Detailed Table of Contents

17 The Application Process – Preparing the Asylum Declaration

Every application for asylum should include a declaration, or narrative from the client, detailing her experiences in her country, reasons for fleeing, and reasons that she fears returning.  This document is the single most important component of the written asylum application because it allows the client to tell her story completely and, as much as possible, in her own words.

It is often advisable 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 his country.  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.  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 a context for the incidents which led the client to flee his country. 

» 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 LGBT/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 she was treated as a child by her family, peers, school, religious or other authorities because of actual or perceived LGBT/H identity.  If she experienced problems, describe the who, what, where, when and why of the experiences and their effects on her.  Although clients are often unaware of their sexual orientation or transgender identity during their childhood, they may have already felt “different” or preferred the company or activities of the opposite sex.  Often LGBT/H children experience sexual abuse because adults sense their vulnerability and know that the child’s “difference” would lead to her being blamed if she reported the abuse.

17.2 Client’s Realization of Identity

The applicant should explain at what age and how he realized his different sexual orientation, transgender identity or HIV-positive status; what reactions this caused him and why; what changes the client made in his life because of this identity.  Remember that essential to proving an LGBT/H asylum claim is proving that the client actually is LGBT/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 his identity.

17.3 Client’s Adolescence 

The applicant should detail how he was treated as an adolescent by his family, peers, school, employer, religious or other groups or authorities like the police, military, etc. because of actual or perceived LGBT/H identity.  If he experienced problems, describe the who, what, where, when and why of the experiences and their effects on him.  Adolescence is often the age at which individuals first begin to understand their sexuality and gender identity, so this period can be particularly important in LGBT/H cases.

17.4 Client’s Adulthood     

The applicant should describe how she was treated as an adult by her family, peers, school, religious, employer or other groups or authorities like the police, military, etc. because of actual or perceived LGBT/H identity.  If she 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, she must explain why she believes that the government would be unable or unwilling to protect her from these private actors.

17.5 Availability of Legal Protection for Client

It is important for the applicant to explain whether he reported any incidents of abuse to the police or other authorities.  If he did not report the incident(s), he 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 his family.

17.6 Client’s Knowledge of People Similarly Situated 

The applicant should describe what she knows about how other LGBT/H individuals in her country have been or are being treated and how she knows 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, she did not leave her country immediately.  Adjudicators may try to use a delay in departure to argue that the client suffered an isolated incident and that she lived in her country safely afterwards.  If the client did not leave immediately after an abusive experience, she should explain why and also explain what steps, if any, she took to avoid further harm while she was still living in her country.

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 his decision to  leave his country.  For some applicants the decision to flee from their country 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 he could have applied for asylum in the past and then returned to his country.  A specific triggering event (such as an incident with the police, or attack on a friend) can be very important in explaining why, in spite of having willingly returned to his home country in the past, the client reached the decision that he had to flee his country permanently.

17.9 Client’s Destination Choice

The applicant must explain why when she decided to leave her country, she 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 Home Country 

The declaration should also include the client’s experience in the United States as an LGBT/H person and an explanation of how has it been different than in his country (e.g. in the areas of employment, health care, social support, involvement in organizations or events for sexual minorities/people with HIV/AIDS).

17.11 One Year Filing Deadline 

If the client missed the one year filing deadline, she should detail the “changed circumstances” which now make her eligible for asylum or the “extraordinary circumstances” which prevented her from timely filing.  She should also explain why her 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, she 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 Thorny Issues

If the client has any negative facts in his application, such as arrests, return trips to his country, or a past opposite sex marriage, it is important for him to fully explain the circumstances surrounding the negative facts.  The adjudicator will hone in on the negatives, so it’s best for the client to head this off and explain himself in his own words.  See Section # 11 for an in depth discussion of common thorny issues in LGBT/H asylum cases.

17.13 Client’s Specific Concerns over Return

What specifically does the client as an LGBT/H individual believe would happen to her if she had to return to her country.  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 she believed it was the land of opportunity or that she could get a better job here, should not be included.  If this is the applicant’s primary motivation, then she probably should not be seeking asylum.  If, primarily, she fled her country because of feared persecution and hopes that her economic situation will also improve, this economic motivation information will not help her application.

Although, as discussed above, the applicant should give a detailed description of his “coming out” process and write about important relationships he had in his country, he 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 she has suffered or fears 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 beating in my country.”  The most important part of the declaration is to include a detailed statement of the applicant’s life in her country and fears of returning.  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.

                                                                     
 Rita Garcia

Sworn to before me this  14th day
of September 2005

_________________________________
  Notary Public

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.