Confidentiality of Asylum Applications at Risk

21 May

If the internet is good for anything, it is exposing a person to articles and information one ordinarily would not encounter.  So it was when I stumbled across this article on Fox News Latino.  The article discusses the Mexican government’s statement that Gaston Azcarraga, the former owner of the defunct Mexicana Airlines was in the Unit109-mexicana-airlinesed States and seeking asylum.  At BR, we know nothing about Mr. Azcarraga’s claim to asylum or whether it is likely to succeed.  But we do know that asylum applications are supposed to be confidential and that it is particularly important that a claim to asylum not be revealed to the government of the country where the applicant fears persecution.  To see a Mexican government official state that an Mexican national is seeking asylum in the United States is inimical to the entire concept of asylum and undermines the trust in the asylum system that confidentiality is supposed to enhance.

I have been to hundreds of asylum interviews.  They all begin the same way with the asylum officer informing the applicant that asylum applications are confidential and that the information provided by the applicant will not be shared with the applicant’s home country.  The reason for this promise of confidentiality is obvious.  If an asylum applicant is not confident that her information will be kept secret, she is unlikely to be able to tell the full story of why she is seeking asylum.  Because a grant of asylum is anything but guaranteed and there is a good chance that an asylum applicant will be returned to the country where she fears persecution, without the promise of secrecy, an asylum applicant will understandably be reticent to tell the full story.

The requirement of confidentiality is enshrined into the asylum regulations.  The regulations provide that the information in an application for asylum, including the fact that an individual applied for asylum, shall be kept confidential.  There is an exception for disclosure to U.S. government officials under limited circumstances.  There is also an exception that allows for disclosure “at the discretion of the Attorney General.”  While that latter exception may seem wide enough to drive a truck through, such an exercise of discretion has been rare.  If the Attorney General is increasingly exercising his authority to disclose the fact of an asylum application, that abuse of discretion would undermine the entire regime of confidentiality.  It appears that this is a growing problem.  Friend of Benach Ragland (FOBR) Jason Dzubow wrote last fall that U.S. Embassy officials in China routinely violate the confidentiality provisions of the law. And, of course, some rogue official revealed a few years ago that President Obama’s aunt had applied for asylum.

In rare circumstances, the unlawful disclosure of an application for asylum has been found to generate a new basis to seek asylum.  In an unpublished opinion last year, the Board of Immigration Appeals reopened asylum proceedings based upon a breach of confidentiality.  The BIA wrote:

The respondent’s motion alleges that a United States official advised her that in obtaining the respondent’s travel documents, for the purpose of removal, he communicated by email with the Chinese Consulate in such a way as to breach the confidentiality requirements at 8 C.F .R. § 1208.6.  According to the respondent, she asked the official for copies of the emails, and he advised her that he deleted them. The respondent has proffered evidence of her attempts to obtain copies of the emails as well as other evidence concerning information supplied to the Chinese Consulate. The respondent asserts that circumstances in China have changed based in part on the government’s awareness that the respondent is a failed asylum seeker.  While the DHS has filed a statement of opposition to the motion, the DHS does not dispute the respondent’s claims that confidentiality requirements may have been breached.  We find it appropriate to reopen pursuant to 8 C.F.R. § 1003.2(a) and remand the record to the Immigration Judge for proceedings on whether the respondent is eligible for withholding of removal under the Act or protection under the Convention Against Torture in light of the new evidence in this matter.

Now that Mexican officials are aware of the application, it seems that Mr. Azcarraga’s claim has grown stronger.  There is widespread acknowledgement of the heavy hand of Mexican law enforcement.  Ironically, the desire to punish Mr. Azcarraga may have grown and his claim approved as a result of  this revelation and the embarrassment of the Mexican government.

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