The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

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One of the greatest fears that an asylum adjudicator has is that the applicant has fabricated their story and that nothing they are saying is actually true.

It is therefore essential to provide as much supporting documentation as possible to corroborate the applicant’s claim. 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 their country of origin, and they may not be in touch with family members or friends there anymore. It is therefore important to begin brainstorming with the applicant almost immediately about what kind of corroborating documentation they will be able to provide.

Pursuant to the Real ID Act of 2005, asylum applicants are 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 (PSG)

20.2.1 For LGBTQ Applicants

• Affidavits/letters from the applicant’s current and/or former partner(s) to establish sexual orientation and/or gender identity.
• Affidavits/letters from the applicant’s family member(s) or close friends who are aware of the applicant’s sexual orientation and/or gender identity.
• Photographs of the applicant with their partner or former partner(s).
• Letters from LGBTQ rights or advocacy 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,” gender identity, and/or or other LGBTQ-specific issues. But be careful: letters corroborating an existing therapeutic relationship can be helpful, even if the therapist can only recount what the applicant has indicated during prior meetings. Seeking a “one-off” or “for litigation purposes only” letter or affidavit wherein a therapist “confirms” sexual orientation and/or gender identity runs dangerously close to medicalizing LGBTQ/H persons, which the advocacy community has worked hard to move the discourse away from.

20.2.2 For Transgender Applicants

• Affidavits/letters from medical and/or mental health professionals describing any steps the applicant has made in “transitioning.”

20.2.3 For Applicants Living with HIV

• 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 them 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 their 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 their sexual orientation, gender identity, and/or HIV status, 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, OutRight Action International, or other local human rights or LGBTQ/H rights organizations;
• Newspaper or other media stories of human rights abuses against LGBTQ/H individuals in the country of origin.
• Expert affidavits on country conditions. Note that such affidavits are generally only required in defensive proceedings—or in affirmative proceedings where esoteric issues cannot be confirmed with other documentation.

20.5 One-Year Filing Deadline

• I-94 and/or stamped passport. If the applicant is filing within one year of their last entry into the United States and they entered with inspection, they should submit a copy of their I-94 and/or stamped passport as proof of the date of entry. Even if they entered using a fake passport, they should submit a copy of that document, if they still have it, because it is important evidence of their entry date.
• Other proof of date of entry. If the applicant is filing within one year of their last entry but entered without inspection, they should provide documentary evidence that proves they were 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 that justify an exception to the filing deadline. This documentation 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 they were never convicted of anything, or even if the case was dismissed and sealed, they 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 or hearing your client must have original, certified dispositions to give to the Asylum Officer or Immigration Judge.

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 LGBTQ/H or other community organizations in which the applicant participates.
• Proof that the applicant has a partner who relies upon them, 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 LGBTQ/H status should include: 1) the approximate date when the family member or friend first learned of the sexual orientation, gender identity, or HIV status of the applicant, and/or the relationship between the applicant and their partner; 2) how long the family member or friend has known the applicant or partner, and; 3) any LGBTQ/H-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 Immigration Judge (IJ) 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 IJ may or may not admit the affidavits. In general, and as discussed in Chapter 27, 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.

In an application for asylum before the immigration court, the Immigration Judge (IJ) 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 IJ may or may not admit the affidavits. In general, and as discussed in Chapter 27, 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.

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 immigration court. Anybody but the applicant who can swear that they are 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; they must simply be able to certify in a notarized certificate that they are competent to render the translation.

Although it is not preferred, 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.

Two examples of a typical translation certificate follow:

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.

_________________________________ Rita Garcia Sworn to before me this 7th day of September 2005

_________________________________ Notary Public

» Practice pointer: Sometimes, if the applicant is fluent in English and their native language, you can ask the applicant to do the translations (since they may have more time to spend on this than do the 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 they have reviewed the translation and that 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.

_________________________________ Rita Garcia Sworn to before me this 7th day of September 2005

_________________________________ Notary Public

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.

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The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.