12. Working with Asylum Seekers

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.

There is no doubt that the work an attorney does on an asylum application can mean the difference between a successful application and the client’s deportation. Vital as the attorney’s role is, however, it is ultimately the client’s story that will win or lose the case. In many ways, your most important job is to build a relationship of trust with your client so that they feel free to tell their entire story to you and, ultimately, to the adjudicator.

A client-centered approach differs from traditional lawyering by stressing the central role of the client in their relationship with the attorney, and the client’s active, intelligent participation in the preparation and representation of their claim. While not suspending a professional rapport, a client-centered approach encourages the attorney to consider the client’s circumstances from the client’s perspective and to respond to the client’s legal issues (and non-legal concerns when appropriate) with human care and compassion. This approach helps both you and your client work together in a partnership more effectively, thereby ensuring client satisfaction, high-quality legal services and even client empowerment. Client empowerment results not only when the client understands their relationship to the relevant law and its procedure, but when they assume a central role and responsibility in preparing the case. Through this approach, the client becomes a critical agent in the process and in the potentially successful outcome of the case.

There are additional considerations that both you and your client should be aware of when beginning to explore an asylum claim. Asylum-seekers can be experts in their own culture, language and education, and particular concerns related to their experiences and fears of persecution in their homelands: therefore, asylum-seekers can be valuable sources of information for the attorney. However, asylum-seekers’ unfamiliarity with the United States’ legal system, compounded with experiences they may have had in their home countries, also can challenge the development of client-attorney rapport. Asylum-seekers often mistrust the law and lawyers, especially when their countries’ legal systems are not independent and are riddled with corruption. Additionally, asylum-seekers may be unfamiliar with refugee law in the United States and its procedures. Given their intense fear of return and the possible psychological repercussions of their experiences, it is important that asylum-seekers and their attorneys understand how stress or trauma can affect asylum-seekers’ memory, testimony and demeanor during the proceedings, which can adversely impact their claims.

Through a client-centered approach, you and your client can build mutual trust, respect and understanding and, in turn, facilitate the client’s openness and cooperation with the legal representative. A client-centered approach can also assist LGBTQ/H immigrants who are unfamiliar with the grounds for asylum based and who may fear “coming out,” especially to a foreigner (let alone a legal professional). This reluctance is understandable given societal homophobia, biphobia, transphobia, HIV phobia and/or clients’ perceptions that their sexual orientation, gender identity, and/or HIV-positive status is private fact not for a legal representative and immigration authorities to know. Indeed, many asylum-seekers may erroneously believe that being LGBTQ/H could lead to a denial of their claim.

You therefore need to take affirmative steps to create a safe space to ensure that the client trusts you, and feels comfortable to discuss their sexual orientation, gender identity, and/or HIV status and related experiences in their homeland, and ensure their active participation in the case. There are certain methods that the attorney may use in interviewing, preparing and representing the client that provide for an effective demarcation of roles and a time-saving division of labor.

12.1 Recognizing and Respecting Client Individuality

An open, non-judgmental attitude that involves recognizing and respecting client individuality is the key to a successful relationship with LGBTQ/H clients through the proceedings, because sexual minorities include individuals as diverse as their non-LGBTQ/H counterparts. You should not make assumptions about your client’s experiences based merely on stereotypical profiles such as appearance, dress and physical features (e.g., gay men as effeminate and probably HIV-positive, lesbians as masculine). Questions laden with stereotypes or judgments not only might injure the client’s self-esteem but might inhibit the client from trusting and working with you. Common stereotypes to avoid include: that a person’s sexual orientation, gender identity, or HIV status is the central defining feature of their identity; that LGBTQ persons are promiscuous, lonely, self-hating people; that an LGBTQ person no longer practices or believes in their religion since most religions reject LGBTQ identities; that homosexuality is “caused” in men by overbearing, controlling mothers and absent fathers; that lesbians are trying to be men, or always dress in a masculine or androgynous manner; that an ostensibly “effeminate” character means that a gay man plays a “woman’s role” in a romantic relationship; that in order to define herself as transgender, a transgender individual must have had surgery or be contemplating medical interventions. Additionally, there is the negative assumption that a client is somehow self-hating when they are not completely “out” about his sexual orientation, gender identity, and/or HIV status to family, friends, employers, etc.

Regarding people living with HIV or AIDS, there are many judgmental assumptions about how they contracted HIV (e.g., that they contracted HIV through willful or reckless conduct); their celibacy (e.g., that they should be celibate now); medical treatment regimens (e.g., that they should be pursuing Western medical treatment and the protease inhibitor “cocktail”); social support needs (e.g., that they should be involved in individual or group therapy).

The diversity of how clients construct, understand and live their identities is the evidence that contradicts these stereotypes and judgmental perspectives. Through your conscious, close attention to your own communication and interaction with the client, you can evince an open, nonjudgmental attitude. This bolsters the client’s trust, confidence and cooperation with you through all stages of case preparation and representation.

