The REAL ID Act and Judge Discretion

Earlier this summer, I wrote about how strict immigration judges in Atlanta are, and the impact that this has on our clients and those we meet.

This week, I wanted to explore some of the policies behind why judges are so strict. The following is part of my ongoing research on the REAL ID Act to fully understand its implications for individual applicants for asylum. This is by no means a comprehensive list or an answer to why Atlanta's rates are so much lower than the rest of the country. Rather this is a brief analysis of laws put into place over the past 10 years and precedent in the 11th Circuit that could possibly need to change if the asylum approval rates in Atlanta were to change.

In 2005, President Bush signed into law the REAL ID Act as part of The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. The Conference Report, showing how Congress's intention with the Act, reveal sentiments to be expected in 2005. The Report's section on the REAL ID Act opens with several stories of 9/11 terrorists who exploited the asylum process in order to be able to stay in the United States and plot attacks. Congress wanted to make the asylum process much stricter in order to prevent this from happening again. 

The REAL ID Act is slivered in, beginning 70 pages into the law. In short, the REAL ID Act codified the burden of proof for asylum applicants, and placed a sustaining burden of proof on the applicant for corroborating evidence and credibility. The burden is placed on the applicant to prove their status as a refugee.1 8 U.S.C. 1158(b)(1)(B)(i). In addition, the trier of fact (immigration judge) must be satisfied that the applicant's testimony is "credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." Id. at (ii). If the immigration judge is not satisfied, the evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain it. Id. (emphasis added).

This is a strong burden to place on people fleeing violence and persecution in their home countries. Boko Haram could have burned the house of the applicants, and so now they have very few documents to bring as evidence. A young woman could have had to flee her house in the middle of the night to leave her abusive husband. Some of these situations may be covered under the "cannot reasonably obtain" provision. However, a judge could find that an applicant's testimony is not persuasive or that it does not refer to specific facts enough and requires corroborating evidence. If a judge finds that an applicant should be able to reasonably obtain the evidence but doesn't, an individual is denied asylum. 

This leads to a second issue: judge discretion in deciding the credibility of an applicant. Asylum seekers have lots of presumptions to overcome under the REAL ID Act and its historical context, and so judges' discretion becomes even more important. Throughout the Conference Report, Representative Lewis (R-CA) discusses 9th Circuit precedent that he wants to bring in line with the Board of Immigration Appeals (BIA) precedent that was already in place at the time. However, he emphasizes the importance of letting judges make the determination of whether or not a person is lying. Citing a 9th Circuit decision, Mr. Lewis argues that Immigration Judges are "by virtue of [their] acquired skill[s], uniquely qualified to decide whether an alien's testimony has about it the ring of truth." Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985).2 The REAL ID Act isn't seeking to do away with judge discretion, but rather strengthen it.

So far in my reading, it seems that the law is on the side of Immigration Judges. Again, this is not necessarily a bad thing, but it does place some barriers for those who want to change the asylum approval rates in Atlanta. There's plenty more reading to come.


1Under the Immigration and Nationality Act, "refugee" and "asylee" require the same elements. A person is granted "refugee status" when they are able to come to the United States from abroad, and "asylum status" is granted when they are allowed to stay here. The individual must prove the same elements, but the name is just dependent on where they are located.

2This deference to judges has been brought into the 11th Circuit through cases such as Axmed v. United States AG, 145 Fed. Appx. 669 (11th Cir. 2005), and D-Muhumed v. United States AG, 388 F.3d 814, 819 (11th Cir. 2004). These precedents predate the REAL ID Act, and so would only be strengthened by this affirmation.