ASYLUM ISSUESPRESENTERS: CHRIS ANDERS, PARKER, BUTTE & LANE, PCKRISTIN KYRKA, HIGUERA & VANDERHOEF PLLC

Practical strategies for preparing foran affirmative asylum interview.

1. Preliminary Tasks

ConfidentialityOath, fingerprint & photoWorking with an interpreter

Short, concise phrasesTalk to the officer, not the interpreterPause, watch the officer or interpreter for

signals

1. Preliminary Tasks

ConfidentialityOath, fingerprint & photoWorking with an interpreterNote-takingAttorney: confirm want her to be

representative

1. Preliminary TasksConfidentialityOath, fingerprint & photoWorking with an interpreterNote-takingAttorney: confirm want her to be

representativeTestimonial capacity (medications/illness)Preparation, affirm truthfulness of I-589

1. Preliminary Tasks: Background Questions

Prior visa applications (misrepresentation?)Travel to or residence in third countries

Firm ResettlementPossible terrorism screening

Part 1: Review I-589

Bio-dataEntry information, previous entriesDerivatives’ informationAddress, Education & Work History in

home countryParents & Siblings’ Information

Asylum applications by other family members

Dealing with a previously-filed I-589 when client is in proceedings

Amend the I-589 prior to the ICH (according to IJ preference)

Prepare client to address issues, inaccuracies, and inconsistencies on direct examination

Part 2: Fear of Return

“Why Are You Applying for Asylum?”Concise Summary of the Case“Elevator Speech”In the Applicant’s Own Words

Part 2: Fear of Return

Discuss Incidents of Harm in DetailAOs Seem to Want a Summary

Recounting of the FactsChronological OrderThe Five ‘Ws’ & H (but especially why)Give Appropriate Context

Preparation Strategies: How to Tell the Story in Immigration Court

Start with broad question, then hone in on specifics

Practice short answers and telling story chronologically

Practice different types of questions in several prep sessions

How to say “I don’t know” and “I don’t understand”

Nexus: Make sure the client knows the WHY

Advantages of A Detailed Declaration:Creates a Record to ‘Backstop’ a

Fairly Superficial InterviewGives Your Client a Study Guide

(where written in her own language)Seems to Channel the AO’s Questions

Detailed declaration: Considerations and DisadvantagesWhen less is more:Making sure your client will be able to

testify consistently with detailsMemory and/or mental health issues

Language of declaration and translator

Practical strategies for preparing forin-court testimony for a defensiveasylum case.

Advantages of A Courtroom PresentationDirect Examination Questioning

Allows for a Much Greater Attorney Role in Developing the Record

Advantages of A Courtroom PresentationDirect Examination Questioning

Allows for a Much Greater Attorney Role in Developing the Record

Facilitates Practicing Questions with Your Client in Advance

Advantages of A Courtroom PresentationDirect Examination Questioning Allows for

a Much Greater Attorney Role in Developing the Record

Facilitates Practicing Questions with Your Client in Advance

Allows Counsel to Anticipate Weak Points or Affirmatively Clarify Credibility Problems

Dis-Advantages of A Courtroom PresentationThe ICE Trial Attorney (cross-examination)The Immigration Judge (more cross-

examination)

Preparation Strategies: Addressing inconsistencesReview all prior statements by Respondent235(b)(1) Sworn statementCredible fear interview notesPrior applications and/or declarations

Ask client about inconsistences on direct examination

Preparation Strategies: Anticipating cross examinationReview your case for weaknesses to address

on direct:Inconsistencies and/or poor memoryFailure to report crimeAny return trips to home countryOne-year issue

Know your IJ / Trial attorneyPractice cross

Preparing for testimony for a clientwith mental health issues

Mental health in affirmative cases

Almost all asylum seekers will have experienced trauma that may affect their ability to present case.

Effects of trauma:Memory problemsCognitive issuesDecision-making ability

Legal Protections in Proceedings

Unrepresented Respondents: Assigned counsel under Franco-Gonzalez if detained and found incompetent

Represented and/or non-detained Respondents: Can request Judicial Competency Inquiry (JCI) for finding of incompetence

Step 1: Identify the Mental Health issueRed-flags: Prior diagnoses or MH treatment,

past trauma, memory issues, cognitive problems

Review medical recordsObtain psychological evaluation

DiagnosisTreatment recommendationsBarriers to reporting, testifying, assisting counsel

Step 2: Identify how issue may affect case prep and presentationMemory problemsCognitive issues Level of functioning under stressDecision-making ability

Step 3: Obtain finding of incompetence from IJRequest JCISubmit psychological evaluation, medical

records, and other supporting evidence to establish mental illness and incompetency

Prep your client for testimony

Step 4: Request safeguardsFigure out what will allow your client to

effectively present his or her caseWaive client’s testimony / Have someone else

testify on client’s behalfUse notes for testimonyRefresh client memory during testimonyLimit scope of testimonyAllow leading questionsAccommodations during testimony: Breaks,

seating

Other considerations

Consider psychologist as first witness to “set the stage” for client’s testimony.

Consider adding mental health-based asylum claim for serious MH conditions (schizophrenia, bipolar, personality disorders)

Think about MH-specific issues during prep

Preparing for testimony on aparticularly serious crime issue

Particularly serious crime: TestimonyTestimony:Consistency with police report / record of

convictionDiscuss during direct examinationAvoid bad facts not in the record

Particularly serious crime: Legal argumentSubmit briefing in advanceKnow relevant case lawBe prepared for “oral argument” on the

issue with the IJ