Preparing the Asylum Declaration
Every application for asylum should include a declaration, or narrative from the client, detailing their experiences in their country of origin, reasons for fleeing, and reasons that they fear returning. This document is the single most important component of the written asylum application because it allows the client to tell their story completely and, as much as possible, in their own words.
It is often advisable (if the client speaks English, or if you and the client both speak another language—otherwise the burden of translation can be too great) to ask the client to write a draft statement which will serve as the starting point in revisions which you and client will work on together. There are no rules about what length a declaration ought to be, as long as the declaration thoroughly conveys the client’s story. That being said, most declarations will be in the 10-25 page range. The declaration should be written in numbered paragraph form for easy reference during testimony, in written briefs, or in closing arguments.
Each declaration will of course be different, as every applicant’s personal experience is different. In general, the declaration should provide a detailed view of the client’s life in their country of origin. The representative should help the client to edit out material that is not relevant to the claim, but it is important for the declaration to convey a complete understanding of the situation in the client’s country of origin. Thus, even relatively minor incidents of discrimination and harassment, which would not rise to the level of persecution on their own, can be important to provide context for the incidents which led the client to flee their country of origin.
» Practice pointer: Details matter! It is very important to include as many details as possible in each incident described in the declaration. It is also important to break down generalities like, “I was called names throughout my childhood” to specific examples. The client can start with the generality, and then use specifics to illustrate the point, “For example, I remember once in third grade, I walked over to a game of soccer that the other boys were playing when one of them called me a ‘sissy’ and told me to go home and play with my dolls.”
The declaration must include all of the elements of a successful LGBTQ/H asylum claim: membership in a particular social group; past and/or well-founded fear of future persecution; and, if relevant, an exception to the one-year filing deadline. At a minimum, the declaration should hit on the key points discussed below.
17.1 Client’s Childhood
The client should describe how they were treated as a child by their family, peers, school, religious or other authorities because of actual or perceived LGBTQ/H identity. If they experienced problems, describe the who, what, where, when and why of the experiences and their effects on them. Although clients are often unaware of their sexual orientation or gender identity during their childhood, they may have already felt “different” or preferred the company or activities of the opposite sex. Often, LGBTQ/H children experience sexual abuse because adults sense their vulnerability and know that the child’s “difference” would lead to their being blamed if they reported the abuse.
17.2 Client’s Realization of Identity
The applicant should explain at what age and how they realized or came to understand their sexual orientation, gender identity and/or HIV status; what reactions this caused and why; what changes the client made in their life because of this realization or understanding. Remember that essential to proving an LGBTQ/H asylum claim is proving that the client actually is LGBTQ/H. One of the primary ways to prove this identity is through detailed written and verbal testimony about the client’s coming to terms with their identity.
17.3 Client’s Adolescence
The applicant should detail how they were treated as an adolescent by their family, peers, school, employer, religious or other groups or authorities like the police, military, etc. because of actual or perceived LGBTQ/H identity. If they experienced problems, describe the who, what, where, when and why of the experiences and their effects on the client. Adolescence is often the age at which individuals first begin to understand their sexual orientation and/or gender identity, so this period can be particularly important in LGBTQ/H cases.
17.4 Client’s Adulthood
The applicant should describe how they were treated as an adult by their family, peers, school, religious, employer or other groups or authorities like the police, military, etc. because of actual or perceived LGBTQ/H identity. If they experienced problems, describe the who, what, where, when and why of the experiences and their effects on the client. While problems directly at the hands of the government (such as the police or military) most clearly qualify as persecution, other problems the client experienced should also be included. This may mean include being gay-bashed, threatened by neighbors, fired from work, called names, or denied medical treatment. Even incidents which would not rise to the level of persecution individually may cumulatively be held to be persecution. If the client was mistreated by non-government actors, they must explain why they believe that the government would be unable or unwilling to protect them from these private actors.
17.5 Availability of Legal Protection for Client
It is important for the applicant to explain whether they reported any incidents of abuse to the police or other authorities. If they did not report the incident(s), they should explain why it would have been unsafe or impossible to do so. If the incident was reported, what were the effects of the report, if any, on the client or their family?
17.6 Client’s Knowledge of People Similarly Situated
The applicant should describe what they know about how other LGBTQ/H individuals in their country of origin have been or are being treated, and how they know this. Since the application is generally based at least in part on a well-founded fear of future persecution, treatment of other, similarly situated individuals is relevant to explaining the client’s fear of return. As with all aspects of the declaration, details matter. It’s better for the client to say, “I remember reading a newspaper article a couple of months before I left about a transgender woman who was killed in my city” than to say, “Everyone knows they kill transgender people in my country.”
17.7 Client’s Possible Delay in Departure after Abusive Experience
The applicant should explain whether and why, if persecuted in the past, they did not leave her country of origin immediately. Adjudicators may try to use a delay in departure to argue that the client suffered an isolated incident and that they lived in their country of origin safely afterwards. If the client did not leave immediately after an abusive experience, they should explain why and also explain what steps, if any, they took to avoid further harm while they were still living in their country of origin.
