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Your Rights to Confidentiality when you Apply for Asylum and other forms of Protection.

The confidentiality of an asylum claim is a common concern for people in the United States who have filed an I-589 Application for Asylum. One person asked me if local law enforcement officers, who were interviewing him about a crime, would know that he applied for asylum and then use that information against him. Other asylum-seekers are worried that the government in their home countries, who is often the entity the person fears, will find out that they applied for asylum and harm them or their families.

The U.S. laws about to whom DHS (which includes USCIS, ICE, and CBP) can disclose that you have filed an asylum application is very strict. In addition, the consequences against a government official who illegally disclosed confidential asylum information are serious.

8 C.F.R. § 208.6 and 1208.6 regulate asylum-related confidentiality issues. These regulations forbid the disclosure by the U.S. government to a third party of any information or documents related to a number of different forms of immigration relief or “protection.” These include asylum claims and credible or reasonable fear reviews. By law and policy, the DHS has expanded this protection to include any application for asylum, withholding of removal (INA § 241), protection under Article III of the Convention Against Torture, refugee status (INA § 209), and any claim of fear that is referred to USCIS for a credible fear or reasonable fear review.

The exceptions to this prohibition against disclosure are very limited. The person seeking any of these forms of protection can waive their confidentiality right. However, that waiver must be in writing and in advance of the disclosure. Simply because a person talks about the fact that they applied for one of these forms of protection is not a constructive waiver of the confidentiality right, and the Government cannot then disclose all the details of the claim to whomever they choose.

There is also an exception for DHS to disclose your claim to the Immigration Court or Federal Courts. This is to facilitate the review of your protection claim and most of the time, this is to help the asylum-seeker appeal a decision that originally went against them. There is another extremely limited and rare exception that relates to terrorism investigations, however, this exception will not apply to the vast majority of protection claims. There is no specific exception for disclosing your claim to the government in your home country.

There are occasions when DHS officials will disclose your identity and the fact that you applied for asylum to a third party without your written consent and in violation of the asylum confidentiality laws. When this happens, the law requires that DHS notify you and your attorney. If your asylum confidentiality rights have been violated, there are multiple avenues of recourse that you can pursue against the DHS and its employees, including reopening your asylum case. The experienced immigration attorneys as Shorstein, Lasnetski & Gihon can guide you through the entire asylum process and help you seek protection from the U.S. Government. We can also help you hold responsible, those who may violate your rights under the asylum laws.