The State of Asylum Representation: Ideas for Change

The plight of refugees-those who flee persecution-touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum seekers on their own to present their claims when only experts understand how the process works and what the case law means? Asylum applicants often have escaped life threatening situations in their home countries and have overcome financial and physical obstacles to reach the United States, only to be faced with a daunting and confusing asylum application process. Legal assistance is permitted, but it must be at no expense to the government. While some asylum seekers find competent representation, many do not. Most of the key players in the U.S. asylum process-the representatives, the Immigration and Naturalization Service ( INS ) trial attorneys, the Asylum Officers and the Immigration Judges– believe that representation makes a difference for those seeking relief and for the effectiveness of the system. Immigration Court data indicates that represented asylum cases are four to six times more likely to succeed than pro se ones. The time has come to develop ways for all asylum seekers to have the type of legal assistance needed to more fully ensure that bona fide refugees receive the protection that the U.S. public wants to give them and that our laws require. Despite the importance of legal representation, there has yet to be a systematic evaluation of the effectiveness of the current delivery mechanisms in place to aid those in need of legal services and the effect of representation on the asylum system in general. This paper examines the state of affairs with regard to asylum representation and attempts to understand better the barriers to representation. It also begins to assess the effects of representation on asylum seekers and the asylum system itself, and to analyze the various ways in which the representation system can be improved