REAL ID has REAL IMPACT

June 2005

On May 11, 2005, President Bush signed the REAL ID Act into law, over the objections of advocates for asylum seekers and immigrants. Church World Service was among scores of organizations that fought the Act, in particular provisions that will make it more difficult for legitimate asylum seekers — people fleeing political, religious, and other persecution — to find safe haven in the United States.

Proponents claim the new Public Law 109-13 will help prevent terrorists from getting asylum, but opponents counter that existing law already barred anyone who may reasonably be considered a danger to U.S. security.

The new law does include two pieces of good news for asylum seekers and asylees. It eliminates the caps on:

• The number of asylees per year that can get lawful permanent residence. Before, only 10,000 asylees per year could adjust to permanent status, resulting in waits of up to 15 years for asylees to adjust status.
• Asylum for persons resisting coercive population control methods, such as involuntary sterilization. The old cap was 1,000 per year.

But other provisions of The REAL ID Act are chilling. They allow judges and asylum officers to deny an asylum claim based on:

• Minor inconsistencies in testimony that have nothing to do with the asylum claim. For example, the asylum application requires that applicants list all home addresses in the past five years and every school ever attended, including the dates spent at each. At the asylum hearing months, sometimes even years, later, an applicant might not recall these details exactly. An applicant who forgets the exact dates she attended primary school could have her application rejected.
• Inconsistencies between the airport interview and subsequent testimony. Airport interviews are notoriously poorly translated and recorded. Asylum seekers may arrive exhausted, may be shackled, and often have no idea why they are being questioned.
• The applicant’s “demeanor.” When applicants recount their experiences, they might not show the emotions a judge expects. Some trauma survivors might have a “flat affect,” and in some cultures it is not polite to look an authority figure in the eye. While the new law requires judges to consider “the totality of the circumstances,” they may reject a claim based on their reading of an applicant’s body language.
• The claim’s “inherent plausibility.” This means a judge can decide that an asylum seeker’s story is implausible even if the applicant offers specific, detailed, uncontested testimony. But what may strike a judge as “inherently implausible” may be quite true. Asylum applicants often have unusual, amazing stories of escape.

For example, said CWS/IRP Legal Programs Supervisor Jennifer Guilfoyle, a former client of hers had been a slave for her entire life. “Part of the reason that she was able to finally run away to freedom was that the slaveowner’s son secretly taught her to speak and read basic French,” she said. “No one else knew she was learning French. She thinks everyone thought the young man was raping her.

“Under The REAL ID Act, the judge might well have found her story ‘inherently implausible’ and denied her asylum, even though her testimony was detailed and specific and she offered other evidence to corroborate her story,” Guilfoyle said.