Asylum Provisions under HR 1268 Real ID Bill
Posted May 13, 2005
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Note : At the time this article was written, the H.R. 1268 Bill had passed the U.S. House and Senate. It has now been signed by the President, which makes it law. Please see our May 12, 2005 NewsFlash for details.
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Regular MurthyDotCom and MurthyBulletin readers will recall our article from last week (May 06, 2005), Bill May Provide Limited Relief for Retrogression and H2Bs, available on MurthyDotCom, about some important pending immigration legislation. This week we provide our readers with details pertaining to asylum under the provisions of the Real ID Act provisions of HR 1268.
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As mentioned before, H.R. 1268 is a bill with some serious and controversial immigration provisions as well as some potentially beneficial provisions. Other important immigration implications are covered in this week's MurthyBulletin articles H2B Relief Legislation and Australians May Be Eligible for New E Visa Status. The widely-publicized and much-debated legislation known as The Real ID Act has been added onto the H.R. 1268 Bill. The Real ID Act addresses a number of areas pertaining to immigration and immigrants, including provisions regarding asylum and other relief from removal (formerly referred to as deportation).
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The main points of the Real ID Act, in the final conference version, with respect to this area of the law, are:
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Credibility Determination in Removal Relief
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The conference report on the Bill indicates that the Bill, if enacted, would codify and alter certain credibility determination standards and procedures applicable to relief in removal cases. Credibility determinations are essentially determinations by the Court as to whether a particular witness (including the respondent who is the foreign national subject of the removal case) should be believed. This relief in removal cases includes asylum claims and withholding of removal claims, as well as other forms of relief from removal.
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Asylees are certain persons in the United States who request relief based upon a well-founded fear of persecution in their home countries based upon race, religion, nationality, membership to a particular social group, or political opinion and can prove that they meet these standards. Persons seeking withholding of removal must demonstrate that their lives or freedom would be threatened for one of the five reasons that also form the basis for an asylum claim.
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Other forms of removal relief include, but are not limited to, cancellation of removal, withholding or deferral of removal under the Convention Against Torture (CAT), Violence Against Women Act cancellation, and voluntary departure. Witness / applicant credibility determinations in these cases are quite important, as in many situations there may not be any available documentation to corroborate the claimed persecution.
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Central Reason for Persecution must be Considered
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The Bill would provide that, if there are multiple reasons that the applicant fears persecution in the home country, the applicant must show that one of the five reasons listed above is at least a central reason that the persecution may occur. This is aimed at what are being called "mixed motive" cases, in which the person could be harmed for a variety of reasons. In these cases, the Court must determine that one of the protected characteristics (race, religion, etc) is a central reason for the persecution. Thus it seems that, under this standard, a Court could determine a person would likely be persecuted, but that the person would not be entitled to the protection of asylum if the persecution was motivated more by a non-protected consideration than by a protected consideration.
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Testimony of Applicant and Witnesses
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Under current law, the testimony of the asylum applicant alone may be sufficient to allow for case approval, if it is credible in light of what is known about the applicant's country. As a practical matter, this testimony alone is almost never enough and the need for corroborating evidence is addressed in asylum case law. The Real ID Act attempts to codify standards regarding the need for corroborating evidence.
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Under the Real ID Act, the applicant's case could still be approved based solely on the applicant's testimony. The immigration judge, however, is permitted to request corroborating evidence to verify otherwise credible evidence. This evidence must be provided unless the applicant can establish that s/he does not have such evidence and that s/he cannot reasonably obtain it.
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Further, in determining whether testimony from an applicant or a witness is credible, the immigration judge is permitted to consider the totality of circumstances and all relevant factors. The judge may use the testifier's demeanor; candor or responsiveness of the testifier; the inherent plausibility of the testifier's testimony; the consistency of all of the testifier's oral and written statements, regardless of the time given or if given under oath, but considering the circumstances in which they were offered; the consistency of all such statements with other evidence of record, including the U.S. Department of State's (DOS) country conditions report; and any inaccuracies or falsehoods in any of the statements. Inaccuracies or falsehoods are considered a negative factor, regardless of whether they are related to the benefit sought.
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Under this Bill, there would be no presumption of credibility for the applicant. However, if there is no express finding of adverse credibility, the applicant has a rebuttable presumption of credibility on appeal.
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Limited Court Review
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The law would limit a court from reversing a trial court's determination on the availability of corroborating evidence to verify the content of testimony, unless the court finds that a reasonable trier of fact could only find that corroborating evidence is unavailable. That is, the appeals court cannot second guess the decision of the lower court as to whether it would be possible to provide corroborating proof, unless no reasonable court could ever have found that corroborating evidence was available. It would also prevent a court from reviewing any discretionary judgments, decisions, or actions, whether in removal proceedings or other contexts.
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Annual Caps Eliminated
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The annual cap of 10,000 on asylee applications to adjust status to permanent resident and the annual cap of 1,000 refugee or asylee applications to adjust status to permanent resident based on coercive population control claims would be eliminated under this act. This is one of the few positive provisions of the Real ID Act. Currently, people wait years to adjust status as asylees because of the annual limits. The bulk of this waiting time would be eliminated if there were no cap.
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Conclusion
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Many have expressed their concerns that these provisions will make it harder for potential legitimate asylees and those seeking removal relief to be successful in their claims. It is important for persons in removal proceedings to find qualified immigration attorneys to provide assistance. For those who cannot afford representation, there are usually pro bono programs in the respective states. It is advisable to check state bar association websites for lists of places that provide pro bono representation. The Court will also provide a list of potential free representation sources for those in need. Of course, there is a great deal of demand for these pro bono services.