New York Lawyer's Legal Updates

Asylum Confidentiality: The Right and Its Breach

Author: Asylum Lawyer Alena Shautsova

Very often a decision to file an asylum claim is a difficult one. It is not because the person has not suffered persecution or lacks proof of his/her claim, but because the person is afraid that the information he / she shares with the government will be conveyed to his/her persecutors and the person will be harmed or otherwise disfavored either in the US or, if forced to return, home country. In addition, often, asylum seekers and his/her relatives maybe exposed to the life risks of the asylum claim becomes known to the persecutors. Also, not everybody would like to share with the world his/her traumatic experiences and suffer a danger and embarrassment of explaining him/herself on their account. That is why as a rule of International law asylum seekers enjoy a right of confidentiality.

Asylum process in the United States , as well as the fact that a person has filed for asylum are confidential. 8 C.F.R. § 208.6. It means that the government may not disclose to the third parties or the country of persecution the fact that a person filed for asylum and/or content of the asylum claim. The disclosure also covers inquiries by or on behalf of the government that may lead to the breach of the confidentiality.

There are a few, very limited situations when the disclosure is allowed. In 2005 Asylum Office Division issued an interoffice memorandum specifying these exceptions.

First, the information may be shared if a person who is filing for asylum, executed a waiver permitting the disclosure of the information. I myself am not aware of the examples of such waivers. The waiver is not attached to the I-589 form for asylum application. It is not “routinely offered” during the asylum process. It is presumed, however, for some public court proceedings or other public proceedings, an applicant may execute such a document.

Second, the discourse may occur due to the Secretary of Homeland Security’s specific authorization. (By operation of section 1512(d) of the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, 2310, the Attorney General’s authority under 8 C.F.R. § 208.6(a) to authorize disclosure of confidential asylum information held by the former Immigration and Naturalization Service (INS)—and now held by the Department of Homeland Security (DHS)—was transferred to the Secretary of DHS.)

In the absence of the asylum applicant’s written consent or the Secretary of Homeland Security’s specific authorization, disclosure may be made only to United States government officials or contractors and United States federal or state courts on a need to know basis related to certain administrative, law enforcement, and civil actions:

  1. Any United States Government official or contractor having a need to examine information in connection with:
    • (i) The adjudication of asylum applications;
    • (ii) The consideration of a request for a credible fear or reasonable fear interview, or a credible fear or reasonable fear review;
    • (iii) The defense of any legal action arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear determination or reasonable fear determination under § 208.30 or § 208.31;
    • (iv) The defense of any legal action of which the asylum application, credible fear determination, or reasonable fear determination is a part; or
    • (v) Any United States Government investigation concerning any criminal or civil matter; or
  2. Any Federal, State, or local court in the United States considering any legal action:
    • (i) Arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear or reasonable fear determination under § 208.30 or § 208.31; or (ii) Arising from the proceedings of which the asylum application, credible fear determination, or reasonable fear determination is a part.

It seems like “exceptions” to the confidentiality effectively negate the right to confidentiality, at least within the US, because “any State of Federal or local court civil action” exception, if construed broadly, may include a dispute over something as insignificant as a parking violation.

Further, according to the aforementioned memorandum, when the government disclosed the confidential information to a third party, that third party has the same confidentiality obligations as the government. Moreover, during the disclosure, the government must alert the third part of its obligations.

The regulation also states that the USCIS may not share the protected information with the foreign governments:

Asylum-related information cannot be shared with foreign governments or international organizations without the written consent of the asylum applicant, except at the discretion of the Secretary of Homeland Security. To date, the Secretary has exercised his discretion to permit regular sharing of asylum-related information with a foreign government only with respect to Canada. The arrangement is in the form of a Statement of Mutual U Sharing (SMU) and an Annex to the SMU, which together permit Canada’s Department of Citizenship and Immigration Canada (CIC) and USCIS to exchange asylum-related records on both a case-by-case and systematic basis.

The policy sounds very nice on paper. But does it really work and are there instances when the government violates its obligation to guard the asylum applicant’s confidentiality?

Yes, there are in fact many such instances. Very often it happens when USCIS conducts its own investigation as to the veracity of the applicant’s claims by submitting request to authenticate documents to the country of persecution (such as birth/death certificates). Sometimes, it may, allegedly, share the whole asylum claim with the country of persecution. See Dayo v. Holder, No. 11–60524, (5t Cir. 2012).

After this, as a rule, USCIS argues that its actions did not lead to the breach of confidentiality like in La v. Holder, 12/13/12 See our asylum library, or that they “did not do it,” like in Dayo. However, it seems that very often, not-so-careful investigation in fact leads the persecutor to one possible conclusion: that the subject of inquiry filed for asylum. The harm from such reckless investigations is irreparable, and the victim must have a proper recourse.

What is the recourse available to todays’ victim of asylum confidentiality breach?

Apparently, not much. First, as recognized in Dayo, breach might serve a separate basis for new asylum claim. The court rejected the automatic reversal of the denial theory, stating instead, that a new claim for asylum must be filed. While this approach, is certainly, one of the ways to resolve a situation, an evidentiary hearing on the subject, would seem to be more appropriate. It will allow unclutter the asylum divisions with the new claim and will limit the issue to a simple question: whether or not the claimant’s rights were violated. If yes, the recourse must be grant of the asylum claim and possibly damages.

Second, it seems that a victim should enjoy the right to bring a civil right action in Federal court under the 1983 Section. Many applicants are focused on the Immigration side of the question, and often fail to consult with the Civil Rights attorneys as to the possibility of recourse when their lives are put in danger.

To sum the things up, the right to confidentially seems to be just that: a right; without real consequences for those who sometimes so carelessly and easy violate it, but with a possibility of receiving an asylum based on the fact of the breach.

04 September 2013
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