Help Wanted
Fleeing torture and death threats in their home countries, asylum seekers face a rocky road to freedom in the U.S.
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In reality, it’s much more difficult. For starters, many who arrive in the U.S. know their paperwork isn’t legitimate, so they slip through at the airport or dock and don’t begin the process of applying for asylum for fear of being detained or deported. The U.S. does allow people who are in the country without proper paperwork to apply for asylum, but since the Illegal Immigraion Reform and Immigrant Responsibility Act passed in 1996, the deadline for applying is one year. If you didn’t file for asylum within a year of entering the country—no matter if you were sitting in a county jail for six or eight or nine months with no one to help you—your case could be denied.
“Some people don’t know they can apply for asylum. Or they are focusing on getting into a safe place and trying to function. It’s just overwhelming, especially for those who don’t speak English,” says Magner.
The process for “proving” your worthiness for political asylum is also difficult, especially the burden of proof. For example, Win and Ngwe didn’t have photos of their political activities or documents proving their political activities or time spent in Burmese jail. They didn’t have scars from being tortured, even though Win spent seven months in Burmese prison and says everyone in jail is tortured, starting with a crack on the back of the head when you first enter the front door of the prison and on to beatings with wooden sticks, shin rollers and freezing isolation chambers. The couple just knew they would be jailed and tortured if they returned. They say those who try to seek asylum and are denied, face a minimum seven-year jail sentence if they return to Burma.
In 2005, the process got even more difficult with the passage of the federal RealID Act, a response to 9/11 that requires, in part, that asylum seekers reach a much higher burden of proof. Real ID says asylum seekers need to show hard documentation that they were persecuted and documents like medical records, marriage certificates and death certificates. In other words, if your government tortured you, you better have a note from them admitting it.
O’Leary says that RealID can make a legitimate case impossible to win. “For example, a student activist in a country says he was picked up and detained and he was with his cousin at the time, then [the judge will ask], ‘Why don’t you have a letter from your cousin?’” she says. But someone who fled in the middle of the night doesn’t have time to search the family files, and many are unwilling to ask for family members in their home country to send their information to the U.S., knowing what the government can do to anyone they feel is a threat or supports its enemies.
“It’s horrible. You left to save your life. You don’t have photos. You don’t have a paper proving what happened,” says Andrea Paz, who fled Guatemala in 1985 after her husband was tortured and killed. “We waited years and years for asylum. The only proof I had was that my children didn’t have their father. But for them (the judges) it wasn’t proof.” It took 11 years for Paz and her two children to be granted asylum.
Judges and the immigration service in general often doesn’t believe people because of problems with people fabricating asylum claims, O’Leary says. However, she says what officials see as evidence of lying is really because asylum seekers don’t understand why certain facts are significant, such as exactly what their prison cell walls were made of or how their hands were tied when they were tortured.
Asylum seekers who have been tortured by their government or thugs under its control often do have scars as gruesome evidence to prove their asylum case. But asylum seekers who have been tortured often have a different problem, an inability to tell the story of what happened to them coherently. “They’re an emotional mess,” O’Leary says. “Where were you, where were your hands, were they up, were they behind your back, were they tied, what were they tied with, were your eyes covered, what could you see, what could you smell, what could you hear. Were the walls of the cell brick or were they metal or were they wood. They literally have to be back in that moment in their head. If people are not prepared for that, they block it out and can’t go there.”
“Our legal system requires someone to tell in a sequential, accurate, and detailed and organized fashion what happened to them,” says Fabri. “And if they have post traumatic stress disorder, that’s the last thing they want to do because of their symptoms.”
