Declaration Dos and Don’ts
- Assist the applicant to shape their declaration. Some attorneys feel like since the declaration is the applicant’s own story, it should be submitted to DHS in exactly the form that applicant first writes it. The declaration is in many ways the most important part of the asylum application. This is where the attorney can play the biggest role, working with the applicant to draw out important details and explaining why other details are not relevant and best left out.
- Organize the declaration chronologically and/or thematically. Include bold point headings to make it easier for the reader to locate relevant sections of the declaration.
- Include dates whenever possible. Of course the applicant won’t remember the exact date of an incident which happened many years ago, but they may remember that the incident happened during a particular season or while in a particular grade at school. The more specific the information, the more believable the story. Dates also make it easier for the adjudicator to read and follow the storyline.
- Include detailed information about the applicant’s “coming out” experience. Before the adjudicator will determine whether or not the applicant has suffered or will suffer persecution, the adjudicator must decide whether or not they believe that the applicant actually is LGBTQ/H-identified. The best way to prove this is through detailed accounts of the applicant’s feelings about being LGBTQ/H, their first romantic relationships with a member of the same sex (if applicable), their first serious relationship (if applicable), etc. It is not necessary or appropriate to include graphically sexual information in this section (though it may be appropriate to do so in sections of the declaration describing incidents in which the applicant was raped or sexually abused).
- Include detailed accounts of specific examples of mistreatment that the applicant suffered. While it’s okay for the applicant to make broad statements like “the police attacked me many times,” it is critical to the claim for the applicant to provide detailed accounts of exactly what happened. This means including the who, what, and when of each incident that’s relevant to the claim. The incidents of past mistreatment are the heart of the claim, and it is the details of each incident which make the application come alive.
- Include detailed accounts of specific examples of mistreatment that people the applicant knew/knows suffered. An asylum application is based on past persecution and/or fear of future persecution. Thus, if an applicant’s former partner, neighbor, or co-worker is gay-bashed or wrongfully arrested, it’s important to detail what happened and the reason this increased the applicant’s fear.
- Include enough information about the applicant’s life to tell their story completely. While the focus of the declaration should be on the harm and fear of harm the applicant faces, the declaration should also include enough information about the applicant’s life to tell their story completely. This should include: where they lived, where they attended school or worked, whether they had a partner, how their relationship was with their family, etc.
- Address difficult issues head-on. Asylum adjudicators are trained to spot issues which affect the outcome of the case, so don’t hope that if you leave a tough issue out of the declaration the adjudicator won’t notice it. If the applicant was previously married, made many return trips to their country of origin, has an arrest for shoplifting, etc., then the declaration presents an opportunity for them to explain fully why they did what they did in the past and why they should still be eligible for asylum.
- Use language that applicants would not use themselves. Avoid legalese, legal conclusions, idiomatic expressions, or words that are not in the applicant’s vocabulary. Although it’s an attorney’s job to help draft the declaration, you don’t want the adjudicator to question the applicant about a phrase in the declaration which the applicant clearly doesn’t understand. On the other hand, if the applicant’s English is less than perfect, you should not write the declaration in broken English. Just try to keep the language simple.
- Draw legal conclusions. Describe the harm the applicant suffered and the harm they fear in the future, but avoid drawing legal conclusions (this is your job as an attorney writing a brief, and the job of the adjudicator in coming to a decision, but not the job of the applicant in relating the facts of her case). Thus, it’s better to say something like, “The first time the police detained me was … ” than to draw the legal conclusion with “The first time I was persecuted by the police was …”
- Include economic motivations to come to the United States. When an asylum-seeker leaves their country, there may be many reasons that they choose to come to the United States. The hope of greater economic opportunity may be one such reason, but this is not something to highlight in the applicant’s declaration. Many asylum adjudicators fear that asylum applicants are really only seeking asylum for economic reasons, and there’s no reason to draw attention to this fear. If economic opportunity is the primary reason the individual wants to stay in the United States, they probably shouldn’t be applying for asylum.
- Include anything that is untrue. Your client may have friends who have won asylum and been encouraged by unscrupulous lawyers or notarios to embellish their stories or make up a claim. There is no more serious wrong in immigration law than intentionally fabricating information in an asylum claim. Be sure your client knows and understands this. See Section # 3.5 on frivolous applications.
- Include information that doesn’t make sense to you just because your client insists it’s true. If something sounds implausible to you, it will almost certainly sound implausible to the adjudicator. Work with your client to understand what happened and to reach a point where you understand the incident.
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.