Asylum, 8 U.S.C. §§ 1158(a), 1101(a)(42)
The “Real ID Act of 2005" was signed into law (Pub. Law No. 109-13) on May 11, 2005, as Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, and became effective on the date of enactment.
(Sec. 101) Amends Immigration and Nationality Act (INA) provisions concerning asylum to: (1) authorize the Secretary of Homeland Security, in addition to the Attorney General, to grant asylum (retroactive to March 1, 2003); (2) require asylum applicants to prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be (if removed) the central reason for their persecution; and (3) provide that an applicant's testimony may be sufficient to sustain this burden of proof only if the trier of fact determines that it is credible, persuasive, and fact-specific. Requires corroborating evidence where requested by the trier of fact unless the applicant does not have the evidence and cannot reasonably obtain it without departing the United States. States that the inability to obtain corroborating evidence does not excuse the applicant from meeting his or her burden of proof.
Lists factors relevant to credibility determinations in asylum cases, including (but not limited to) the: (1) demeanor, candor, or responsiveness of the applicant or witness; (2) inherent plausibility of the applicant's or witness' account; (3) consistency between the applicant's or witness' written and oral statements; (4) internal consistency of each such statement; (5) consistency of such statements with other evidence of record (including the Department of State's reports on country conditions); and (6) any inaccuracies or falsehoods in such statements regardless of whether they go to the heart of the applicant's claim. States that there is no presumption of credibility.
Makes this Act's provisions regarding proof requirements and credibility determinations in asylum proceedings applicable to other requests from relief for removal.
Limits judicial review of determinations regarding the availability of corroborating evidence.
Removes the numerical limit on the number of aliens granted asylum who may become lawful permanent residents in any fiscal year (currently set at 10,000).
Asylum is strictly a discretionary form of relief. To qualify for asylum, an alien must demonstrate a well grounded fear of persecution upon return to the country of such person's nationality on account of race, religion, nationality, membership in a particular social group, or political opinion. An application for asylum is deemed also to constitute an application for withholding of deportation (discussed below). An alien who has been convicted of an aggravated felony may not apply for or be granted asylum. 8 U.S.C. § 1158(d). Moreover, an asylum application must be denied if the alien having been convicted by a final judgment of a particularly serious crime in the United States, constitutes a danger to the community. 8 C.F.R. § 208.14.
To be successful on an asylum claim, the alien must prove: (1) that he or she has a well-founded fear of persecution or has suffered past persecution; (2) that such persecution is because of race, religion, nationality, membership in a particular social group or political opinion; and (3) that asylum should be granted in the exercise of discretion.