In removal proceedings, specifically when the respondent (the person the government is seeking to remove from the United States) is applying for asylum, it is the respondent’s obligation to prove his or her eligibility for relief and to present evidence to support the claim. While it is possible to be granted asylum based solely on the credible testimony of the respondent, the presentation of evidence to corroborate the testimony is essential to improve the chances of success. Any competent attorney should know this and should make all efforts to present corroborating evidence prior to the final hearing date and to document and explain why some desirable evidence is not available.
For instance, if a person applying for asylum testifies that she was assaulted, filed a police report and went to the hospital for treatment, it would be the best practice to obtain a copy of the police report and hospital records to present to the court. If the hospital records are not available, for instance because the hospital is no longer operational, that information should be documented and presented to the court.
In many circumstances, the failure to present corroborating evidence will be fatal to the case. In some situations, an immigration judge may question why no corroborating evidence was presented and allow the respondent additional time to gather and present that evidence, or provide an explanation of why it is not available, prior to making a decision in the case.
Whether or not a court must provide a respondent such an opportunity to provide corroborating evidence when the court believes the absence of the evidence would be harmful to the respondent’s case is a question that seven of the circuits courts of appeals have decided. In the Third and Ninth Circuits, such a requirement exists. In the Second, Sixth, Seventh and Eighth Circuits, no such requirement exists.
On April 3, 2020, the Fifth Circuit Court of Appeals decided Avelar-Oliva v. Barr, and joined the four circuits holding that an immigration judge need not provide a respondent the opportunity to gather corroborating evidence prior to holding the absence of such evidence against the respondent.
This is an important issue that often determines the outcome of a case. However, when a skilled and knowledgeable attorney is presenting the application to the court, it should never be an issue because the attorney should be able to anticipate which documents should be available, which documents would be helpful to the case, and which documents will not be available and why. Such an attorney will always present these documents and explanations to the court before a final hearing. On the other hand, when a case is not properly prepared, especially for a respondent representing him or herself, the opportunity and direction from the court likely will determine whether the sought-after relief is granted or not.
For the time being, until the United States Supreme Court addresses the issue, the rules will be different depending where the court is being held. Because of requirements and rules like these, it is essential that anyone in removal proceedings hire an experienced and successful Jersey City immigration lawyer to help prepare and present the case.
The asylum lawyers at the Law Office of Eric M. Mark in Jersey city have handled hundreds of cases, including asylum and other forms of relief, before the immigration courts, the Board of Immigration Appeals and before the circuit courts. If you are in removal proceedings, call to discuss your case.