Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

The June 2009 Immigration Briefings, entitled “Credibility, Burden of Proof, and Corroboration Under the Real ID Act,” 09-06 Immigration Briefing 1 (June 2009), discusses credibility determinations as prescribed by the REAL ID Act of 2005, primarily in the context of asylum relief. The Briefing addresses both burden of proof and corroboration as part of its analysis of credibility under the REAL ID Act. The Briefing begins with a historical background of the REAL ID Act and continues by examining burden-of-proof issues. The Briefing provides an analysis of the standard requirement under the REAL ID Act that aliens applying for relief demonstrate that harm on account of a protected ground be at least one central reason for feared persecution as compared with the pre-REAL ID Act mixed-motive standard. Also discussed in the Briefing are the REAL ID Act credibility amendments, which require that factfinders consider the totality of circumstances when considering credibility as applied to minor inconsistencies in testimony and the heart of the applicant’s claim. Finally, the Briefing discusses language in the REAL ID Act that gives immigration judges the right to demand that an alien produce evidence to corroborate otherwise-credible testimony unless that alien does not have the evidence and cannot reasonably obtain it.

The June Briefing was written by James Feroli, an attorney with the Immigrant and Refugee Appellate Center in Alexandria, Virginia, specializing in immigration appellate issues.

During the 108 Congress, a number of proposals related to immigration and
identification-document security were introduced, some of which were considered
in the context of implementing recommendations made by the National Commission
on Terrorist Attacks Upon the United States (also known as the 9/11 Commission)
and enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of
2004 (P.L. 108-458).  At the time that the Intelligence Reform and Terrorism
Prevention Act was adopted, some congressional leaders reportedly agreed to revisit
certain immigration and document-security issues in the 109th Congress that had been
dropped from the final version of the act.

The REAL ID Act of 2005 was first introduced as H.R. 418 by Representative
James Sensenbrenner on January 26, 2005, and passed the House, as amended, on
February 10, 2005.  The text of House-passed H.R. 418 was subsequently added to
H.R. 1268, the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005, which was introduced by Representative
Jerry Lewis on March 11, 2005, and passed the House, as amended, on March 16,
2005.  H.R. 1268 passed the Senate on April 21, 2005, as amended, on a vote of 99-
0, but did not include the REAL ID Act provisions.  A conference report resolving
differences between the two versions of the bill, H.Rept. 109-72, passed the House
on May 5, 2005 and the Senate on May 10, 2005, before being enacted into law on
May 11, 2005. The version of the REAL ID Act (P.L. 109-13, Division B) ultimately
enacted includes most of the provisions of the REAL ID Act that initially passed the
House (though not those relating to the bond of aliens in removal proceedings),
though some changes were made to certain REAL ID Act provisions.

This report analyzes the major provisions of the REAL ID Act, as enacted,
which, inter alia, (1) modifies the eligibility criteria for asylum and withholding of
removal; (2) limits judicial review of certain immigration decisions; (3) provides
additional waiver authority over laws that might impede the expeditious construction
of barriers and roads along land borders, including a 14-mile wide fence near San
Diego; (4) expands the scope of terror-related activity making an alien inadmissible
or deportable, as well as ineligible for certain forms of relief from removal; (5)
requires states to meet certain minimum security standards in order for the drivers’
licenses and personal identification cards they issue to be accepted for federal
purposes; (6) requires the Secretary of Homeland Security to enter into the
appropriate aviation security screening database the appropriate background
information of any person convicted of using a false driver’s license for the purpose
of boarding an airplane; and (7) requires the Department of Homeland Security to
study and plan ways to improve U.S. security and improve inter-agency
communications and information sharing, as well as establish a ground surveillance
pilot program.

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