during which I could tell them all my history all my story. They tell me everything about the asylum system. the procedures. It is very difficult thinking about something but do not know how it will be, how long it will be. But when you have some information you feel yourself more comfortable.

Asylee: The lady who was interviewing me at Human Rights First get a lot of time to listen to me So a couple weeks later they say I was accepting in their program. But they have to look for a lawyer for me.

Acer: There are many more asylum seekers who are in need of representation than there are organizations like ours to even represent them.

Asylee: They was telling me you have to wait. You have to wait, you have to wait.

Acer: Once we decide we're going to take on a case, we recruit a lawyer. It's amazing, actually, that lawyers are very willing to step forward and take on these kinds of cases.

Hwang: Asylum cases really can sell themselves. Because the stories that you hear are so compelling: Individuals fleeing the most horrendous, horrific persecution these really are life and death cases.


Cohen: I'm Saralyn Cohen. I'm the pro bono attorney at Shearman and Sterling. I think we do about 20 asylum cases a year.

So we get emails from groups like Human Rights First or Sanctuary for Families. So this email gave us a little description of the case. This case involves a mother, three daughters and her two nieces who are fleeing from a west African country.

So I read this. Then I go ahead and circulate an email to all the attorneys. Very often it's picked up by someone based on the- client's nationality and their language.

So I think I probably circulated it at about 9 o'clock at night. And- got a response pretty much right away from a new- brand new first year she sent it from her Blackberry it was 10:02 PM. [laugh]

We treat pro bono like any other matter at the firm. People work here around the clock anyway, so whether they're doing the pro bono at 11 AM or 2 AM, it kind of just mixes in with the other work.

Human Rights First found a pair of lawyers to represent H from the New York firm Covington and Burling. He met them in February 2006, three months after he arrived in the U.S.

H: My first meeting was- how do you say? Not so comfortable for me. I thought that they are classical lawyers [laugh], with cold eyes, without any emotions [laugh]

Pinsky: I think both of our impressions was that our client does not look like his picture: not smiling. And in real life- our client, his default is to smile.

David Pinsky and his colleague Olivia Radin do civil litigation and white collar criminal defense work at the firm. Radin has taken on some pro-bono asylum cases before. This is David's first. He was particularly interested in H because his own family is from the former Soviet Union, so they can speak Russian together. This puts H at ease.

H: When you feel yourself comfortable like friends with the lawyers, it's a great thing. It helped me to survive.

It helps for asylum seekers to feel comfortable with their lawyers, because they have to provide as much detail as possible about what happened to them to their lawyers. It can be a painful process telling it to anyone, much less to people they just met.

This man from Liberia was represented by Keren Tal and Elena Tsaneva from Davis Polk & Wardwell in New York:

Asylee: Going through the asylum process is like- doing a surgical operation without anesthesia. Every time I have to tell my story over, I got to go through the pains. Most of the time they had to drag it out of me, to be honest with you, they had to drag it out.

Tal: We knew that what we saw in his affidavit was not the whole story So what we basically tried to do was to explain to our client that we are not the government, we are not the asylum officers we are on the same side.

Asylee: I figured that If I wanted to help my own case I had to be open with them and tell them everything.

The lawyers shape the stories into legal arguments to convince an asylum officer or an immigration judge that their client meets the legal requirements for asylum. The criteria are written into international and U.S. law. A person has to have a "well founded fear" that they will be persecuted because of their race, religion, nationality, political opinion or membership in a particular social group.

Asylee: I'm from Burma. The military government, they arrested for meeting with Aung San Suu Kyi. She's the pro democracy leader in Burma. They are especially afraid because I am very young and then I'm a student. They are afraid that something big will happen directed by me. So they punished me quite severely.

An asylum seeker has to show that he or she was persecuted specifically because of one of the five grounds. It's not always easy to prove, though. Mark Hetfield gives an example of a religious case, where defining religious practices can get complicated:

Hetfield: In China there's the official Catholic church, and there's the unofficial Catholic church. The official church are part of the state bureaucracy certain religious teachings are illegal in china, for example the virgin birth as well as the immaculate conception are both regarded as sus got their education in the official Catholic church. So they may not be all that well versed in the facts of it- because it wasn't really taught to them. So an asylum adjudicator might say well everyone knows, who's Catholic, what the virgin birth is, if you ask somebody that question and they don't know, in China there's a good reason for it.


