GETTING LEGAL HELP
Because asylum law is confusing and because everything an applicant says or gives to the DHS may become a part of her or his asylum record, it is strongly encouraged that an applicant talk to a lawyer before sending anything to DHS. If the one year filing deadline for asylum is coming up or has already passed, the applicant should get legal help immediately.
Applicants should be aware that some people who say they are immigration experts are not experts and may not even be lawyers. Sometimes asylum applicants will pay a notario or paralegal to help them apply for asylum. Using these kinds of services is often a mistake. Many times these people can ruin a person's chances for asylum. If you want to use one of these businesses or think you were harmed by one of them, call the Immigrant Legal Resource Center's Anti-Fraud Unit at (415) 255-9499, extension 774.
The most important thing a person can do for his or her attorney is to be as honest as possible. If an applicant meets with someone from the Immigrant Legal Resource Center's Asylum Program or hires a private lawyer on his or her own, anything he or she says to that lawyer is confidential. That means that this lawyer is not allowed to tell this information to the U.S. government or to anyone else without the permission of the applicant. Speaking with an attorney is also a good way to calm fears about the risk of applying for asylum. It is very helpful for an applicant to collect documents for the case. Some helpful documents include pictures from when the applicant lived in his or her home country, a birth certificate or identity card, and letters from relatives or friends that will help prove the case. These documents are not necessary, but can be helpful. The Immigrant Legal Resource Center's Asylum Program is a good resource for obtaining “country packets.” These packets contain information about different countries’ persecution of people based on sexual orientation and/or HIV status.
ASYLUM PRACTICAL POINTERS1
• Do define the particular social group by an immutable and unchangeable characteristic or a characteristic that members should not be compelled to change. Do not define a particular social group by the harm experienced or feared.
• Address decisions that require social visibility of the group and particularity of the group as a discrete class of persons in that society.
• Present evidence of membership within the particular social group.
• Raise more than one particular social group if supported by the facts or in combination with other grounds.
• Clearly articulate the theory of your claim and make sure to address every element:
(1) Present evidence of past persecution or fears of persecution. Document the harm, provide evidence of the severity, present evidence of any gender-specific types of persecution.
(2)If the government is not the persecutor, present evidence to demonstrate a failure of state or police protection. Present evidence of discriminatory laws and if the laws appear to provide protection, show how they are inadequately enforced.
• Present evidence, either direct or circumstantial, of the nexus between the harm and the particular social group or other grounds. This includes any and all evidence that the persecutor or persecution is motivated based on membership in a particular social group or protected category.
Tips for Intersex Clients
Anne Tamar-Mattis, Executive Director of Advocates for Informed Choice, offers some pointers on dealing with cases of intersex individuals:
• Chromosome patterns are not determinant in any way. Avoid creating precedent that uses sex as marker or chromosome marker i.e. state that client has Y chromosome and is male, but not because of the Y chromosome.
• Be aware that there is a longstanding practice of lying to intersex individuals so they may not be aware of their own chromosome patterns, absent a medical test.
• An intersex person is not necessarily transgender and may not struggle with gender identity.
• Try to cast a wider net when defining the persecution such as persecution due to birth defects or giving birth to a child with birth defects.
Nancy Kelly, Women As A Social Group, Immigration Practice Pointers, American Immigration Lawyers Association, 2011-12 Ed. ↩