Applicant’s Evidence In Asylum Case
05 June 2023Author: New York Asylum Lawyer Alena Shautsova
Asylum is one of the most common reliefs from removal a person in Immigration court proceedings will be filing for. Hundreds of thousands of persons who are willing to or are forced to come to the US used the Biden’s administration’s innovative CBPOne App for border crossing since its launching in February of 2023. And the absolute majority of these people will be filing for asylum in the US since all of them are immediately placed in removal proceedings (upon arrival to a CBP point of entry), and asylum often is the only possible relief from removal they can hope for.
But the absolute majority of these people is not prepared for the next step that awaits them: the complexity of the US Asylum Immigration laws, necessity to be familiar with the US Immigration procedures, rules of evidence and practice. The knowledge of all is a must for someone who is facing the Immigration court machine.
Here, we will describe the most commonly used evidence in asylum cases, and how to present it.
First, all the evidence can be divided into two groups: witnesses’ testimony and paper evidence.
Witnesses
The first witness and the main witness for any asylum case will be the applicant him/herself. An asylum applicant first gives his/her testimony on the form of I 589, and the declaration, and then in person during the Individual hearing. While the form I 589 may contain only short, concise answers to the questions, an applicant statement is a document that should tell the full story. This document should be written in the language the applicant is most comfortable with. From the technical point of view: it is best if it is written in the applicant’s native language, should be signed by the applicant and dated (the date of the signature should be recorded on the document), and afterwards it should be translated into English and accompanied by a certificate of translation according to the Immigration rules in the USA. An applicant may supplement his/her statement after it is submitted to court, but all material changes needs to be thoroughly explained.
The applicant likewise can use testimony of witnesses to the events he/she is describing. Such witnesses can come to court on the date of the trial, but in every case will have to submit written account of what they know/can testify about. Their testimony also should be written in their native language and accompanied by the certified English translation. The witnesses do not have to be present in court, but can be, if possible. They can submit their testimony even if they are overseas.
As applicant’s, a witness’s statement should be submitted in the form of a declaration made under the penalties of perjury pursuant to 28 U.S. Code § 1746. For that, all that is needed is that these words should be added to the document:
- (1)If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)". - (2)If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).”
Finally, an expert may give his/her expert witness testimony. Such a testimony is very helpful for the court if relevant, and is often used to prove a possibility of future harm if the applicant is returned to his/her home country. An expert report’s with their CV is usually submitted prior to the individual hearing.
Documents
Documents present another important group of evidence that can be used in asylum cases. The strict rules of evidence that Federal courts are bound by do not apply in Immigration proceedings. The general rule with respect to evidence in immigration proceedings favors admissibility as long as the evidence is shown to be probative of relevant matters and its use is fundamentally fair so as not to deprive the alien of due process of law. Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980)), Matter of Toro, 17 I&N Dec. 340 (BIA 1980); Matter of Lam, 14 I&N Dec. 168 (BIA 1972); Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983); Tashnizi v. INS, 585 F.2d 781 (5th Cir. 1978); Trias-Hernandez v. INS, 528 F.2d 366 (9th Cir. 1975); Marlowe v. INS, 457 F.2d 1314 (9th Cir. 1972). Hearsay is admissible, but its admission must be probative and not fundamentally unfair. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823-24 (9th Cir. 2003); Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir. 2001); Bustos-Torres v. INS, 898 F.2d 1053 (5th Cir. 1990).
Now, it means that pretty much anything that may help an asylum applicant to provide his/her case can be presented in court. But it has to be in the form of a document. Videos, or electronic files cannot be added to the case. But video screenshots and transcripts can be. Documentary evidence may include official documents: copies of subpoenas, medical records, protocols, notes containing threats, news articles, reports, etc. Each document not in English or containing words not in English must be accompanied by a certified English translation. Documents do not need to be notarized, or accompanied by an apostille, unless an issue of authenticity is raised. It is best if the applicant is in possession of the originals (actual documents that he/she received, submitted, etc.) copies of which he/she is submitting to court, but f the originals are not available, courts usually accept copies, unless again there is a question of authenticity.
Country conditions reports is an important part of applicant’s documentary evidence. Such reports help to establish an applicant’s eligibility for asylum either confirming applicant’s past persecution or possibility of future persecution. A good source of country conditions will be the Department of State Human Rights Reports, Human Rights Watch reports, International Religious Freedom reports by the Department of State. Here you can also research a compilation of various sources by topic and country: Country Conditions Reports.
If you need help with asylum case, please call to book an appointment at 917 885 2261 or book your appointment online.