One of the greatest fears that an asylum adjudicator has is that the applicant has fabricated his story and that nothing he is saying is actually true.
It is therefore essential to provide as much supporting documentation to corroborate the applicant’s claim as possible. Obviously, the most important documentation is that which goes to the heart of the applicant’s claim – police records, medical records, affidavits and letters of partners, friends and family who witnessed the harm the applicant suffered – but it is also helpful to provide corroborating documents for other aspects of the applicant’s story, including school records, employment records, and proof of community involvement.
It often takes considerable time and effort for an applicant to obtain corroborating documents, especially since such documents generally come from his home country, and he may not be in touch with family members or friends there any more. It is therefore important to begin brainstorming with the applicant almost immediately about what kind of corroborating documentation he will be able to provide.
Until recently, case law has made clear that an asylum applicant’s specific, detailed testimony alone could be sufficient to win a claim for asylum. 1 With the enactment of the Real ID Act, in May 2005, however, asylum applicants will be required to provide corroborating documents for their claims or offer a specific explanation of why it would not be possible to obtain the supporting documents. See Section #9 for a practice advisory on the Real ID Act.
20.1 Supporting Documentation Checklist
Understanding the significance of supporting documentation, the next question is what types of documentation should the applicant include? How can supporting documentation help prove the claim? The following is a “brainstorming” list, but it is not exhaustive. The more supporting documentation the applicant can provide (so long as it’s not needlessly redundant) the better.
20.2 Proof of the Applicant’s Membership in a Particular Social Group
20.2.1 For LGBT Applicants
- Affidavits/letters from the applicant’s current and/or former partner(s) to establish sexual orientation and/or transgender identity;
- Affidavits/letters from the applicant’s family member(s) or close friends who are aware of the applicant’s sexual orientation and/or transgender identity;
- Photographs of the applicant with her partner or former partner(s);
- Letters from LGBT organizations which the applicant is/was a member of, volunteers with, etc.
- Letters from therapists or other mental health professionals who can attest to therapy sessions which deal with “coming out” issues, gender identity issues or other LGBT-specific issues.
20.2.2 For Transgender Applicants
- Affidavits/letters from medical and/or mental health professionals describing any steps the applicant has made in “transitioning” anatomical sex.
20.2.3 For HIV-positive applicants
- Affidavits/letters from medical and/or mental health professionals confirming the HIV diagnosis and describing in detail the applicant’s treatment regimen. If the medical provider has sufficient knowledge, this letter should include information about the unavailability of treatment in the applicant’s home country.
20.3 Proof of Past Persecution
- Affidavits/letters from partners, friends, family members or anyone else who was present during the act(s) of mistreatment;
- Affidavits/letters from partners, friends, family members or anyone else who the applicant confided in about the incident. This is particularly important if the witness saw proof of physical harm (injuries, torn clothes, etc.) or mental harm (crying, anxiety etc.);
- Newspaper or other media coverage, or coverage by human rights groups of the particular incident in which the applicant was involved;
- Arrest records. (These are generally not available since most LGBT asylum applicants are never actually charged with a crime);
- Records of police complaints. Sometimes applicants will make an official complaint with the police after an act of violence by a third party. The record of the complaint can help verify that the incident actually happened and corroborate the applicant’s account that the police did not protect her if the perpetrator was never caught or if the applicant continued to have problems after seeking police protection.
- Medical records. If the applicant required medical treatment for an act of mistreatment, it is vital to provide the medical records. If it is impossible to obtain the medical records from the home country, the applicant should document the injury if possible by seeing a medical professional in the United States who can write a letter. For example, if the applicant’s nose was broken in a beating, the applicant should provide a letter from a medical professional confirming that his nose has been broken and that the pattern of the break is consistent with being hit by a blunt object;
- Death certificates. If a partner or close friend of the applicant was killed because of her sexual orientation, it is very important to document this, if possible with the death certificate.
20.4 Proof of Well-Founded Fear of Future Persecution – Country Conditions
See Section #21 for more in depth information on documenting country conditions.
- U.S. State Department Reports on Human Rights;
- Human Rights Reports by Amnesty International, Human Rights Watch, the International Gay and Lesbian Human Rights Commission, or other local human rights or LGBT rights organizations;
- Newspaper or other media stories of human rights abuses against LGBT and/or HIV-positive individuals in the home country;
- Expert affidavits on country conditions
20.5 One Year Filing Deadline
- I-94 and/or stamped passport. If the applicant is filing within one year of her last entry into the United States and she entered with inspection, she should submit a copy of her I-94 and/or stamped passport as proof of the date of entry. Even if she entered using a fake passport, she should submit that if she still has it because it is important evidence of her entry date;
- Other proof of date of entry. If the applicant is filing within one year of his last entry, but entered without inspection (for example, crossing the border), he should provide documentary evidence that proves he was outside the United States within the last year, such as work records or medical records. Additionally, proof of travel (airline tickets, bus tickets, hotel receipts) within Mexico or Canada can be very helpful. Proof of travel from a border state to the final United States destination doesn’t hurt, but is not really dispositive since the applicant could have been living in the border state for a long time.
