by Jan Ting
The world has been following the story of Nafissatou Diallo, a hotel housekeeper in New York, who claims she was raped by Dominique Strauss-Kahn, then the head of the International Monetary Fund and thought to be a likely future president of France. How did Ms. Diallo, who was born in West Africa, come to be working in New York? Apparently, the illegal immigrant was able to obtain legal status in the U.S. by concocting a totally false story about being raped in her home country of Guinea.
While the U.S. has numerical limits on the numbers of legal immigrants it admits every year, it has no numerical limit on the number of refugees it accepts every year on the basis of their claim for asylum because they face persecution in their home country. Illegal immigrants, once they enter the U.S. either illegally or by overstaying a temporary visa, have a strong incentive to lie in making an asylum claim in order to obtain permanent legal status, which is a requirement for becoming a U.S. citizen.
Asylum claims are currently ruled upon either by officers of the Department of Homeland Security or by immigration judges of the Department of Justice in the course of deportation proceedings. If the story is found to be credible and convincing, and to meet the legal standard of a well-founded fear of persecution on account of race, religion, nationality, social group, or political opinion, and if the storyteller has not been convicted of a crime, the request for legal permanent residence in the U.S. on grounds of asylum is usually granted.
Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.
Ms. Diallo is not the only successful asylum claimant whose lies are subsequently exposed. Back in 1999 another African immigrant named Amadou Diallo died as the result of police gunfire, and was discovered to have made numerous false claims to gain asylum in the United States. Diallo had claimed to be an orphan whose parents were murdered, though his parents showed up at his funeral, and he claimed to be Mauritanian, though he was actually from Mali.
While many are believed to obtain legal asylum status by lying, most go on to eventually become U.S. citizens, and the lies they tell to get status are never uncovered.
There’s no simple solution to the false asylum claims, but I think adjudication of asylum claims should be removed from the Departments of Homeland Security and Justice, and returned to the Department of State whose foreign service officers are best informed of actual conditions in various foreign countries, and therefore most likely to detect false stories and recognize the truth.
Adjudication of asylum claims was taken away from the Department of State because during the Reagan administration, that department was thought to favor asylum claims from countries whose governments the administration opposed, like Nicaragua, and to reject asylum claims from countries whose governments the administration supported, like El Salvador and Guatemala.
But the reality is there are always going to be political pressures on these decisions, and there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice. So I think we might as well put adjudication back in the hands of the diplomats we trust to represent us in foreign countries, who have first-hand experience in those countries, and who study their languages and cultures. I also think the Department of State is best able to additionally consider the best interests of the United States in adjudication of asylum claims.
Something needs to be done to reduce the amount of immigration fraud being committed against the United States, its people and its laws.
Jan Ting is a Professor of Law at Temple University’s Beasley School of Law and a former Assistant Commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Jan can be reached at email@example.com.