On May 11, 2005, President Bush signed into law the Real ID Act as an attachment to the Emergency Supplemental Spending bill. 1
Although some of the harsh asylum provisions originally included in the Act were significantly ameliorated in the final bill language, the law has nevertheless had a negative impact on immigrants seeking protection in the United States from persecution in their home country.
The changes that the Real ID Act made to prior law included an amended burden of proof for asylum and withholding of removal claims, a standard regarding sufficiency of evidence, and provisions relevant to credibility determinations. The law applies:
- To new asylum, withholding and Convention Against Torture (CAT) applications filed on or after May 11, 2005 (for rebuttable presumptions of credibility); and
- retroactively to all cases with a final order of removal (for review of finding as to availability of corroborating evidence).
9.1 Post Real ID Act — Burden of Proof
The Real ID Act amended the INA such that “[t]o establish that the applicant is a refugee within the meaning of [INA §101(a)(42)(A)], the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 2
As a result, applicants are expected to demonstrate a clear nexus between the persecution and a protected ground. Attorneys should take care to consider and highlight all direct and circumstantial evidence in the case that demonstrates this nexus. Client affidavits and testimony should include, where available, statements that persecutors may have made regarding the protected ground and an articulation of all other circumstances, including that of similarly situated individuals, that have led the client to believe that the harm or feared harm is on account of one of the protected grounds.
9.2 Post Real ID Act — Corroborating Evidence
The Real ID Act also places a heavy burden on the applicant to corroborate their asylum, withholding and CAT claims. Under the Act:
- An adjudicator may grant asylum on testimony of the applicant alone but only where the testimony “is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.
- An adjudicator may require other evidence to corroborate otherwise credible testimony “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”
- “In determining whether the applicant has met the applicant’s burden [of proof], the trier of fact may weigh the credible testimony along with other evidence of record.” 3
While the law protects the ability of asylum-seekers to obtain relief based on their testimony alone, it is at the adjudicator’s discretion whether the testimony alone is sufficient. Attorneys should thus put themselves in the position of an Immigration Judge (IJ) and ask: “What type of evidence would I want to consider to make a fair determination of this claim?” Attorneys should be prepared to gather all corroborating evidence reasonably available to support a client’s claim and, where unavailable, provide a clear explanation as to why the client is unable to obtain the evidence. Whenever possible, the unavailability of evidence should also be supported by corroborating evidence.
For example, if an applicant reports that the police in their country arrested them and their partner when the couple were leaving a gay club, and that the applicant’s partner was beaten so badly by a homophobic gang that they required stitches on their face, the applicant should attempt to obtain an affidavit or letter from their partner confirming that the incident took place. If at all possible, it would also be best if the partner could supply a copy of the medical report for the stitches. If it is not possible to obtain either of these corroborating documents, the applicant should be prepared to explain why. Acceptable reasons for not getting the evidence could include that the applicant and partner had a bitter break up many years ago and have not spoken since.
Where an IJ requests specific corroborating evidence at an Individual Hearing, attorneys should also consider requesting a continuance to allow the client the opportunity to obtain the evidence for the Court.
9.3 Post Real ID Act — Credibility
The Real ID Act also made it easy for an adjudicator to find that the applicant lacks credibility. Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on:
- Demeanor, candor or responsiveness of the applicant or witness;
- Inherent plausibility of the applicant or witness’s account;
- Consistency between applicant’s or witness’s written or oral statements, whenever made and whether or not under oath, but considering the circumstances under which they were made;
- Internal consistency of each statement;
- Consistency of such statements with evidence of record and U.S. State Department Reports; and
- Any inaccuracies or falsehoods contained in the statements, whether or not material to the asylum claim. 4
Attorneys should review this section of the law together with their client so that the client understands how important past statements, the history of the case, and preparation of testimony will be to the case. Attorneys should take the following steps to best prepare themselves and their clients for an asylum interview or hearing:
- File a Freedom of Information Act (“FOIA”) request: If your case is in Immigration Court, file a FOIA request to obtain a copy of the DHS immigration file on your client. The FOIA should include the Asylum Office’s assessment of the case and/or airport statements or credible fear determinations of the client. 5
- Review the Court file: Attorneys can request to review the Immigration Court’s case file and listen to any prior hearings. Note that the Immigration Court’s file may be different from the DHS file, so it is wise to both review the Court file and request a FOIA of the DHS file.
- Discuss documents: Prior to filing any document with CIS, the Court or counsel for ICE, it is important to establish its origin, chain of custody and ability to authenticate it. The client should identify the document and how they obtained it. If the attorney has any doubts about the reliability of a document, they should consult with the organization who referred the pro bono case to them or with another experienced practitioner prior to filing it with the DHS or the Court. Any document presented to Court can and likely may be examined by the federal Forensic Document Lab. If a document is found to be fraudulent, even if it is not central to the claim, the applicant’s entire claim may be found not credible.
- Discuss and review prior asylum applications and affidavits: Particularly for attorneys coming into a case after the Asylum Office referred the client to Court, counsel should review for accuracy existing asylum applications and/or client affidavits. Attorneys should inquire as to how past applications were prepared and whether the contents were reviewed with the client in their native language prior to submission. Attorneys should also discuss the use of and competency of any interpreters used prior to representation. If there are any inconsistencies, the attorney must work with their client to explain these inconsistencies. The attorney should never hope that the adjudicator won’t notice them, because adjudicators are trained to look for such inconsistencies. It is best to explain inconsistencies fully and at the earliest opportunity after their discovery.
- Prepare for cross examination: Attorneys should take care to prepare their clients for direct and cross examination, as well as inquiry by the IJ. Clients need to be able to be equally forthcoming in their responses regardless of who might be asking a question.
- Know and prepare witnesses: Real ID introduces witness behavior into the determination of a client’s credibility. Before putting anyone on the stand, prepare the witness as one would one’s client.
9.4 Post Real ID Act — Review Standards
After passage of the Real ID Act:
- The federal courts preserved their authority to order stays of removal.
- Where an IJ fails to make an explicit credibility finding, the petitioner/client and any witnesses enjoy a rebuttable presumption of credibility.
- An IJ’s finding regarding the availability of corroborating documents is a finding of fact. “No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in sections 208(b)(1)(B), 240(c)(4)(B), or 241(b)(3)(C), unless the court finds, pursuant to section 242(b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” 6
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.
- H.R. 1268. ↩
- INA §208(b)(1)(B)(i); 8 USC §1158(b)(1)(B)(i). ↩
- INA §208(b)(1)(B)(ii); 8 USC §1158(b)(1)(B)(ii). ↩
- INA §208(b)(1)(B)(iii); 8 USC §1158(b)(1)(B)(iii). ↩
- The FOIA form G-639 is available at uscis.gov/graphics/formsfee/forms/g-639.htm. However, it is now taking months or even years to obtain FOIA responses so it may not be possible to get the response before the applicant’s Individual Hearing. ↩
- INA § 242(b)(4); 8 U.S.C. 1252(b)(4). ↩