At Covington and Burling, H and his lawyers are preparing the asylum application.

Radin: The most important thing that we do is preparing a strong factual case. It's really hammering all the details.

Pinsky: Some of the witnesses who we'd like to get to corroborate the story are still in the former Soviet Union. Our biggest problem is security: we're worried about e-mails being monitored, telephone calls being monitored. Right now I'm pretty optimistic. There's always the concern that something unforeseen could happen you hear stories about people being designated as being a security risk to the United States in the context of the war on terror and stories like that kind of scare you.

Immigration law is constantly being changed and re-worked. Asylum was affected by the Patriot Act passed after 9/11, and then again in April 2005 by the Real ID Act. And these days asylum advocates are concerned about a legal concept called "material support".

Acer: Essentially anyone who has given any kind of support- to any kind of a group that uses armed weapons is considered to have given material support to a terrorist organization even under duress or fear for their life. Ironically people who are actually the victims of terrorists are being excluded from refugee protection based on these incredibly expansive definitions.

A major material support case is that of a Burmese woman who was detained for two years in El Paso, Texas while her case made its way through the courts. Judges had accepted that her claim for asylum was credible but the sticking point was that she had donated money to a Chin organization that has an armed wing.

Acer: She cannot be given asylum because by giving some donations to that group she's provided material support to a terrorist organization. And the group of course has not been categorized as a terrorist organization by the US state department. In fact the US state department has repeatedly condemned the Burmese government for its treatment of religious and ethnic minorities such as the Chin.

You're listening to American Purgatory, Political Asylum in the age of terrorism.

[END OF PART 1, STATION BREAK]

This is American Purgatory, Political Asylum in the age of terrorism.

Pinsky: We filed the application a week and a half ago.

H: That day we work about 3 hours and check all the documents and I signed all the papers that day I was just in shock. And I may say that [laugh] When I saw my case, in two huge folders, [laugh] I was amazed, really! [laugh]

Pinsky: The application itself fits into two about 3-inch binders.

Radin: The reason it's so thick is that there's both the application and there are also secondary materials: country reports, news articles primary documents, as well as statements.

This material goes above and beyond the few lines provided on the basic application form.

Pinsky: When we were actually signing the documents I was more concerned about leaving out a page, not putting a staple in the right place because I've heard that the little errors can delay the process. Kind of comical, but at the same time stressful.

They have five weeks until the interview with an asylum officer.

H: This is the first time in my life [sigh] when I am involved in so big problem.

The day of the interview, everyone agreed to meet on the street outside the law firm. Ana, the interpreter, was the first to arrive:

Ana: I've translated for a couple of immigration cases, but never before an immigration officer, so this is a little nerve-wracking for me. They're all nervous!

Ana: You're late!

Pinsky: Everybody's late I think. I literally woke up 35 minutes ago! Olivia and I were both up along with our legal assistant Michele until about 1:15 preparing, so we're kind of tired right now. I'm not nervous, I'm just hoping that our client arrives soon.

H arrives a few minutes later, wearing a pinstriped suit, and a cream colored tie.

H: I wear my suit. This is the first time in America where I use my tie.

The lawyers go upstairs and come back with three large briefcases on wheels.

Radin: We look like we're defending Enron with the amount of documents we have. There's so much stuff!

The lawyers requested that we not accompany them to the interview. They were worried about a possibly delay in the decision if the asylum office found out the case was getting media attention.

But we did get to visit an asylum office separately, where there's a different kind of preparation going on every day.

Raufer: This is where asylum officers get randomly assigned their cases in the morning.

My name is Sue Raufer, and I'm the director of the Newark Asylum office.

The Newark office is one of eight offices in the U.S. It handles cases from all around the northeast. The asylum officer corps was created in the early 1980s.

Hetfield: There was no formal system for refugees until the Refugee Act of 1980. Prior to that, they were either coming through the normal immigration system, or through ad hoc legislation that was passed for specific groups, whether it was displaced persons from World War II, or people who fled Castro's Cuba after the revolution there.

DeRossi: I came here when I was 21, in America. My name is Livia DeRossi and I come from Italy. A part of Italy that now is Slovenia.

