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Immigration Law: Credibility is Key in Refugee and Asylum Cases

Introduction

The United States, it is often said, is a nation of immigrants. For generations, the U.S. had virtually no restrictions on immigration and waves of immigrants came here to settle, building towns and cities and bolstering the nation's industry. By the 20th century, however, the frontier was gone and the public and its legislators sought to limit the influx of immigrants. To accomplish this, Congress has passed a series of laws restricting immigration. Yet the immigration laws continue to recognize an important reason many immigrants came to this country: to escape persecution in their homeland. This principle is embedded in the laws governing refugees. Persons facing persecution in their native country on any of five bases may be admitted to the United States as refugees. In addition, persons fearful of persecution may secure asylum, which can lead to permanent residency.

What is a Refugee and Who Qualifies?

A refugee is defined by the Immigration and Nationality Act as a person who has a well-founded fear of persecution in his or her native country because of that person's race, religion, nationality, membership in a particular social group, or political opinion. The President, in consultation with Congress, can designate certain persons as refugees and establish limits for the grant of refugee status for persons from various parts of the world. Excluded from the definition (and therefore from immigration relief based thereon) are persons who have persecuted others on any of the same bases. Refugee status is limited to those fleeing persecution and does not include those who have participated in it. The law also states that a person who has been subjected to forced population control, such as sterilization or a forced abortion, or persecuted for failure to undergo such procedures, has been persecuted on the basis of political opinion.

Refugee status is distinct from two other concepts often discussed in conjunction with refugees, namely, asylum and withholding of deportation. Refugees are persons fleeing their homeland because of a fear of persecution. Asylum is a form of legal relief a refugee within the U.S. may pursue, which allows the alien to pursue permanent residency in the U.S. The award of asylum relief is discretionary with the INS. Withholding of deportation also applies to aliens in the U.S. To qualify for withholding of deportation, the Attorney General must conclude that the alien's life or freedom would be threatened on one of the five bases for refugee status. A grant of withholding of deportation does not qualify an alien to apply for permanent residency.

Proving a well-founded fear of persecution can be difficult for an alien. Typically, the alien must have been persecuted in the past on account of race, religion, nationality, membership in a particular social group, or political opinion. General oppression or economic hardship is not enough. The alien must have been persecuted, and the reason for the persecution must have been one of the above five factors.

Often the alien has little hard proof of the persecution he or she has suffered. This may be especially true in cases where the persecution has been the most severe, in which event the alien's home and possessions may have been seized or destroyed, and his friends and family killed or dispersed to unknown locations. Newspaper articles, government reports, and other studies of the alien's home can provide some support, but specific details are the most persuasive. Letters from family or friends who are aware of the alien's persecution should be secured if available.

Critical to a successful claim is the alien's testimony and credibility. Since the alien may have little besides his own description of events to prove his fear of persecution, the alien must appear credible. The INS has established a fairly comprehensive policy for examining credibility. This is because so many refugee claims turn on this issue.

In general, the alien is given the benefit of the doubt. Absent evidence that what the alien is saying is false, it is taken as true. But other factors are also involved. An alien's demeanor should reflect sincerity and truthfulness. This is a subjective determination, which may be complicated by trauma the alien has suffered at the hands of persecutors. A more reliable parameter is the specificity and detail the alien provides concerning his or her story of persecution. Lack of detail or other vagueness is a common reason given for an immigration judge's finding that an alien lacked credibility. In addition, the alien's story should be consistent. Where it is not, or appears not to be, the alien should be given a chance to explain apparent contradictions.

The immigration judge will determine whether the alien seems credible based on the alien's behavior and responses to questions in the asylum hearing. A determination that the alien is not credible, based on behavior that seems evasive, or on responses that seem incredible or contradictory, will result in denial of an alien's claim for relief. A finding that an alien lacks credibility will also hurt the alien's chances of success on appeal.

Changed circumstances in the home country can also hurt an alien's chances of securing asylum. Because relief is awarded based on the alien's present fear of persecution, past persecution will not be enough if conditions have changed in the home country in such a way as to remove the threat. This can happen, for example, when an oppressive regime, under which the alien was persecuted, is overthrown and a new government established. In that situation, the alien must show that despite the changes, he or she is still threatened. This might be the case, for example, where individuals in the old regime have taken positions of power in the new government.

Conclusion

Assisting refugees is an important historic principle of the United States. Yet many aliens who seek protection in this country are denied. Success depends on careful preparation of the alien's case, including detailed investigation of the alien's actions or beliefs that caused persecution, and careful accumulation and documentation of supporting evidence. Apparent contradictions or gaps in an alien's description of his or her persecution should be addressed prior to the hearing on the alien's claim. Research supporting the hostile and oppressive conditions in the alien's home country should accompany the request for relief, along with all available documents and testimony supporting the alien's claim. An experienced immigration attorney can help assist aliens with refugee and asylum matters, increasing their odds of a successful asylum claim.

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