Reconciling expectations with reality: the REAL ID Act's corroboration exception for otherwise credible asylum applicants.

• Author: Reed, Alexandra Lane
• Position: NOTE

The international community finds itself today in the throes of the largest refugee crisis since World War II. As millions of refugees continue to flee violence and persecution at home, the immediate concern is humanitarian, but in the long-term, the important question becomes: What are our obligations to those who cannot return home? U.S. asylum law is designed not only to offer shelter to legitimate refugees, but also to protect the country from those who seek asylum under false pretenses. Lawmakers and policymakers have struggled to calibrate corroboration requirements for asylum claims with the reality that many legitimate asylum seekers may not be able to obtain such corroboration. Prior to Congress's passage of the REAL ID Act ("REAL ID") in 2005, no single standard governed the circumstances in which an immigration judge (IJ) could require an asylum applicant to provide extrinsic evidence to corroborate credible testimony. Though REAL ID established that asylum applicants usually must provide corroborating evidence whenever an IJ decides to require it, Congress created an exception for otherwise credible applicants who do not have such evidence and cannot reasonably obtain it. The circuits disagree, however, as to whether IJs must tell asylum applicants, before a decision is rendered, if they will be required to provide corroborating evidence and what sort of evidence they will need to provide. This Note argues that 8 U.S.C. [section] 1158(b)(l)(B)(ii) reveals an unambiguous congressional intent to require an IJ to give asylum applicants advance notice of the evidence deemed necessary to corroborate otherwise credible testimony. It further contends that this advance notice must specify the type of corroboration expected, in order to give applicants who cannot reasonably obtain corroborating evidence a meaningful opportunity to avail themselves of the corroboration exception.

TABLE OF CONTENTS Introduction I. CORROBORATION STANDARDS FOR ASYLUM CLAIMS: A HISTORY OF TENSION AND INCONSISTENCY A. Corroboration Standards Before the REAL ID Act B. The Corroboration Standard After the REAL ID Act C. Conflicting Interpretations of the REAL ID Act's Corroboration Exception II. INTERPRETING REAL ID'S CORROBORATION EXCEPTION: THE ADVANCE NOTICE-AND-OPPORTUNITY REQUIREMENT A. The Text and Legislative History of the Corroboration Exception Reveal Congress's Intent to Require Advance Notice and Opportunity B. The Corresponding Review Provision Presupposes an Advance Notice-and-Opportunity Requirement III. GIVING PRACTICAL EFFECT TO REAL ID'S CORROBORATION EXCEPTION: THE SPECIFIC NOTICE-AND-OPPORTUNITY REQUIREMENT A. Specific Notice Is Required to Provide Applicants with a Meaningful Opportunity to Invoke the Corroboration Exception B. The Likelihood that Immigration Judges Will Make Inaccurate Assumptions About the Availability of Corroboration Further Warrants Specific Notice and Opportunity C. Lack of Specific Notice and Opportunity Will Disproportionately Harm the Most Vulnerable Pro Se Asylum Applicants CONCLUSION Introduction

[O]ne who escapes persecution in his or her own land will rarely be in a position to bring documentary evidence or other kinds of corroboration to support a subsequent claim for asylum. ... [O]ne who flees torture at home will rarely have the foresight or means to do so in a manner that will enhance the chance of prevailing in a subsequent court battle in a foreign land. Common sense establishes that it is escape and flight, not litigation and corroboration, that is foremost in the mind of an alien who comes to these shores fleeing detention, torture and persecution. (1) Faced with a large-scale refugee crisis in the aftermath of World War II, the international community developed the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol (collectively, the Refugee Convention) to articulate all states' obligations toward refugees fleeing persecution at home.(2) The Refugee Convention classified as refugees all individuals who cannot return to their countries of origin due to "a well-founded fear of persecution" based on one of the following protected characteristics: race, religion, nationality, membership of a particular group, or political opinion. (3) The Refugee Convention also articulated the principle of non-refoulement, which prohibits states from returning refugees to any country where they would be at risk of persecution. (4)