12.2 Setting the Stage for Client Trust, Confidence and Candor in the Initial Consultation

It is important in the initial consultation for you to set the stage for client trust, confidence and truthfulness by explaining the format of the consultation and the respective roles of the client and the attorney. You should stress that the consultation is confidential and no information will leave the office or be revealed to anyone including immigration authorities without the client’s prior consent. You should also clearly caution the client that they must openly share all information in order for to represent them effectively. It is important that the client understands that you cannot assist them in putting forward anything that is untruthful in the application. Given your professional ethical responsibilities, you could face sanctions by immigration authorities, while the client could face deportation and the inability to obtain future immigration benefits in the United States if any aspect of their claim is fabricated (See Section # 3.5).

12.3 Brief Explanation of Asylum Law, Its Extended Eligibility to Socially Marginalized Groups and Its Requirements

If you are taking a pro bono asylum case that has been screened through a non-profit organization, an attorney at the non-profit will already have had one or more consultations with the client and will have explained the asylum application process. Nevertheless, immigration law is complicated, and an applicant may need to hear the same information several times before they fully understand it. You should therefore expect that the applicant may have basic questions about the asylum application process, and you should make every effort to understand the basics of the process before your first client meeting.

If the applicant asks you a question that you aren’t sure how to answer, you should never “guess” the answer, because if you are wrong, the client will be misinformed and may find it hard to trust your answers in the future. Instead, explain that you are new to this area of law, that you don’t know the answer right now, but you will research the question before your next meeting. The non-profit who referred the case to you may be able to answer your question easily or, in any event, should be able to steer you to the correct place to research the answer.

12.4 Overcoming Cultural Barriers

Even if you are an LGBTQ/H-identified person yourself, remember that your client may come from a culture that is entirely different from yours. Your client may have limited literacy abilities or may have never been in a city before coming to the United States. Try to keep an open mind when meeting with your client and remember potential cultural barriers in your understanding of the client’s experience. For example, your client may talk about their prior sexual experiences in sexual terms without seeming to express strong emotional attachment to someone they “dated” for a long time. It is best to suspend judgment in your early meetings, and after you and your client have become more comfortable together, you can gently ask them questions about their feelings. In some cultures, the possibility of having a long-term, same-sex relationship may be so taboo that it is difficult even for sexually active LGBTQ people to imagine the possibility of a true “partnership” with someone of the same sex.

Another area where you client may have difficulties is remembering dates. Clients frequently are not able to remember in what month – or even what year – an event happened. Since such gaps can create serious credibility problems, you may have to be creative about establishing a foundation for specific testimony. For example, occurrences may need to be tied to whether or not it was the rainy season or other events that the client can relate the occurrence to.

Another cultural barrier is the client’s natural reticence about answering questions fully and honestly. Often, a client’s only experiences in dealing with well-dressed interrogators sitting behind desks in business offices have been unpleasant and threatening. They may withhold information at first or may modify their story, or concoct one completely, based on their assumptions about what you want or expect to hear.

12.5 Dealing with Psychological and Medical Barriers

Finally, a more difficult and surprisingly prevalent problem may be the presence of psychological barriers, which make case preparation and presentation difficult. A substantial percentage of asylum seekers suffer from post-traumatic stress disorder (PTSD) or other psychiatric disturbances, such as depression or anxiety as a result of what they have witnessed or suffered in their home country.

From the lawyer’s point of view, these problems may manifest themselves in a variety of ways. For example:

  • The client may simply block out an entire traumatic event, or significant parts of one. The client may have witnessed or endured something that would clearly make them eligible for asylum but may be unable to testify about it in any credible fashion, or even remember it at all;
  • The client may be able to remember traumatic events and describe them to the attorney, but may find the experience so distasteful that they simply do not show up at the next appointment or resist efforts to go over the story again;
  • The client may display inappropriate behavior or affect while talking about things that happened to them. The most obvious and best-known example is the tendency of many people to relate horrifying events in a flat, seemingly emotionless voice; or
  • The client may be suffering from other problems, such as depression or substance abuse, related to or stemming from PTSD or other psychological condition.

It is often very helpful to the asylum-seeker to seek professional mental health assistance during the asylum application process. Even if the applicant never thought that they needed counseling in the past, you can explain to them what an emotionally draining experience it is to apply for asylum. If the applicant has severe memory problems or their affect during testimony is flat, it can be crucial to the claim to have an affidavit from a mental health expert explaining the psychological causes of the client’s difficulties in testifying.

If you are working with a client who is living with HIV, it is also important to understand that their HIV status may entail neurological impairments. Many HIV medications also have severe side effects and, again, it will be very important to have a letter from the applicant’s doctor if, for example, side effects of the HIV medication include loss of memory or ability to focus.

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.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.

Self-help asylum guides for LGBTQ and HIV-positive people without attorneys.


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