Maybe you've heard this old joke--

One night, a policeman sees a drunk man searching for something under a streetlight and asks what he has lost. The man says he lost his keys and they both look under the streetlight together. After a few minutes the policeman asks if the drunk is sure he lost the keys here. The drunk replies, no, he lost them in the park. Surprised, the policeman asks why he is searching here, and the drunk replies, "This is where the light is."

Asylum interviews these days remind me of this joke. We spend--literally--hours sifting through testimony and evidence, as the Officer goes on a fishing expedition for fraud, even in cases where it's quite clear that no fraud exists. Why is this happening? How can you prepare for these questions?

As you know, the Trump Administration was not a fan of asylum seekers. In September 2019, the long-time Director of the Asylum Division, John Lafferty, was ousted and replaced by Andrew Davidson, a career official who had run the fraud detection unit at USCIS (this, despite the fact that Mr. Lafferty had recently received a leadership award and was well-liked by agency staff--and by me). Since then, the Asylum Division has shifted its focus to look more closely for fraud.

In a sense, you can't blame the Asylum Division for the change. President Trump was elected largely on a restrictionist platform, and he repeatedly attacked asylum seekers as liars and fraudsters. So the Administration was basically doing what it was elected to do. Also, fraud is a problem in asylum cases. Even from an "insider's perspective" (to the extent I am an insider), it is difficult to know how much of a problem fraud presents, but clearly, it is a problem. Nevertheless, the approach taken by the Asylum Division to root out fraud seems largely ineffective and inefficient.

Given that the new procedures went into effect during the Trump Administration, you may be wondering why this is still an issue nine months after President Biden was sworn in. For one thing, Mr. Davidson (the fraud detection guy) is still running the Asylum Division. Since personnel = policy, the agency continues to work overtime to search for fraud--even in cases that are clearly not fraudulent. Also, my sense is that the Biden Administration has no great love for asylum seekers. They famously kept certain Trump-era restrictions in place at the border to limit the number of people able to request asylum, and they have not reversed a number of Trump Administration changes that make life for asylum seekers in the U.S. more difficult (for example, LIFO and burdensome EAD rules that apply only to asylum applicants).

Hopefully, the Biden Administration will revisit its policy towards fraud detection. Not because USCIS should not be looking for fraud, but because the search for fraud should be more targeted, and decided on a case-by-case basis. The current fraud detection procedures are more of a witch hunt, targeting all cases, including cases that are obviously not fraudulent. This wastes a lot of time, time that could--theoretically at least--be used to interview more applicants and possibly make some progress on the backlog. As of now, though, the fraud detectors are out in full force, and asylum seekers would do well to understand what this means for their cases.

The enhanced fraud detection protocols have added a number of new questions to almost all asylum interviews.

For example, one common question at the beginning of the interview is, "How did you prepare your asylum form and your asylum application?" What the Officer really wants to know here is whether the applicant is presenting her own story or whether the story was made up by someone and given to her. Follow up questions ask about how the application was prepared, who assisted, how the applicant knows the people who assisted, whether the form and application were read back to the applicant in a language she understands, etc. These questions would be relevant if there was a suspicion of fraud, or a reason to believe that something was amiss, but why are they relevant in all cases. Isn't it sufficient for most cases simply to make sure the applicant understands the contents of her application and affirms that everything is true and correct?

Officers also ask about how the applicant found his attorney: Who referred the attorney to the applicant? How did they meet? What language did the attorney and applicant communicate in? Again, I understand why these questions would be relevant if the Asylum Officer has reason to suspect the attorney of being a fraudster, but why are they relevant in most cases? What does it matter that you learned about the attorney from your cousin's friend? Or from an ad on the internet? If the attorney is suspect and USCIS is building a case against him, I can certainly see the point. But otherwise, this whole exercise seems to me a waste of time.

Officers also usually ask about the visa interview and application process. Did the applicant apply for a visa herself? Or did someone help her? Was everything in the visa process true and correct? You have to be careful about these questions because the Officer will have a copy of all your visa applications. If you lied on a visa application, now is the time to admit to that lie (better yet, you should provide an explanation for the lie in your written affidavit and include evidence if you have any). Since the Officers have the actual visa applications, it is easy for them to determine whether you did not tell the truth, and if you do not admit to the lie at the asylum interview, the Officer will likely use that to make an adverse credibility determination and (probably) deny the case. Admitting to the lie will not always solve the problem, but if you lied to get a visa in order to escape from harm in your country, that alone is not a sufficient basis to deny asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). For me, the problem with these questions is that applicants often do not remember their visa applications, and in some cases, the U.S. government perceives a lie where there is none. Also, I disagree with the basic premise that a person who lies on a visa application is also lying about the asylum application. If there are other credibility issues or reasons to suspect fraud, that is one thing, but misrepresentations on the visa application alone should not discredit an otherwise credible applicant.

Finally, Officers these days sometimes ask for social media handles. I wrote about this before, but presumably, they can look up your social media posts to see whether they contain anything inconsistent with your asylum claim. How much snooping they actually do, I do not know, but I have heard about one case where a gay man made a joke on Facebook about marrying a woman. This created a bureaucratic mess for the man until he finally convinced the Asylum Office that he is, in fact gay (which he is). The point being, social media contains all sorts of nonsense, and when Asylum Officers go mining for fraud, they need to be careful not to misinterpret harmless posts for something suspicious.

All in all, it seems to me that the Asylum Office's efforts to investigate fraud manage to take significant time, but accomplish little. "Fraud" questions should be reserved for cases where fraud is an actual possibility. The broad-based approach that involves questioning everyone, no matter how clearly legitimate their cases are, is adding to the backlog and taking resources away from cases where fraud may, in fact, exist.

Originally posted on the Asylumist: