Maybe You Should, Yes You Must, No You Can'T: Shifting Standards and Practices for Assuring Document Reliability in Asylum and Withholding of Removal Cases

Abstract:     
As the demand for corroborating evidence for asylum cases rises, the reliability of that evidence takes on increasing importance. This EXPANDED VERSION of the article addresses how the reliability of documentary evidence is evaluated at the various levels of the asylum process, and also examines the history of how this regime came into being.

NEW in the expanded version is a detailed discussion of the history of the immigration authentication rule (8 C.F.R. § 287.6) in the context of two regimes of standard formation: the creation of federal rules of evidence and civil procedure; and the history and development of two international treaty regimes: the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents and the Convention Relating to the Status of Refugees. Such a history demonstrates two interrelated trends: (1) that legacy INS and its successors have been slow to adopt best practices developed by U.S. and international bodies over decades of practical experience; and (2) the development of the immigration document authentication rule in the immigration context has failed to take into account special concerns raised by asylum claims.

The article also summarizes the current state of affairs when it comes to how various adjudicators view the reliability of documentary evidence, such as whether or not an applicant for asylum must strictly adhere to the immigration document authentication regimes. In the Maybe You Should camp, Asylum Offices and some federal circuits courts of appeals do not require strict adherence to the immigration rules of authentication. In the Yes You Must camp, some immigration judges and some federal circuit courts support exclusion of evidence if authentication rules are not strictly followed. Finally, the State Department says that if you are an asylum applicant than No You Can't directly verify documents with investigations through consular offices overseas.

Keywords: Immigration law, asylum, evidence, refugee, treaty, hague convention on foreign documents, apostille, refugee convention, evidence, document authentication, document reliability, forensic document examination

JEL Classifications: K33

Accepted Paper Series