Maryland Bar Bulletin
Publications : Bar Bulletin : August 2009

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The United States immigration laws allow eligible foreign nationals who are present in the United States and fear returning to their native country due to their fear of future persecution or as a result of past persecution suffered in their native country to seek protection or asylum in the United States. A person is eligible for a grant of asylum if she can prove that she was persecuted or will be persecuted in her home country based on her (i) race, (ii) religion, (iii) nationality, (iv) political opinion, and (v) membership within a particular social group. A grant of asylum status in the United States provides the applicant with the opportunity to live in the United States indefinitely, the ability to work legally in the United States, and, within one year of receiving the asylum status, the opportunity to become a lawful permanent resident of the United States. The application for asylum is first filed with the asylum office. If the asylum office does not grant the application, the applicant is then referred to the Immigration Court and is placed in what is called immigration removal proceedings. At the immigration removal proceedings, the applicant has the opportunity to re-submit her application for asylum before an Immigration Judge.

THE OVERSEAS
investigations, which are carried out by the U.S. Department of State, seek to authenticate and verify specific documents, which include but are not limited to birth certificates, arrest warrants, prison reports, medical certificates or political membership cards.

Since the terrorist attacks of September 11, 2001, the United States government has increased the monitoring of foreign nationals seeking asylum in this country. In an effort to protect and preserve the integrity of the asylum process as well as to protect those with legitimate asylum claims, the government is aggressively investigating the claims of asylum applicants. One way in which the government investigates the legitimacy of an applicant’s claim is through overseas investigations reports. Overseas investigations reports focus on the authenticity of documents purportedly originating in foreign countries that are submitted by the applicant in support of his or her persecution claim. The overseas investigations, which are carried out by the U.S. Department of State, seek to authenticate and verify specific documents, which include but are not limited to birth certificates, arrest warrants, prison reports, medical certificates or political membership cards. Although these investigations are conducted by the Department of State, and its findings are submitted on official government letterhead, it is prudent and zealous advocacy for immigration defense counsel to challenge the reliability or trustworthiness of the information contained in the report. This is important because allegations that an applicant submitted fraudulent documents in connection with her asylum application can adversely affect her credibility and the credibility of her entire claim for asylum. The government is not required to comply with either the requirements of the federal rules of evidence or the heightened procedural protections of a criminal trial when seeking to have overseas investigations reports admitted in removal proceedings, and immigration defense counsel must make sure that the evidence submitted by the government does not violate the applicant’s right to due process of law. In the immigration law context, evidence is admissible if it is probative and if its use is fundamentally fair, which means that the evidence must be reliable and trustworthy.

When the government submits in an asylum hearing a report of an investigation concerning the authenticity of a document, sufficient proof must be present to allow the Immigration Judge to determine the investigation’s reliability and trustworthiness without surrendering that function to the author of the report. The reliance on reports of investigations that do not provide sufficient information about how the investigation was conducted are fundamentally unfair and unreliable because, without that information, it is nearly impossible for the immigration court to assess the report’s probative value and the asylum applicant is not allowed a meaningful opportunity to rebut the investigation’s allegations.

An effective report should contain at a minimum (i) name and title of the investigator, (ii) a statement that the investigator is fluent in the relevant language(s) or that he or she used a translator who is fluent in the relevant language(s); (iii) any other statements of the competency of the investigator and the translator deemed appropriate under the circumstances; (iv) the specific objective of the investigation; (v) locations of any conversations or other searches conducted; (vi) the name(s) and title(s) of the people spoken to in the course of the investigation; (vii)the method used to verify the information; (viii) the circumstances, content, and results of each relevant conversation or search; and (ix) a statement that the Service investigator is aware of the confidentiality provisions found in 8 C.F.R. Section 208.6, which, in summary, provides that during its investigations of asylum applications, the government must not disclose the identity of the applicant or submit to the “persecuting” country information contained in or pertaining to any asylum application without written consent of the applicant. 

Edward Neufville, III, is the managing attorney of The MoraisNeufville Law Firm, LLC, in Silver Spring, Maryland. He concentrates his practice in complex immigration litigation.



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Publications : Bar Bulletin: July 2009

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