The Real ID Act of 2005 has increased the burden on foreign nationals to produce documents in asylum cases. In essence, this law requires that applicants obtain evidence proving their claim; those relying solely on their testimony must provide reasonable explanations as to why documents are not available.

The silver lining to this cloudy law is that immigration judges CANNOT ignore documents presented by asylum applicants, including witness affidavits. For example, the Ninth Circuit Court of Appeals in Ochave stated “The immigration judge must consider evidence contained in an application for asylum."

Recently, in Khattak, the First Circuit Court of Appeals reversed the denial partially for failure to examine the full record. In this case, the Board of Immigration Appeals and the Immigration Judge stated that the foreigner had failed to provide any compelling evidence in his case regarding a specific aspect of his claim.

The First Circuit found this not to be true given that the foreigner had provided an affidavit. The Court in Khattak stated this was evidence even if it “does not go all the way to proving the claim."

The moral of the story is that foreigners should submit every document that supports their claim, including statements by friends and family members who witnessed the harm or the trauma caused by the harm. The Judge has an obligation to consider the evidence, and failure to do so, will give the foreigner a basis to appeal an asylum denial.

Although the author is a Board-certified immigration expert, this guide is intended as general information and not specific legal advice. This communication does not create an attorney-client relationship. Schedule a consultation with an attorney to address individual concerns.