17.8 Event(s) Triggering or Culminating in Client’s Departure
The declaration should include what, if any, specific event or series of events led to their decision to leave their country of origin. For some applicants, the decision to flee from their country of origin may be the cumulative result of many incidents; for others, a single compelling incident may cause them to flee. If there was a particular incident that triggered the departure, this should be highlighted. It is especially important to focus on the triggering event if the client had traveled to the United States or other countries where they could have applied for asylum in the past but then returned to their country of origin. A specific triggering event (such as an incident with the police, or an attack on a friend) can be very important in explaining why, in spite of having willingly returned to their country of origin in the past, the client reached the decision that they had to flee their country of origin permanently.
17.9 Client’s Destination Choice
The applicant must explain why, when they decided to leave their country of origin, they did not opt to pursue: 1) relocation elsewhere in the country; 2) refugee status or relocation to another country, and/or; 3) immediate relocation to the United States.
17.10 Client’s Comparison between United States and the Country of Origin
The declaration should also include the client’s experience in the United States as an LGBTQ/H person and an explanation of how has it been different than in their country of origin (e.g., in the areas of employment, health care, social support, involvement in organizations or events for sexual minorities).
17.11 One-Year Filing Deadline
If the client missed the one year filing deadline, they should detail the “changed circumstances” that now make them eligible for asylum or the “extraordinary circumstances” which prevented them from timely filing. They should also explain why their current filing is within “a reasonable period of time” after the exception. If the client has filed late and cannot demonstrate an exception to the deadline, they cannot win asylum, so you should spend almost as much time developing this section of the declaration as you spend on the rest of the declaration.
17.12 Challenging Issues
If the client has any negative facts in their application, such as arrests, return trips to their country of origin, or a past opposite-sex marriage, it is important for them to fully explain the circumstances surrounding the negative facts. The adjudicator will hone in on the negatives, so it’s best for clients to head this off and explain themselves in their own words. See Section #11 for an in-depth discussion of challenging issues that commonly appear in LGBTQ/H asylum cases.
17.13 Client’s Specific Concerns over Return
What specifically does the client, as an LGBTQ/H individual, believe would happen to them if they had to return to their country of origin? Why does the client believe this to be true?
17.14 What Not to Include in the Declaration
Opponents of political asylum often argue that asylum seekers are abusing the U.S. immigration system, “cutting in line” in front of other immigration applicants, and really coming to the United States for economic opportunity. In fact, an asylum seeker may be influenced by several motives in coming to the United States While the declaration cannot contain any untruthful material, it is the representative’s job to help the applicant decide which information should not be included because it does not help the case.
Generally, any statements that the applicant wanted to come to the United States because they believed it was the land of opportunity, or that they could get a better job here, should not be included. If this is the applicant’s primary motivation, then they probably should not be seeking asylum. If, primarily, they fled their country of origin because of feared persecution and hope that their economic situation will also improve, this economic motivation information will not help their application.
Although, as discussed above, the applicant should give a detailed description of their “coming out” process and write about important relationships they had in their country of origin, they should not include graphic sexual detail. Such information is private and not relevant to the outcome of the case. Likewise, if an applicant has suffered sexual abuse or assault, it is important to include this information in the declaration in a manner that the reader can understand but which is not unnecessarily graphic. For example, it would be better to choose the phrase, “then the officer anally raped me” then to say “then the officer f***ed me up the a**.”
Avoid legal terms and conclusions. It is up to the adjudicator to determine whether or not the applicant suffered “past persecution” or has a “well-founded fear of future persecution.” Thus, the client should detail fear and harm that they have suffered or fear in the future, but should avoid drawing legal conclusions. It’s better to write, “I felt so scared and humiliated when the police officer beat me” than to write “I was persecuted by a police officer in my country.” The most important part of the declaration is to include a detailed statement of the applicant’s life in their country of origin and fears of returning to that country. Leave the legal conclusions to the adjudicator.
17.15 Translation Issues
If the applicant does not speak English you should include a certificate of translation. As a practical matter, if you only submit an English declaration, it’s unlikely that anyone will question why you have not included a certificate of translation, but best practice is to include a translation certificate.
You have two choices for submitting the translated declaration. One choice is to submit the final version of the declaration in the applicant’s native language along with an English translation. Another, less time-consuming, option is to submit the declaration in English only, along with a certificate of translation such as:
17.15.1 Sample Certification of Accurate Translation
I, Rita Garcia, hereby certify that I orally translated the attached affidavit into Spanish and read it to the affiant who indicated that he understood it and agreed with its contents. I further certify that I am competent in both English and Spanish to render and certify such translation.
Sworn to before me this 14th day
of September 2005
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.