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On May 11, President Bush signed an $82 billion emergency appropriations bill into law, which funds military activities in Iraq and Afghanistan, and tsunami relief. The House of Representatives tacked another controversial bill — the REAL ID Act (H.R. 418) — onto the emergency legislation. The REAL ID Act makes it harder for people to gain asylum from repressive regimes, includes punitive immigration provisions and imposes rigid and unworkable federal mandates on state governments for the issuance of drivers’ licenses. The act is a mean spirited measure that rests at its core on the view that America should turn its back on its historic commitment to justice, fundamental fairness and those fleeing oppression. The act’s provisions are ill-conceived, do not address the problems they purport to ameliorate and have survived scrutiny only because the Act’s proponents circumvented the procedural safeguards that exist to ensure legislation is properly vetted. Many senators vigorously opposed attaching the REAL ID Act to emergency legislation. Sen. Dianne Feinstein, D-Calif., argued “an emergency supplemental is not the place for the Congress to enact substantive immigration provisions.” Sen. Sam Brownback, R-Kan., and Sen. John McCain, R-Ariz., urged Sen. Majority Leader Bill Frist to keep the sweeping “anti-immigration” proposal off the supplemental appropriations bill. Despite this vocal opposition, majority leaders in the Senate rammed the provisions through without debate. Sen. Feinstein stated in a press release two days before the spending bill became a law, “voices of opposition to the REAL ID Act were all but silenced.” This denial of an opportunity for debate merely underscores the illegitimacy of the REAL ID Act. More significantly, it illustrates that our leaders have lost respect for the deliberative process through which laws should be made — the very essence of a free and fair society.
One of the most troubling aspects of the act involves asylum law. An individual fleeing persecution or torture may establish eligibility for asylum by showing a well-founded fear of future persecution on account of race, religion, nationality, membership in particular social group or political opinion. An applicant who has established past persecution is entitled to a rebuttable presumption that she has a well-founded fear of future persecution. The REAL ID Act makes it harder for individuals fleeing persecution to establish eligibility for protection. The Act permits immigration judges to deny relief to victims who cannot produce corroborating evidence of the persecution they experienced, who provide inconsistent testimony on minor facts irrelevant to their claim, or whose demeanor is inconsistent with a judge’s expectations of how one who has suffered beatings or torture should behave. In addition, the act requires an individual seeking asylum to prove that her protected characteristic was “central” to her persecutor’s decision to inflict harm. Thus, if someone living in the former Soviet Union is attacked, told to “go to Israel” and then robbed, that individual must prove that at least a central reason for the attack was bias rather than robbery. Yet, it is unreasonable to expect an asylum applicant to recount the horrors of her experience in flawless detail, especially when she has suffered trauma, incarceration or other ill effects of persecution. See Singh v. Gonzales, 403 F. 3d 1081, 1091 (9th Cir. 2005) (“The phenomenon of poor date recollection is often particularly evident in the culturally diverse and trauma-filled setting of refugee claim adjudication”). It is equally unfair to require an individual who has fled persecution to produce documentary evidence in support of her claim. See Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir.2004) (stating that a document was not easily available because it was in China, and noting that corroboration from relatives outside the United States is almost never easily available); Bellido v. Ashcroft, 367 F.3d 840, 844 (8th Cir.2004) (“It is often impossible for an asylum applicant to obtain corroborating evidence from his home country.”). Imposing a “centrality” requirement is also a major step backwards in evolving jurisprudence, which recognizes that direct proof of a persecutor’s motive is often unavailable. Ramirez-Rivas v. INS, 899 F.2d 864, 869 (9th Cir. 1990) (“Evidence of the motive of the persecutor is hard to come by.”). Organizations representing the full political spectrum expressed concern about the destructive and potentially dangerous aspects of many of the REAL ID Act’s provisions. These concerns fell on deaf ears. American Bar Association: “The REAL ID Act would make broad-ranging changes to our immigration and asylum laws, which would, in many cases, adversely affect genuine refugees. In addition, these proposals have not had the benefit of congressional hearings or debate.” Coalition of Asian Pacific American Organizations: “Approximately 60 percent of the Asian Pacific American community was born outside the United States . . . We find it entirely inappropriate that a bill which will harm the Asian Pacific American community in so many ways has been attached to a bill that our community cares so much about [the tsunami relief package].” Coalition of Faith-Based Organizations: “We are deeply troubled that Section 101 [of the Act] could adversely affect such faith groups as Jews departing anti-Semitic persecution in parts of Europe and the former Soviet Union, Christians fleeing China, Burma and the Middle East, or Muslims seeking protection from dictatorial regimes in Africa.”
Two cases illustrate the real world impact the REAL ID Act will have on refugees. Reina Garcia-Martinez fled Guatemala after soldiers arrived in her village and gang-raped her and other women. During her asylum hearing, the government argued the soldiers systematically raped women to satisfy their “violent carnal desire.” In a published opinion, the Ninth Circuit reversed the asylum denial, remarking that Garcia-Martinez had “survived atrocities that most of us experience only in our worst nightmares” and that “persecution is stamped on every page of this record.” The opinion recognized several key principles that went a long way in protecting the rights of women victims of persecution. The REAL ID Act erodes several of those principles. Another refugee, Farah Taha, fled Sudan after he was tortured by government officials because of his political views. During Taha’s asylum hearing, the immigration judge made little effort to hide her feelings, remarking Taha was in “comic land” when he testified about forced starvation of children by the Sudanese government. Taha submitted photographs of scars on his body, visible evidence of scars, a physician’s letter documenting torture and country condition reports describing the Sudanese government’s use of torture to subjugate political opponents. The judge ignored this objective evidence and found Taha lacked credibility because his hearing testimony was more detailed than his asylum application. The Ninth Circuit reversed, stating that omissions in an asylum application cannot doom an applicant’s claim. The court recognized that individuals who have fled persecution often lack legal representation, do not speak English, and find it difficult to reveal the humiliating details of torture in an initial application. The REAL ID Act allows immigration judges to deny asylum based on minor inconsistencies between an asylum application and hearing testimony. As these cases illustrate, the practical effect of the REAL ID Act will be to facilitate deportation of genuine persecution victims to countries where they may be killed or tortured. It is ironic, to say the least, that Congress passed the act only months after the close of the Decade for Human Rights Education (1995-2004). That campaign represented an opportunity to mobilize all strata of society in a reinvigorated and broad-based human rights movement. Though concerned citizens in this country mobilized a protest against the REAL ID Act, our leaders were unmoved. That is a sad commentary on how our country values human rights. Jayne E. Fleming is an appellate attorney in the Oakland office of the international law firm Reed Smith. Last year, she successfully represented asylum seekers in Garcia-Martinez v. Ashcroft, 371 F. 3d 1066 ( 9th Cir. 2004)a victory which earned her a “California Lawyer Attorney of the Yearaward — and Taha v. Ashcroft, 389 F. 3d 800 ( 9th Cir. 2004).

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