DeRossi grew up in Istria, a region that was Italian in WWII and was handed over to Yugoslavia afterwards. When that happened, the Italians there found themselves unwelcome.

DeRossi: They made our life very miserable. They used to put people in prison, beat them up They, how can I say, they made us leave.

About 350,000 Italians like Livia DeRossi left Istria. She benefited from an ad hoc admissions procedure to get into the U.S.

DeRossi: There was the American council in Trieste, and they made you fill out all the paper, make sure you were not a communist, because that what they were afraid then. And um, also you had to go through, uh, medical examination and everything, because if there was something wrong with you, they would have never made you come here.

Istrians were just some of about 20- to 30-million people who were displaced throughout Europe after WWII. To deal with these people, who would today be considered refugees, the United Nations came up with a convention in 1951 which legally binds states to protect people.

Hetfield: That only applied to displaced persons from Europe. It was only in the 1967 Protocol which gave it worldwide jurisdiction.

In the U.S., this protocol was initially applied by the secretary of state. So in the 1970s and '80s, it was relatively easy to get asylum if you were fleeing communism. But then people began fleeing the anti-communist regimes in Latin America. The same regimes that the United States was supporting.

This contradiction between foreign policy interests and the international obligation to protect refugees was the impetus for the Refugee Act of 1980. The Act created a corps of officers who could make decisions independently, on a case by case basis.

We met H and his lawyers the day after his asylum interview, which was at the office in Rosedale Queens. They described the experience:

Pinsky: The first thing you have to do is go into a metal detector and the security guard when he saw the number of documents his first response was that this must be a pro bono case.

Radin: In terms of the waiting room Low ceilings, fluorescent lights. Linoleum floor, plastic chairs about 100 people waiting- divided into two sections of 50, facing the center of the room and then you look around the room and there was a Buddhist monk in one corner with his saffron robes, and then a family from Eastern Europe with their baby.

H: It was just like you sitting in the theater. Every group of people was just part of the play.

Radin: Everyone kind of looked their part. And I think we looked like the lawyers. [laugh]

H: Then we get inside, did registrations and sit there for about three hours we just uh , speaking with each other, tell each other jokes.

Pinsky: He's from the former Soviet Republic, so we were telling jokes about Brezhnev. We were all initially nervous going in, but after sitting there for a while, it took the edge off.

Raufer: So we'll go to the waiting room.

Sue Raufer of the Newark Asylum office gave us a tour.

Raufer: So the officers come out here and call their applicant by number as opposed to by name so that they're not announcing to the world that so and so is applying for asylum.

This is Terri Scott, he's one of our contact representatives and he's loading up our IDENT system. We take people's fingerprints and photographs And if they have been in the IDENT system before, then their photographs or fingerprints will come up again.

Scott: We had one yesterday. The guy looked older than his alleged 38 years of age, and then sure enough, when he crossed the border several years ago he was like 58 or 57 with a different name all together. And the FBI confirmed the prints.

Raufer: The asylum officer can then, ask the applicant during the course of the interview, what about the fact that someone with your fingerprints crossed the border and it was a different age.

What an asylum officer does is conduct the interview in a non-adversarial manner. If we feel that there's the possibility that we would be granting asylum to someone who might be a danger to the United States then we would send that case onto then immigration judge, where the person would be then interviewed in a much more formal, and an adversarial setting.

Ikoro: My name is Uzo Ikoro, I've been an asylum officer since January 1997 and a supervisor for a little over two years.

Ikoro goes through what she says to someone who comes into her office:

Ikoro: Good morning ma'am. My name is officer Ikoro before we go into the interview, I would like to explain to you the process...

She explains to the asylum seeker that everything in the interview is confidential, and will not get back to the person's home country.

Ikoro: Before we start, I have to place you under oath.

Asylum seekers sign a form, but they are also verbally sworn in.

Ikoro: Do you swear or affirm that any testimony you are about to give today is the truth, the whole truth and nothing but the truth...

You're trying to make somebody comfortable. And the more comfortable they are with you the more likely they will open up. They look at you as United States government official- and in their mind they're thinking, 'Oh my gosh, will they deport me from here?'

H: I try to keep my hands uh- how do you say? Without any movements but I can't stop my movements on the chair.

Pinsky: The chair was a swivel chair.

