Preparing an asylum case is a bit like building a fortress. You make the walls as strong as you can, re-enforce weak points, and hope for the best. It's the job of the Asylum Officer, the DHS attorney (the prosecutor), and the Immigration Judge to probe for weaknesses and, where appropriate, break down the defenses. If they succeed, you lose your case. So here's my theory: An adjudicator who wants to deny asylum can deny asylum. Some cases may be harder to deny than others, but a smart decision-maker can punch holes in even the strongest and most well-prepared asylum case.

In my own practice, I recently lost a case where the Immigration Judge meticulously deconstructed the asylum claim in order to deny relief. This was one of those cases that some IJs would have granted, and others would have denied. It so happens that our IJ has a 93.5% asylum denial rate, and so the odds of success were always pretty slim. But the decision got me thinking about how judges and Asylum Officers decide cases, and about whether I can do more to prevent future losses.

My client is from Central America. Gang members murdered her husband and tried to kill her sons. The sons defended themselves and killed two gang members in the process. One of the sons was initially arrested, but was ultimately released after a court found that he acted in self defense. Gang members then threatened my client and other family members. In the face of these ongoing threats, my client and her family fled the country and came to the United States to seek asylum.

In my opinion, our case was pretty strong. We had a decent argument that gang members were targeting the entire family (for our "particular social group") and that there was past persecution (credible death threats combined with harm to the family). We also had a fair amount of evidence, including a couple police reports, death certificates, and a news article about the son killing two gang members. In addition, we had numerous witness letters and a ton of helpful country-condition evidence (explaining the dire situation in my client's homeland, including that gang members are ubiquitous throughout the country and that the government does not have the capacity to protect its citizens).

Despite all this, I was not feeling particularly good about our court hearing, mostly due to that 93.5% figure. It struck me as particularly unfortunately, since earlier on, the case had been assigned to a different IJ, with only a 21.2% denial rate. So you can imagine that we might have had a different result with a different judge. In any event, we have no control over which IJ hears the case, and as they say, "You get what you get and you don't get upset."

In reaching his decision, our IJ was very thorough, and I have no doubt that he is very smart. Although he found my client credible, he felt that she was either lacking information or not telling the whole story, and so her credible testimony only got us so far. In examining our evidence, the IJ noted what we had submitted, and then explained what was missing. For example, although we had some documentation (from the police and the newspaper) about the son killing gang members in self defense, my client was not able to get court documents from that case. Finally, the IJ refuted our legal arguments and found that our client had not suffered past persecution based on a protected ground, that the government could protect her (or at least was making an effort to protect her), and that internal relocation was possible.

In other words, despite all our evidence, credible testimony, and a lengthy legal brief, the IJ examined each aspect of the case and found it lacking (on the plus side, the IJ did find our client credible, which is better than the alternative). The purpose of this detailed analysis, of course, is to increase the likelihood that the IJ's decision will survive on appeal.

So what could we have done differently? I suppose I could have advised the client to move to a different state, in the hope that she would get an "easier" judge. But that is disruptive and expensive, and there is no guarantee that she would do much better. We could have pressed the client harder to get more evidence. But there are limits to what evidence a client can obtain (though perhaps if my client could have afforded to hire a lawyer in her country, she might have been able to get court records). Further, I fear that if we got three pieces of evidence, the judge would have asked for a fourth. If we got four pieces of evidence, he would have required five, and so on. The problem is, no matter what we do, it is always possible to do more. Also, the fact is, asylum seekers and their lawyers have limited time and resources, and so we often aim for "good enough" rather than perfect. Unfortunately, "good enough" for one decisionmaker may not be good enough for another, and "perfect" is probably never achievable.

While it is tempting to give up hope, particularly with certain adjudicators who seem determined to deny asylum, some cases are being approved (6.5% of them in our IJ's case). Also, there is still the appeals process and--potentially--review by a federal court. These paths can sometimes be used to overturn erroneous IJ decisions, but they are long and often expensive, and so not an option for many asylum seekers. It is also generally easier to win in court than on appeal, and so it is best to present the strongest case you can to the judge. This means double checking for consistency and working hard to gather as much evidence as possible.

In the end, though, adjudicators can find a way to deny almost any case. Even the strongest fortress has its weak points. What adjudicators hopefully understand is that the law does not require an unassailable case (indeed, the "well founded fear" standard for asylum is a fairly low bar). Given all the limits on asylum seekers (and their attorneys), a "good enough" case should be good enough for an approval. Decision-makers should keep these limits in mind when evaluating asylum cases. They should not destroy asylum cases simply because they can. In this way, legitimate asylum seekers can obtain the protection that they deserve.

Originally posted on the Asylumist: www.Asyulmist.com