Reconciling Expectations with Reality: The REAL ID Act’s Corroboration Exception for Otherwise Credible Asylum Applicants

Alexandra Lane Reed*

The international community finds itself today in the throes of the largest refugee crisis since World War II. As millions of refugees continue to flee violence and persecution at home, the immediate concern is humanitarian, but in the long-term, the important question becomes: What are our obligations to those who cannot return home? U.S. asylum law is designed not only to offer shelter to legitimate refugees, but also to protect the country from those who seek asylum under false pretenses. Lawmakers and policymakers have struggled to calibrate corroboration requirements for asylum claims with the reality that many legitimate asylum seekers may not be able to obtain such corroboration. Prior to Congress’s passage of the REAL ID Act (“REAL ID”) in 2005, no single standard governed the circumstances in which an immigration judge (IJ) could require an asylum applicant to provide extrinsic evidence to corroborate credible testimony. Though REAL ID established that asylum applicants usually must provide corroborating evidence whenever an IJ decides to require it, Congress created an exception for otherwise credible applicants who do not have such evidence and cannot reasonably obtain it. The circuits disagree, however, as to whether IJs must tell asylum applicants, before a decision is rendered, if they will be required to provide corroborating evidence and what sort of evidence they will need to provide. This Note argues that 8 U.S.C. § 1158(b)(1)(B)(ii) reveals an unambiguous congressional intent to require an IJ to give asylum applicants advance notice of the evidence deemed necessary to corroborate otherwise credible testimony. It further contends that this advance notice must specify the type of corroboration expected, in order to give applicants who cannot reasonably obtain corroborating evidence a meaningful opportunity to avail themselves of the corroboration exception.

*J.D. Candidate, May 2017, University of Michigan Law School. Many thanks to Professor Nicholas Bagley and the Michigan Law Review Notes Office, especially Danielle Kalil-McLane, for their comments on earlier drafts of this Note. And, as always, thanks to my parents, Kim and Lane, my brother, Elliott, and my husband, Jamie, for their love and support.

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