Radin: David would put his foot on the chair to stop it moving.

H: Periodically he gave me the signs, like boom, boom, stop it, stop it, stop it! [laugh]

Lee: Before we even get to the legal issue, we have to establish credibility.

Asylum Officer Francis Lee

Lee: So credibility is the first obstacle that the applicants must overcome.

H: I suppose it was part of his job to ask very, very strange questions. One question was do you have photos of your family of your children of your wife. I said yes, of course I have. Where? And I said I didn't bring them I didn't expect such a situation. It was uh- very strange. [laugh]

Radin: There was a lot of jumping around. Questions that would maybe go to the heart of the case, 'So, tell me, were you ever arrested and why not.' To, 'So what's your birthday?'

Lee: During the interview, you just rely everything as to what they say. And then after the interview you have to go and check, and verify it.

Allen: I never cease to be amazed by how- good some people are at this.

Asylum officer Letitia Allen.

Allen: There might be someone who's a very good actor that can cry real tears and get very upset, and later you look and you find out no, they're totally lying. On the other hand, the person might be so traumatized that they're totally expressionless and it really happened to them.

USCIS spokesman Bill Strassberger says asylum officers receive four hours of training each week.

Strassberger: Besides learning about immigration law, they learn about they learn about interview techniques, cross culture communication techniques, country conditions constantly being updated, because they are really making what amounts to life or death decisions.

Raufer: What the asylum officer has to do is find inconsistencies in the interview and then ask for an explanation. For example, if I told someone 'Well, it you said you were pregnant here, and then you went to the clinic here and now it appears that you were pregnant 16 months. can you explain that discrepancy?' And then when someone says, 'Well, that's how it happens in my country', that would fall under the category of implausible. And that's a real example. [laugh]

Krikorian: The fact is that most asylum applicants are in fact, lying.

Again, Mark Krikorian, policy analyst at the Center for Immigration Studies.

Krikorian: If you put the immigration judges and the regular immigration service statistics together the majority of asylum applicants are in fact, turned down.

Most applications are turned down. But that doesn't mean they're all lying. Many asylum seekers have legitimate claims that haven't been properly presented because they don't have a lawyer, or they have a language problem. Then there are the people who are telling the truth, but they don't have an asylum claim:

Allen: The guy next door wants to kill me because uh-

Ikoro: I owe money...

Allen: I chopped down his tree. That's not grounds for asylum.

Raufer: I believe that when you make up a story, if you are confronted with somebody who is adept at interviewing you, your story is not going to hold together if you start pulling at those threads, then the story starts to unravel, and that's what asylum officers do and do very well.

Critics of asylum, and of immigration in general, would like to see the criteria for asylum tightened.

Krikorian: Significant numbers of people- bad guys- have used asylum regular illegal aliens are widely using it. It's also exploited by terrorists.

Sue Raufer, director of the Newark Asylum, says the asylum process was abused in the past. Ramzi Yousef, the mastermind behind the 1993 bombing of the World Trade Center had applied for asylum.

Raufer: He had applied for asylum, and he had because there was no detention space at the time, was released into the United States. We're talking about somebody over 10 or 15 years ago, and that's all been fixed. That kind of person would be put into detention now, and they would be subjected to FBI clearances, CIA.

In the mid-1990s, well before 9/11, the asylum system was going through changes to protect it from abuse. At the time, because an asylum application came with a temporary work permit, the system was overwhelmed by people filing just to get work authorization.

Strassberger: And as a result, by 1992, '93, the system was in virtual lockdown. Congress said 'something's got to be done. Fix the system- or we'll fix it for you'.

When automatic work authorization was no longer offered, the number of applications dropped off quickly:

Strassberger: Instead of having 150,000 in a year, we had maybe 40,000. The approval rate went from a very low 15-18% to 44%. And people were getting a decision quickly.

A couple of years later Congress passed a major law that fundamentally changed the system. The law put a one year filing deadline on asylum claims, and put into place mandatory detention. Eleanor Acer of Human Rights First says the changes put up barriers:

Acer: That system made it much harder for many asylum seekers to actually access the process.

The new rules also made it harder for would-be abusers to access the process, too

H is expecting to go back to the asylum office in two weeks for a decision. There's more waiting, more uncertainty. He's not legally allowed to work.

