Abstract

Excerpted From: Jacqueline Marie Brown, Fact-finding Is an Immigration Lawyer's Job: the Importance of Working One-on-one with Clients in Asylum Cases, 59 University of San Francisco Law Review 417 (2025) (115 Footnotes) (Full Document)

Often, the most crucial part of an asylum seeker's case, fact-finding, is delegated to legal assistants and paralegals. However, this Article shows why that is a serious mistake. Declaration writing and gathering country conditions evidence are essential parts of an asylum claim, and they are precisely the tasks that should be handled by an asylum seeker's lawyer. The declaration tells the story of the asylum seeker's life, while country conditions evidence provides the context of where an asylum seeker has come from and where they cannot return.

Both declarations and country conditions evidence are intricately related to the legal argument. It is the attorney who is hired to understand the intricacies and ever-changing landscape of asylum law. It is the attorney who must know the story of their client, including the details, possible gaps and inconsistencies, and even more vitally, how these facts match up with the definition of a refugee.

Asylum seekers must tell their story in order to obtain asylum, and that story must be truthful and deemed credible. Considering that credibility is the gatekeeper in asylum cases, this information must be learned before an adjudicator and government attorney appear in the case. Further, with asylum grant rates that vary wildly in immigration court, an attorney should be gathering facts to make a strong record for appeal. Finally, and equally important, the client who bounces around from attorney to legal assistant or translator and back is also being needlessly retraumatized in the process of legal representation.

The approach I advocate for is a trauma-informed, client-centered one that is respectful of the client's cultural experiences. In Part I, I describe how a trauma-informed, client-centered approach benefits not only clients seeking asylum but also immigration lawyers and the immigration legal system. This approach has evolved not only from my twenty years of experience representing asylum seekers and supervising clinical students but also from working for the immigration court and observing other advocates. The approach flows from a rebellious lawyering philosophy.

Part II reviews the mechanics of applying for asylum and the substantive arguments that must be made to provide eligibility. It explains the importance of credibility and how fact gathering, including corroborating country conditions evidence research, needs to be taken seriously by immigration attorneys because of the connection between fact-finding and proving one meets the definition of a refugee. I also critique approaches that fail to do this, which are apparent from reported and unreported cases.

In Part III, I provide examples of how I have put this client-centered, trauma-informed approach to use and also show how the opposite approach can make an asylum grant impossible.

Part IV concludes with a call to immigration attorneys to consider combating the demonization of asylum seekers as part of their ethical duty when representing asylum seekers. At the very least, immigration attorneys should not be contributing to the inhumanity of the U.S. asylum system.

[. . .]

It is often said that being present is the ultimate way to demonstrate care for someone. In asylum law, this adage rings no less true, and I assert that it is a healthier way to practice the law. As described above, attorneys will undoubtedly know their clients' stories better so they can help them meet their burden in proving they meet the definition of a refugee and merit an asylum grant. In the case of a denial, attorneys will still have been a true advocate for their clients, and they will have felt it, not to be underestimated in an era when it is more common to hear, “go back to where you came from.” Finally, as human beings, attorneys will have connected with another human being on a deeper level, one where both the client and attorney receive a glimpse into humanity that is difficult to describe. When all the complications related to globalization and geopolitics, legacies of colonialism, stubborn racism, and rapidly eroding protections for asylum seekers can feel overwhelming, attorneys may feel a sense of ease--they have one person, one client, in front of them. When attorneys are truly present with their client while they are working with them, the rest of the chaos and tremendous feelings of responsibility disappear for those moments in time.

Associate Professor of Law and Director of the Immigration & Deportation Defense Clinic, University of San Francisco School of Law.