Sarah Robison, University of Minnesota Law School '12, writes about the possible deleterious impact of the citizen-contractor loophole on asylum applicants...
Individuals applying for political asylum in the United States often believe that applying for asylum will alleviate their fear of persecution, but often do not realize that a citizen-contractor loophole in the asylum application process may give rise to a risk of future harm. US regulations prohibit the disclosure of information contained in or pertaining to any asylum application absent the written consent of the applicant or authorization of the Attorney General. 8 C.F.R. S. 208.6. Under these regulations, the US Citizenship and Immigration Service ("the Service") may not disclose information or records that reveal that an alien has applied for asylum in the United States. Further, the S. 208.6 regulations require the Department of Homeland Security to coordinate with commensurate branches of government to ensure applicant confidentiality is maintained. These statutory prohibitions operate to safeguard an asylum applicant's personal information - information which, if made publically available, could subject the applicant to harm if she is repatriated to her country of origin. In Lin v. Department of Justice an asylum applicant's personal information was disclosed to his persecutors, and the Second Circuit held that seeking political asylum in the United States may give rise to a well-founded fear of future persecution.
While 8 C.F.R S. 208.6 surely protects many asylum applicants from potential harm, it nonetheless suffers from a critical flaw: disclosure of an asylum applicant's personal information may still be made to United States government officials and contractors, including local citizen-contractors in the applicant's country of origin. Such citizen-contractors are foreign nationals employed by the Service and Consular Sections of US Embassies abroad to investigate claims and authenticate foreign documents for purposes of preventing fraud. In the course of such work, citizen-contractors are privy not only to information that indicates that an alien is applying for asylum, but are also privy to confidential documents and information contained in the alien's asylum application. Unfortunately, no standardized procedure exists to thoroughly vet citizen-contractors' backgrounds and affiliations. Thus, the possibility exists that citizen-contractors have close ties to an applicant's persecutors or, in certain instances, may even be the persecutors themselves. Besides raising serious issues of client confidentiality, this flaw endangers the very individuals 8 C.F.R S. 208.6 is designed to protect.
A defensive asylum case I worked on as a law clerk illustrates the deleterious impact the citizen-contractor loophole in 8 C.F.R S. 208.6 may have on an asylum applicant's future safety. Our client applied for relief through political asylum based on persecution suffered at the hands of the local government and police force in her country of origin. In the course of investigating her claim, the Immigration Judge requested that a document used to establish our client's identity be sent to the Consular Section of the US Embassy in her country of origin to be authenticated. A citizen-contractor employed by the Consular Section undertook the task of authenticating our client's document. This citizen-contractor happened to be a former member of the police force in our client's country of origin, one of the very actors responsible for her persecution. To our knowledge, this citizen-contractor was not thoroughly vetted by the Consular Section prior to beginning employment, and his actions within the scope of his former employment as a police officer were unknown. Thus, we did not know whether the citizen-contractor was one of our client's former persecutors or whether he retained ties with individuals who were.
The uncertainty surrounding the citizen-contractor's background and affiliations proved harmful to our client on multiple levels. First, the citizen-contractor, an individual formerly employed by our client's persecutor, gained knowledge of our client's whereabouts, her application for asylum, and certain details regarding her claim. This knowledge put our client at potential risk of harm both in the United States and, were our client repatriated, in her country of origin. Second, given the citizen-contractor's possible conflict of interest, we were concerned with the accuracy of his determination regarding the authenticity of our client's document. For example, the citizen-contractor could have reported that our client's document was fraudulent, even if it were in fact authentic. This finding would have undermined our client's credibility, increased the chance that our client would be repatriated to her country of origin, and effectively delivered our client into the hands of her persecutors.
Though our client was granted asylum and fortunately incurred no harm as a result of the citizen-contractor's involvement in her case, others affected by the S. 208.6 loophole may not be as fortunate. An increasing body of case law, including Lin v. Department of Justice and Befekadu-Ashene v. Holder, illustrate the dangers that the citizen-contractor loophole of 8 C.F.R S. 208.6 poses to potential asylum applicants. Presently, the only remedy available to applicants harmed by the loophole is the opportunity to file a second asylum application or other form of relief based on the breach of confidentiality. However, this remedy fails to address the irreversible damage stemming from the potential disclosure of information to citizen-contractors in the applicant's country of origin. Until sufficient safeguards are adopted to mitigate the citizen-contractor loophole of 8 C.F.R. S. 208.6 and ensure the safety of asylum applicants, such as a standardized procedure for vetting citizen-contractors employed by the Service and Consular Sections of United States Embassies, those seeking shelter from persecution still remain at risk.