The Real ID Act was enacted on May 11, 2005. This law imposed strict standards on foreign nationals by allowing immigration judges to require foreigners to produce documents in order to win asylum. Testimony is not enough.
Asylum applicants, who by definition are fleeing harm in their home countries, rarely focus on gathering documents to prove their future case. Nevertheless, Immigration Judges deny cases by stating that documents “must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." The judge makes a quick determination – usually based only on his or her own preconception of recordkeeping – that applicants should be able to get police reports or hospital records, for example. When the applicant cannot provide it, the judge denies asylum.
This happened in Huang v. Holder, where the foreign national’s application for asylum was denied because the Immigration Judge found that the applicant’s testimony was insufficient without additional documentary evidence. The Immigration Judge ruled – without explanation -- that documents proving the harm were “reasonably available."
Huang appealed the denial to the federal court and won. In August 2013, the Second Court of Appeals stated that IF Immigration Judges deny asylum because they believe records are “reasonably available," the judges must explain why they believe the documents are on hand.
In other words, this shifts the burden to the government to explain why the foreign national could have obtained the evidence. This is a heavy burden for the government.
Despite this favorable new decision, foreigners must make every effort to obtain all evidence to prove their claim. If they cannot, they should be prepared to explain clearly why because they will be questioned by a judge or officer.
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.