Just Take My Word for It: Creating a Workable Test to Ensure Reliability in Overseas Document Verification Reports for Asylum Proceedings

Author:Emily Michele Papp
Position::J.D., The University of Iowa College of Law, 2016; B.A., Northwestern College, 2012
Pages:2141-2170
SUMMARY

This Note addresses the practice of Overseas Document Verification, an investigatory process through which employees of the U.S. Department of State attempt to verify the authenticity of documents submitted as evidence with asylum applications. The investigators' reports following these investigations sometimes contain few details regarding the methods used to reach their conclusions. This Note... (see full summary)

 
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2141
Just Take My Word for It: Creating a
Workable Test to Ensure Reliability in
Overseas Document Verification Reports
for Asylum Proceedings
Emily Michele Papp
ABSTRACT: This Note addresses the practice of Overseas Document
Verification, an investigatory process through which employees of the U.S.
Department of State attempt to verify the authenticity of documents submitted
as evidence with asylum applications. The investigators’ reports following
these investigations sometimes contain few details regarding the methods used
to reach their conclusions. This Note examines the use of these Overseas
Document Verification reports in asylum proceedings and whether courts
should require the reports to include a minimum level of detail about how the
investigation was carried out. It compares the rationales of the circuits that
have required this minimum detail threshold with those of the circuit that
came to the opposite conclusion. Finally, it suggests an administrative rule to
impose a minimum detail standard.
I. INTRODUCTION ........................................................................... 2142
II. BACKGROUND ............................................................................. 2145
A. DEVELOPMENT OF ASYLUM LAW IN THE UNITED STATES ......... 2145
B. CURRENT ASYLUM LAW AND APPLICATION PROCESS ............... 2147
C. FRAUD IN THE ASYLUM SYSTEM .............................................. 2151
D. THE ODV INVESTIGATION PROCESS ........................................ 2152
III. OVERSEAS DOCUMENT VERIFICATION REPORTS IN ASYLUM
CASES .......................................................................................... 2154
J.D., The University of Iowa College of Law, 2016; B.A., Northwestern College, 2012. I
would like to thank the Vol. 101 & 102 editors and student writers for the hard work, laughs, and
ever-impressive Bluebook wizardry that have helped make this Note the best it could be. Thanks
also to my friends and family who have stuck with me through the ups and downs of the
rollercoaster of law school. I would especially like to thank Amy Papp and Brad Crofford for their
unwavering support. From proofreading assignments and cover letters to well-timed deliveries of
pizza and flowers, I never would have survived the last three years without you.
2142 IOWA LAW REVIEW [Vol. 101:2141
A. THE SECOND CIRCUITS APPROACH: ODV REPORTS MUST INCLUDE
A MINIMUM LEVEL OF DETAIL IN ORDER TO MEET THE
SUBSTANTIAL EVIDENCE REQUIREMENT .................................. 2154
B. THE THIRD, FOURTH, SIXTH, AND EIGHTH CIRCUITS
APPROACH: ODV REPORTS MUST INCLUDE A MINIMUM LEVEL OF
DETAIL IN ORDER TO ENSURE CONSTITUTIONAL DUE PROCESS
RIGHTS ................................................................................. 2157
C. THE NINTH CIRCUITS APPROACH: NO MINIMUM LEVEL OF DETAIL
IS REQUIRED TO ESTABLISH CREDIBILITY ................................ 2161
IV. RESOLVING CIRCUIT DISAGREEMENT AND ENSURING GREATER
CONSISTENCY BY REQUIRING A THRESHOLD LEVEL OF DETAIL
AND SPECIFICITY IN ODV REPORTS ............................................. 2163
A. USING THE LIN FACTORS TO SHAPE A WORKABLE RELIABILITY
TEST ..................................................................................... 2165
B. ENACTING THE LIN FACTOR BALANCING TEST ........................ 2167
V. CONCLUSION .............................................................................. 2170
I. INTRODUCTION
This Note examines the evidentiary standards—or lack thereof—that
decision makers apply to reports created by the Department of State for
asylum proceedings to determine whether part or all of an asylum-seeker’s
application is fraudulent. Asylum represents a unique component of the
immigration system. In offering asylum, the United States opens its doors and
offers safe-haven to those fleeing persecution or violence.1 This grant of
protection is open to all who might reach the United States and prove their
eligibility; there is no annual or per-country limitation on how many
individuals can earn asylum.2 A successful applicant (an “asylee”) immediately
gains the right to work in the United States and is later able to gain a “green
card” and eventually citizenship.3
A successful asylum application promises great reward, and because one’s
claim could theoretically succeed on one’s word alone,4 the potential
1. See infra Part II.A–B.
2. Jie Zong & Jeanne Batalova, Refugees and Asylees in the United States, MIGRATION POLY INST.
(Oct. 28, 2015), http://www.migrationpolicy.org/article/refugees-and-asylees-united-states.
3. These benefits apply not only to principal applicants, but also derivatively to eligible
spouses and children. See infra note 33 and accompanying text.
4. See Immigration and Nationality Act § 208(b)(1)(B)(ii), 8 U.S.C. §1158(b)(1)(B)(ii)
(2012) (“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.”); see also infra notes 41–44 and accompanying text (explaining what
evidence is required as part of an asylum application).

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