Scraps From The Table: Positive Changes To REAL ID Made By The House And Senate Conferees
Conferees from the House and Senate agreed to include the REAL ID Act in HR 1268, the massive supplemental appropriations bill, although they made a few subtle and not-so-subtle modifications. Obviously, asylum seekers and immigrants should welcome the decision to toss the REAL ID provisions that would have eliminated stays of removal and outsourced liberty decisions to unaccountable bond agents. On the other hand, they, and every other American, should fear the broad new "terrorism" definition and the dismantling of our constitutional system of checks and balances. The focus of this article, however, is on the more subtle changes to the asylum and credibility provisions. The changes take much of the bite out of these provisions.
A. Clarification of "Central Reason" for Persecution
The conferees modified the proposed new central reason requirement to clarify that a persecutor may have more than one central reason for his or her acts and that only one central reason need coincide with a statutorily protected ground.
The version of REAL ID originally passed by the House required proof that a statutorily protected ground "was or will be a central reason for persecuting the applicant." The use of "a central reason" rather than "the central reason" hinted that there could be more than one central reason. However, "central" is commonly defined as "of the greatest importance." New Oxford American Dictionary 278 (2001). There can only be one reason that is of the greatest importance, so under that definition there could be only one central reason The Department of Homeland Security might very well have taken a position in support of the latter definition, thus resulting in years of litigation.
The conferees clarified the provision by changing "was or will be a central reason" to "was or will be at least one central reason." The "at least one" language more plainly indicates the possibility of having more than one central motive. Thus, under REAL ID, an asylum applicant would have to prove that a statutorily protected ground was more than a minor or tangential reason for the persecution, but would not have to prove that it was the primary reason above all others.
B. No Transformation of Factual Determinations into Unreviewable Discretionary Determinations
The conferees removed troublesome language that could have been construed to eliminate judicial review over credibility determinations. The original version of REAL ID used the phrases "in the trier of fact's discretion" and "in the judge's discretion" in reference to determinations of credibility. Section 242(a)(2)(B)(ii) of the Immigration and Nationality Act prohibits judicial review of decisions "the authority for which is specified under this title to be in the discretion of the Attorney General, other than the granting of [asylum]." Together, these two sections arguably could have eliminated judicial review over credibility determinations because credibility determinations would be discretionary decisions over which the courts had no jurisdiction. Even in asylum cases, a credibility determination strictly speaking is not a decision to grant asylum, but rather a preliminary determination made before reaching the decision to grant asylum as a matter of discretion. Thus, the courts arguably would not have had jurisdiction over credibility determinations in asylum cases either. Fortunately, the conferees struck the language, so credibility remains an issue of fact amenable to judicial review (at least where REAL ID has not otherwise stripped the courts of jurisdiction).
C. No Arbitrary Credibility Determinations
The credibility provisions agreed upon by the conferees eliminated language that would have sanctioned arbitrary decision-making. That language, in sections 101(a)(3) and (c)(2), would have permitted the trier of fact or judge to base an adverse credibility determination on "any" relevant factor. An adverse credibility determination could thus rest solely on a minor inconsistency that did not go to the heart of the claim even if the entire weight of the evidence militated in favor of finding the applicant credible. The version of REAL ID agreed upon by the conferees removed that phrase. Now, an adverse credibility determination must consider the totality of the circumstances. To be sure, REAL ID still permits consideration of inconsistencies and falsehoods that do not go to the heart of the case. Logically, though, such inconsistencies and falsehoods cannot carry much weight in the totality of the circumstances, if any. If an inconsistency or falsehood carries little weight, it cannot constitute substantial evidence in support of an adverse credibility determination. Therefore, the changes to REAL ID's credibility provisions essentially result in a codification the status quo.
D. No Presumption of Credibility Unless No Explicit Adverse Credibility Determination Was Made
Regarding the presumption of credibility, the conference modifications again codify the status quo. Sections 101(a)(3) and (c)(2) state that "[t]here is no presumption of credibility," just as in the original version of REAL ID. Now, however, that provision curiously precedes another that proclaims, "[I]f no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal." This is only minimally distinguishable from the precedent of the courts that currently presume credibility, which only do so in the absence of an explicit adverse credibility determination. REAL ID admittedly does provide the government with an opportunity to rebut the presumption of credibility on appeal. The opportunity to rebut, though, should only apply to "appeals" to the Board of Immigration Appeals ("BIA") and not to "petitions for review" to the circuit courts. The BIA already has the authority make an adverse credibility determination where the immigration judge did not do so. REAL ID accordingly changes little.
In sum, the efforts of a broad array of organizations, from the Southern Baptists to the ACLU, succeeded in convincing the House and Senate conferees to minimize REAL ID's most offensive changes to asylum and credibility. Therefore, REAL ID will most likely be remembered only as the law that turned pure speech and association into terrorism and that withdrew the protection of habeas for the first time since the civil war.
Scott Mossman is a graduate of the School of Law at the University of California, Davis, where he finished in the top five percent of his class. He practices immigration law in Oakland, California, with an emphasis on appellate work. He participates in the Constitutional Rights Coalition, a San Francisco-based coalition of organized labor, immigrant rights, and civil liberties groups, on behalf of the Immigrant Legal Resource Center. This article does not necessarily represent the views of the Constitutional Rights Coalition or the Immigrant Legal Resource Center. Scott Mossman can be reached at: firstname.lastname@example.org.
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