Preparing for Asylum and the REAL ID Act

by Michael J. Spychalski

When preparing a client for an asylum case in immigration court, it is very important to fill out and go over the asylum application with the client. The biggest stumbling blocks in applying for asylum are inconsistencies between testimony and what is on the application. On May 11, 2005, President Bush signed the Real ID Act into law. This law has had a negative impact on immigrants and asylum seekers. The Real ID Act requires an applicant to establish that an asylum seeker is a refugee within the meaning of the Immigration and Nationality Act, section 101(a)(42)(A), and 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 the applicant’s persecution. Applicants must demonstrate a clear nexus between the persecution and a protected ground.

A judge may grant asylum based on an applicant’s testimony alone, but only where the testimony is credible, persuasive and refers to specific facts sufficient to demonstrate that the applicant is a refugee. According to the Immigration and Nationality Act, section 101(a)(42)(A), a refugee is defined as any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which the person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.

A judge can require other evidence to corroborate testimony unless the applicant does not have the evidence and cannot reasonably obtain the evidence. The judge is going to look at all relevant factors in deciding the applicant’s credibility. These factors include the applicant’s or witness’s demeanor; his or her candor or responsiveness; the inherent plausibility of the applicant’s or witness’s account; consistency between the applicant’s or witness’s written and 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. This law makes preparation vital to an asylum case.

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