- If the applicant missed the one year filing deadline, it is essential to submit adequate documentation about the changed or extraordinary circumstances. This could include medical records, affidavits from mental health professionals, reports of substantially changed conditions in the home country, etc. See Section # 5.2 on one year filing deadline exceptions.
20.6 Criminal Issues
If your client has ever been arrested in the United States, even if he was never convicted of anything, or even if the case was dismissed and sealed, he must obtain original, certified dispositions of the criminal cases. You can submit photocopies of the dispositions when you send in the asylum application, but by the time of the interview your client must have original, certified dispositions to give to the Asylum Officer.
20.7 Proof that the Applicant Merits a Favorable Exercise of Discretion
In addition to meeting the legal definition of refugee, an asylum adjudicator will look at all the relevant facts to determine if the applicant “deserves” asylum. Any documentation of positive factors should be included (especially if there are negative factors, such as arrests to counterbalance.) This proof could include:
- Proof of volunteer work, in the form of affidavits/letters on the organization(s)’ letterhead;
- Proof of rehabilitation. If the applicant committed a crime or had a substance abuse problem, proof that the applicant has completed community service or attended a drug rehabilitation program should be included;
- Proof that the applicant has been attending school, or otherwise been productive while waiting for the asylum application to be adjudicated;
- Proof that the applicant is part of the community. This could include an affidavit/letter from a religious leader stating that the applicant regularly attends religious services, or affidavit/letter(s) from LGBT or other community organizations such as HIV/AIDS service providers in which the applicant participates;
- Proof that the applicant has a partner who relies upon him, in the form of an affidavit/letter.
20.8 Supporting Documentation Format: Affidavits and Letters
In an affirmative asylum application, sworn or affirmed affidavits are submitted with the application. Asylum Officers will generally allow submission of unsworn letters, but may give them less weight than sworn statements. If the person who wrote the letter was afraid to get the document notarized (in many other countries obtaining a notarization is a much more formal procedure than in the United States), the person writing the letter should explain the basis of her fear of doing so. The witnesses writing these statements are not required to appear at the asylum interview.
Affidavits from family or friends which are being used to corroborate LGBT/H status should include: 1) the approximate date when the family member or friend first learned of the sexual orientation of the applicant and/or the relationship between the applicant and his partner; 2) how long the family member or friend has known the applicant or partner, and; 3) any sexual minority or HIV/AIDS oriented activities in which the applicant participates, e.g. pride parades, support groups, bars, films or other community or relevant cultural events.
In an application for asylum before the Immigration Court, the Judge may not allow the introduction of statements by individuals who are not willing to appear in court to testify unless they are unable to do so because of prohibitive travel costs, or for other compelling reasons. In such cases, the Judge may or may not admit the affidavits. In general, and as discussed below, Immigration Courts have much stricter rules for admitting evidence than Asylum Officers do. This is one of many reasons that it is important to do the best possible job in preparing the application at the Asylum Office level.
All documentation and affidavits should be submitted with the application, if possible. However, asylum-seekers and their legal representatives who are nearing the filing deadline may be forced to decide whether to file an application without having obtained and reviewed all documentation available. Additional documentation and affidavits obtained after filing may be submitted at the interview. Whenever possible, an exhaustive search for documentation completed before submitting the application can help the asylum-seeker and her attorney to assess the strength of the claim before filing.
20.9 Translation of Documents
All foreign language documents must be translated into English or they will not be accepted by the Asylum Office or the Court. Anybody but the applicant herself who can swear that she is competent in English and the foreign language can do the translation and sign the certificate of translation. There is no requirement that the translator have any professional training in translation; she must simply be able to certify in a notarized certificate that she is competent to render the translation.
There is no rule prohibiting the attorney of record form certifying translations. Whenever a foreign language document is being submitted the entire document must be translated, not just the relevant sections.
Every foreign language document must have its own certificate of translation attached. For each exhibit, you should attach, first the English version, then the foreign language version, then the certificate of translation.
An example of a typical translation certificate follows:
20.9.1 Sample One – Certification of Accurate Translation
I, Rita Garcia hereby certify that I translated the attached document from Spanish into English and that to the best of my ability it is a true and correct translation. I further certify that I am competent in both Spanish and English to render and certify such translation.
Sworn to before me this 7th day
of September 2005
» Practice pointer: Sometimes, if the applicant is fluent in English and his native language, you can ask the applicant to do the translations himself (since he may have more time to spend on this then staff in your office) and you can then have a third party who is fluent in both languages review the translation and submit a Certificate confirming that she has reviewed the translation and the translation is accurate.
An example follows:
20.9.2 Sample Two – Certification of Accurate Translation
I, Rita Garcia hereby certify that I reviewed the attached documents and that to the best of my ability I certify that the English translation of the Spanish document is true and accurate. I further certify that I am competent in both English and Spanish to render and certify such translation.
Sworn to before me this 7th day
of September 2005
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.
- According to the Regulations, an applicant’s credible testimony, without corroboration, is considered sufficient tomeet the burden of proof. 8 C.F.R. 208.13(a). Also see In Re S-M-J, Int. Dec. 3303 (BIA 1997), In Re B, Int. Dec. 3251 (BIA 1995). ↩