H: When you can't work, but you have to pay your rent, pay your life, whatever. My very big concerns about my family. It's difficult to live without family, without kids, you know. This is one of the maybe difficultest things.

Asylee: You are by yourself. Nobody is asking you where what are you eating. How you manage yourself everyday.

This man was tortured in Cameroon, and spent several months in New York before he applied for asylum.

Asylee: Sometime I wasn't feel good and uh-I was planning to go to the hospital. And in the hospital I didn't want to say what happen to me, but because the doctor was keep asking me a lot of question- I was going to say maybe because I was beaten here that's why my feet was making me feel bad. And she recommended me in the program survivors of torture.

Keller: My name is Dr. Allan Keller. I am the director of the Bellevue program for survivors of tort

Asylee: It's a group therapy the group I were in was basically from West Africa. We all the same problems. And so we able to help one another. For example, someone say they can't sleep because they keep, you know, having a nightmare about what happened at home. Maybe I went through the experience myself and I know what I did to help me and I share with the group.


Two weeks after his asylum interview, H and his lawyers are headed back to Queens to get the decision.

H: Last two days I became nervousing. Inside of me is, how do you say, just a struggle between the positive and negative thoughts.

Asylum office: Hi may I see your notice please. Thank you. And may I have your ID?

That's what an asylum seeker might hear at the front desk. But that day, H was not granted asylum. Nor was he referred to a judge. Because of an administrative backlog, he was told to go home and wait for an answer in the mail.

If H doesn't get asylum, he won't be deported right away. He'll get to present his case to a judge. Affirmative and defensive cases converge in immigration court--asylum seekers in detention, and those who were denied at the asylum office all go in front of a judge. You need to prove the same thing as to an asylum officer: credibility, and the legal merits of your claim. But in court it's in front of a judge, and you are faced with an attorney from the government:

Wytsma: I'm Laura Wytsma, I'm a partner with Sonnenschein Nath & Rosenthal here in Los Angeles California. I'm a former trial attorney for the Immigration Naturalization Service now I guess Immigration and Customs Enforcement, ICE, is what it would be called. Out of law school I was litigating these asylum cases in court on a daily basis. I think there is something amazing about representing the government Making sure that people's rights are being respected, that the law is being followed.

In immigration court, an asylum seeker starts by presenting his or her case. Then the government attorney can cross examine.

Wytsma: There were situations, not many, when I would actually find that the case was so persuasive that we would not oppose it. When there was a fraudulent case, I would dig in my heals and fight those vigorously, because our system doesn't work if people can just come and say 'I was persecuted and give me asylum'.

Wytsma explains that several factors contributed to her eventually leaving the INS. A big part was unprepared lawyers.

Wytsma: We have a real problem in Los Angeles here we call it the 'notario' problem. These notarios will work with lawyers who basically pick up the case and go to court and often have not met the client. I got to the point where the first question I would ask on cross examination was 'when did you first meet your lawyer? That was my little way of documenting what was happening to these people [laugh] But it was a struggle.

The way I described it is I ran away from immigration, and then immigration caught up with me. I'm I now serve as the pro bono partner of the Los Angeles office, and because of my background I now have about half the office doing asylum cases!

Here in Los Angeles there is a general perception that your claim depends largely on who the trial attorney who appears in court that day, and the particular immigration judge. It varies greatly.

Kate Jastram and Mark Hetfield have gathered data that backs this up. They found wide variations in individual judges' approaches to asylum cases.

Hetfield: In the same city with immigration judges hearing the same cases asylum grant rates ranged from zero percent to eighty percent.

Jastram: The only real explanation is that it really matters what judge you're in front of. The judges really vary in how they see a case.

It's now been three months since H went to the asylum office to get his decision. He's still waiting for a letter. He's been in the US for nine months, and he's in limbo: a purgatory of sorts.

He invited us over for dinner at his apartment in Brooklyn.

H: This is a dish from my country and it's very popular especially during the summer because it's the dish for lazy people like me! It's just steamed in one big pot. It smells good and you may taste it!

We're still waiting for the decision from the Homeland Security office. Worst thing is that my family. Just imagine--how they can be strong without me? I can't stand when I hear the cries when I'm calling them. I sometimes cry here. I understand I have a chance to get some legal permissions here in the United States. I appreciate it very much. But from the other hand I just want to all the governmental bodies to do their work. Just see my case. And give me a decision good or bad. That's it!

