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Jason Dzubow on Political Asylum

The Prevalence of Evidence

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If the asylum seeker's affidavit is the heart of her application, evidence might be considered the lungs: It provides the oxygen that allows the heart to function. Or maybe anatomical analogies are just weird. The point is, evidence in support of an asylum application is crucial to the application's success. But what is evidence? And what happens if you can't get it?


An asylum attorney prepares to file evidence in his case.


Let's start with a bit about the law. The REAL ID Act of 2005 provides--
The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

See
INA 208(b)(1)(B) (emphasis added). In other words, if you claim that something happened (you were unlawfully detained), you are required to provide evidence about it (a police document), and if you are unable to provide such evidence, you should be prepared to explain why you could not get the evidence (maybe the police in your country don't issue receipts for illegally arresting people).

What this means is that you should try to get evidence supporting your case. Different lawyers may have different views on this, but I think you should get evidence for every claim you make in your affidavit and I-589. That includes evidence not directly related to the asylum claims, such as evidence of education, employment, awards and certificates, membership in organizations and religious institutions, travel to third countries, documents used to obtain your U.S. visa(s), birth certificates for you and your immediate family members, all passports for you and your immediate family members, marriage and divorce documents, national ID cards, military service records, arrest records, and general medical records. In other words, evidence about who you are and what you've been doing with your life.

Of course, you also need to get evidence related to your asylum claim. So if you were arrested, harmed or threatened, get evidence about what happened: Police and court documents, medical records and photos of injuries/scars, copies of any threats. If your case involves political activity in your country or elsewhere (including the U.S.), get party membership cards, receipts, letters from the party, and photos at political events. If it is a religious case, get evidence of your religion: Letters from church leaders and/or members, photos at religious events, certificates, membership documents, and government IDs, which sometimes list religion. If the case is based on nationality, ethnicity or race, get evidence that you belong to the group in question, such as identity documents.

For people claiming asylum based on membership in a particular social group ("PSG"), the evidence needed depends on the group. For LGBT cases, get evidence of sexual orientation, such as membership in gay rights groups and evidence of past relationships. If your PSG involves family members, get evidence of familial relationships--birth and marriage certificates, photos, and other family documents, including evidence that other members of your family were harmed or threatened. If you have a domestic violence case, get evidence of the relationship (marriage certificate, birth certificates of children, photos together, other documentation that you were in a relationship) and of the harm.

If there are newspaper or magazine articles, country reports or human rights reports--or even blog posts or Facebook posts--that support your asylum claim, include those. If you are using a newspaper or magazine, make sure to include the cover page of the newspaper, and the entire article. If you are using an on-line resource, make sure to include the website address.

You should also get letters from family members, friends, and colleagues who can attest to your problems (I've posted about how to write a good letter here). In many cases, it is impossible to get direct evidence of harm, and so letters from people attesting to your problems is all that you can get. While letters from family members and friends are not as valuable as more direct evidence, they are still valuable, and we always include such letters if we can get them.

Some people have scars or other evidence of physical harm (including FGM). In such cases, you should get a forensic medical report to help bolster your claim about how you received the scar (in other words, that the scar was caused by torture as opposed to a car accident or disease). Of course, the doctors who write such reports do not know for sure how you received a particular scar. But they can state that the scar is consistent with your explanation of how it was received. If you cannot afford a forensic exam (or find a doctor to do the exam pro bono), at least take photos of the scars and include them with your evidence. Normally, we have our clients take a close-up of the scar and also a photo from further away, so we can see the person's face (so we know the scar is on that particular person's body).

We also sometimes submit other types of expert reports. The most common are psychological reports (that indicate PTSD, for example). In my opinion, the most effective reports are the ones created in the course of treatment. The less effective reports are created after one or two meetings with the asylum seeker, and were clearly created for purposes of the asylum case. Sometimes, we also use expert reports related to country conditions, though these days, we can usually find what we need on the internet.

If any of your close family members applied for or received asylum, refugee or other humanitarian status (including SIV status) in the U.S. or abroad, try to get evidence of that status. In general, it is very helpful to show that other family members, who are often similarly situated, have been persecuted or have already received asylum. Indeed, we recently did a case in Texas where our client's close family members all had SIV status (meaning that the U.S. government determined those family members faced a threat in the home country due to their cooperation with the U.S.). This evidence alone was enough to convince the Judge to grant asylum to our client.

You should also submit country condition information. Some lawyers submits lots of country condition information. I am not one of those lawyers. I think that redundant reports are counterproductive and distracting. It is standard procedure to submit the U.S. State Department Report on Human Rights Practices (or at least an excerpt of the relevant portions). Also, if applicable, we submit the State Department Report on International Religious Freedom. If those reports are not sufficient, we submits reports from other credible organizations, like Human Rights Watch or Amnesty International. There are also lots of issue-specific reports from groups like the Committee to Protect Journalists, Doctors Without Borders, and International Christian Concern, to name a few. If there are news articles from credible sources, we submit those too (if they are relevant and not redundant). Finally, if there are specific articles or reports from less-reliable sources that speak directly to the issues in the case, we submit those as well.

Of course, any documents not in English need to be properly translated.

Finally, it is important to review all the evidence to ensure that it is consistent with your statement and with the other evidence submitted (for example, if your statement says that you lived in a red house, your witness letters should not say that you lived in a blue house). Inconsistent evidence can lead to a determination that you are not credible, so be careful about this.

The evidence for each applicant is case specific. If you have an attorney, one of the attorney's jobs is to evaluate your case and determine what evidence is helpful. If you do not have an attorney, you should still do your best to obtain as much evidence as possible. This will help increase your chances for a successful outcome.

Originally posted on the Asylumist: www.Asylumist.com.

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