Although the United States ratified the 1967 Protocol in 1968, the United States had no specific asylum law to govern adjudication of refugee claims until Congress enacted the Refugee Act in 1980. (5) Congress expressly intended the Refugee Act to ensure that domestic asylum law accurately reflected the United States' international obligations under the Refugee Convention. (6) Congress has revised asylum law and procedures several times since 1980, (7) but the essence of the protection remains the same: asylum is a form of discretionary immigration relief available to foreign individuals within the United States (8) who qualify as refugees and are otherwise admissible to the United States. (9)

U.S. asylum law places the burden of proof to establish her status as a refugee on the asylum seeker. (10) In order to qualify as a refugee for asylum purposes, an applicant must establish an unwillingness or inability to return to her home country due to past persecution or a well-founded fear of future persecution. (11) Such persecution must be "on account of race, religion, nationality, membership in a particular social group, or political opinion." (12) An asylum applicant seeking to establish a well-founded fear of persecution must demonstrate both subjective fear and a reasonable possibility that she would be subject to persecution if sent back to her home country. (13) An applicant's demonstration that she has suffered past persecution creates a rebuttable presumption of a well-founded fear of future persecution. (14)

Because of the circumstances under which they have fled their home countries, many legitimate asylum applicants are unable to produce documentary evidence to corroborate their claims of persecution. (15) To accommodate this reality, U.S. asylum law allows an immigration judge (IJ) to find an asylum seeker's testimony sufficient to sustain her burden of proof without additional corroboration. (16) This accommodation is reserved for cases in which the IJ is satisfied that "the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." (17) The current corroboration provision, passed as part of the 2005 REAL ID Act Amendments to the Immigration and Nationality Act (INA), (18) makes it clear that this accommodation is optional. (19) An IJ may still require an asylum seeker to provide corroborating evidence in order to sustain her burden of proof, despite finding the applicant's testimony credible, persuasive, and specific. (20)

Pursuant to the REAL ID Act's corroboration provision, codified at 8 U.S.C. [section] 1158(b)(1)(B)(ii), (21) if an IJ chooses to require additional evidence to corroborate otherwise credible testimony, the applicant must provide it. (22) The only exception to this rule is if "the applicant does not have the evidence and cannot reasonably obtain the evidence." (23) If the applicant fails to establish that she does not have and cannot reasonably obtain the required evidence, the IJ may deny her asylum claim for lack of corroboration. (24) Courts disagree, however, as to whether Section 1158(b)(1)(B) (ii) requires an IJ to provide an otherwise credible asylum applicant with advance notice of the corroboration required and an opportunity to explain why such evidence is not reasonably available. (25)

The asylum seekers for whom this corroboration exception is likely to matter most are those who must represent themselves in Immigration Court because they lack the resources to hire an attorney. (26) Pro se asylum seekers make up approximately one-third of the total number of asylum applicants. (27) For applicants who are represented by counsel, the importance of receiving advance notice of expected corroboration is diminished. Experienced attorneys are likely to anticipate the aspects of their clients' claims for which corroboration may be expected. (28) An attorney also will appreciate the importance of providing such corroborating evidence or a convincing explanation as to why it is not reasonably available. (29) Most pro se asylum seekers, on the other hand, are ill equipped to navigate this process alone. (30) For example, an applicant may have corroborating evidence, but she may not understand the importance of presenting it at her hearing. (31) Or, an applicant may have a valid explanation for why she cannot obtain a particular piece of corroboration, but she may not provide that explanation if she is not asked for it. For an otherwise credible applicant, having an IJ take the time to identify the expected corroboration and provide an explicit opportunity to present such corroboration, or explain why it is not reasonably available, may mean the difference between deportation and a grant of asylum. The stakes could not be higher for pro se asylum seekers. (32)

This Note argues that 8 U.S.C. [section] 1158(b)(1)(B)(ii) unambiguously requires an IJ to provide an asylum applicant with specific notice of the evidence deemed necessary to corroborate her otherwise credible testimony. In addition, the IJ must give the applicant an opportunity to provide that corroboration or explain why it is not available before the IJ issues a decision. (33) Part I traces the development of corroboration standards in asylum law and outlines the current disagreement over the existence of a notice-and-opportunity requirement within the REAL ID Act's corroboration standard. Part II demonstrates that the Act unambiguously...