We were told maybe it make take about a couple of weeks. But the same thing they told us in the summer time. Let us hope that this couple of weeks will be exactly a couple of weeks [laugh] I have no any choice. Just to hope, just to be optimist.

Jastram: Once the refugee has their hearing before an immigration judge. If their case is denied they are allowed to appeal to something called the Board of Immigration Appeals, which is a body within the Justice Department and the Board of Immigration Appeals has suffered tremendously over the past few years the number of judges has been cut dramatically, they have been told that they need speed up their work to address a huge backlog.

Acer: Attorney General Ashcroft back in 2002 issued a regulation that sped up the Board of Immigration Appeals to such an extent that the Board was essentially simply rubberstamping for quite a while the decisions of individual immigration judges.

The result, is that cases are ending up in federal circuit courts on appeal.

Wytsma: The circuit courts are seeing half their dockets as immigration cases and immigration appeals. Even the most conservative judges have been very critical of the process because of the lack of a meaningful appellate review by the Board of Immigration appeals.

The 9th circuit, in California, keeps recordings of oral arguments before its panels of judges, and provides them on the internet.

Wytsma: One case that comes to mind is we handled an appeal on behalf of a Christian Armenian woman from Iran.

Wytsma in court: Good morning your honor. May it please the court, my name is Laura Wytsma and I represent the petitioner...

The 9th circuit heard this case on appeal in 2005.

Wytsma: This woman, her daughter had been killed. She was a journalist in Iran and she had been killed and the lawyering was so poor that the immigration judge just didn't believe her story We're talking about a woman from Iran, described as the axis of evil, and yet the government kept arguing that it was reasonable for the immigration judge to have expected a death certificate for the daughter, the journalist who was killed.

Lawyer in court: There is no evidence that Iran is the type of society where those records are not easily available-

Judge: I don't want to beat up on you personally, and if my questions seem a little sharp it's only because I'm a little perturbed at the immigration service- but the immigration judge essentially said you could go to Iran and get a death certificate from the daughter who disappeared after she was taken away by the Ayatollah's secret police, and we think she's dead, but they didn't even return the corpse to her. And the IJ then says she should have been able to get a death certificate? That's a little far fetched speculation...

Lawyer: I don't think it's far fetched speculation at all...

Wytsma: One of the most interesting things about the oral argument one of the judges asked him, what happens if we affirm the decision below?

Judge: Tell me practically what happens if uh- if you win here? Does she get removed to Iran?

Wytsma: And the government lawyer was unable to answer that question.

Lawyer: I- I don't know. I have no idea whether or not Iran accepts people back. I just have no idea.

Judge: Well if you don't know- in the office of immigration litigation, as the representative of the attorney general, who do we ask?

Wytsma: He was fighting for an order without any thought or consideration of the consequences. What will happen if in fact the order of removal is affirmed?

Judge: You just enter this order and it's meaningless. This poor woman, what's she going to do, sit in immigration jail? I trust the government is not seeking to incarcerate an 89 year old woman?

Wytsma: Here we had a situation where the government was so focused on the result, a sort of win-at-any-cost attitude that it didn't take a step back to think about what it was fighting for.


If a judge does believe an asylum seeker, and finds the case justified, she can grant asylum right then and there.

Asylee: She granted me and I was like a- a new baby who just get borned. That's how I see it.

Asylee: It was like uh- you see someone being free from execution? Yeah that's the way I felt. I was free from going to the gallows. That's how I felt.

If you are granted asylum at the asylum office, you might hear something like this:

Asylum office: Congratulations, you've been granted asylum by the United States.

H did not hear this at the asylum office. Instead, after four months of waiting he finally received a letter in the mail.

H: After I opened it and I check myself, by the vocabulary. At that moment I felt myself very, very uh- safe. And uh- how do you say, protected I couldn't stop my tears because I just saw my family in front of my eyes.

Asylees can bring spouses and unmarried children to join them in the United Sates. H will start that process. After over a year of waiting, he can now start to build a new life for himself.

H: This is the start of the changings. So now this new period of my life beginning you know. And I cried for a while, really [laugh] and then I was so happy, and I understood that I can do everything.