You thought it was bad news
that the REAL ID Act allows illegal aliens (that is,
anyone with a "pending application for adjustment of
status") to obtain "temporary" state driver`s
Unfortunately, there`s worse.
in August 2002.
So much so that when it comes
to asylum, the Department of Justice`s Executive Office
for Immigration Review (EOIR) will become the
laughingstock of every court in the land.
Under REAL ID, aliens
applying for asylum in EOIR Immigration Court will now
be given a "rebuttable presumption of credibility"
when their cases are reviewed on appeal before the
EOIR`s appellate body, the Board of Immigration Appeals
(BIA)—and also later when the endless litigation
proceeds to the federal appellate courts.
Here`s the new REAL ID asylum
standard: unless an EOIR immigration judge explicitly
finds that an alien has lied in court, or has given
completely non-credible testimony, the reviewing court
(the BIA) will assume that the alien was telling the
truth—even if the EOIR immigration judge didn`t make any
findings one way or another about the alien`s
immigration lawyers cheering for this provision.]
Before REAL ID, the standard
for reviewing cases on appeal at the BIA was set forth
in 8 C.F.R. part 1003.1 (d)(3)(i) as part of EOIR
regulations implemented by former Attorney General
"Scope of review. (i)
The Board will not engage in de novo review
[starting anew] of
findings of fact determined by an immigration judge.
Facts determined by the immigration judge, including
findings as to the credibility of testimony, shall
be reviewed only to determine whether the findings of
the immigration judge are clearly erroneous." (Revised
67 FR 54878)."
Note that under the Ashcroft
regulations currently in effect, the BIA cannot make any
assumptions that aliens were telling the truth in their
But now under REAL ID, once
the BIA exercises its newfound powers to assume asylum
applicants are "credible" on appeal, the BIA`s
findings on credibility will be passed on as if set in
stone when the aliens and their lawyers bring the
endless litigation on to the federal appellate courts .
. . or even to the U.S. Supreme Court.
Consider the big picture
here. No appellate court in the United States would even
dream of operating under such a ridiculous standard of
assuming the credibility of a criminal defendant, or a
litigating party in a civil case.
I.E. you are presumed innocent until proven
guilty, but not afterward!]
In effect, illegal aliens
have rights that American citizens do not.
But then again, the
Immigration Act and the
federal litigation bureaucracy of the EOIR have been
rigged by the Treason Lobby in favor of illegal aliens
and criminal alien residents for years now.
Whodunnit? And how could this
travesty happen to the REAL ID Act—touted as a
"tough" immigration bill? [PDF]
The previous versions of the
bill which both passed the House of Representatives—H.R.
416 from the current Congress, and the former H.R. 10
from the 108th Congress—did
not contain the pro-alien asylum credibility nonsense.
the smoke cleared after the House-Senate conference
committee for the bill on May 3, the damage to the
"REAL ID Act of 2005" was done.
days later, the rigged asylum amendments became the law
of the land with the President`s signature on May 10.
that the culprit is a member of the Senate, since the
House had already passed unaltered asylum
language twice before.
the usual suspects: the immigration lawyers` nationwide
trade group called the American Immigration Lawyers
lobbying arm called the American Immigration Law
and the "immigrant
rights" gang at the ACLU.
else could have pulled off such a skillful muddying of
the waters, with seemingly innocuous language, without
Congress even knowing what was happening.
Treason Lobby has managed to ruin the brand-new asylum
credibility standards by inserting outright double-talk
into the bill, as well as into the conference report in
the Congressional Record.
there`s an internally inconsistent statute—with the language leaning in the alien`s favor of course—that
means there`s more wiggle-room for
lying witnesses, and more issues for litigation!
stealth asylum changes to REAL ID reduce the bill`s once
noble goal of "Preventing Terrorists From Obtaining
Relief From Removal" to a complete farce.
inserting contradictory language at both ends of one key
Treason Lobby`s lawyers have reduced the
newly-minted asylum credibility standards of the
Immigration Act to jello.
the damage to the asylum laws of Section 208 of the
Public Law No: 109-13 – including
the Treason Lobby`s
last-minute additions to
H.R. 1268 [PDF]
with the language differing
from the original H.R. 418 emphasized by me.
101(b)(3)(B)(iii) CREDIBILITY DETERMINATION-
Considering the totality of the circumstances,
and all relevant factors, a trier of fact may base a
credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant`s or witness`s account,
the consistency between the applicant`s or witness`s
written and oral statements (whenever made and whether
or not under oath, and considering the circumstances
under which the statements were made), the internal
consistency of each such statement, the consistency of
such statements with other evidence of record (including
the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant`s claim, or any other relevant factor. There
is no presumption of credibility, however, if no
adverse credibility determination is explicitly made,
the applicant or witness shall have a rebuttable
presumption of credibility on appeal.`
The REAL ID Section
101(d)(4)(C) dealing with "withholding of
removal" contains the
same contradictory language as the asylum amendments.
inserting "the totality of the circumstances"—which
could mean any excuse whatsoever to explain why an alien
lied in applying for asylum—the Treason Lobby now makes
it proper for an immigration judge to consider ANY
factor in making a credibility determination, not just
the relevant factors. For lawyers, "totality"
includes both relevant and irrelevant reasons.
final sentence seals the deal with pure double-talk.
There is NO presumption of credibility . . . except when
the alien appeals the case, of course.
illegal alien`s testimony, and the testimony of the
alien`s witnesses (funny, there was no mention of the
government witnesses for this presumption of
credibility) is now more sacred than the testimony of
American citizens when appearing before real courts of
Conference report for the bill offers no explanation for
the REAL ID double-talk:
"Finally, this provision
makes it clear that there is no presumption of
credibility, but if no adverse credibility determination
is explicitly made, the applicant or witness has a
rebuttable presumption of credibility on appeal."
(Conference report page 2871)
explains the limitations placed on EOIR immigration
judges to make a finding that an alien lied in court.
"It should be noted, however,
that although clause 208(b)(1)(B)(iii) would allow an
adjudicator to base an adverse credibility determination
on any of the factors set forth therein, such a
determination must be reasonable and take into
consideration the individual circumstances of the
specific witness and/or applicant." (Conference
report, page H2870—my emphasis)
I get it. The "individual circumstances" mean the
excuses that the aliens give in trying to explain away
how they were caught lying on the witness stand in the
middle of the hearing, and why their mid-stream revision
of their asylum claim could yet still be credible.
asylum applicants invariably get caught lying in EOIR
Immigration Court. So the "individual circumstances"
and the "totality of the circumstances" language
allows the Treason Lobby`s mouthpieces in the
immigration bar plenty of room to fast-talk EOIR
immigration judges out of making an "adverse
credibility finding" against their clients.
no adverse credibility finding in the EOIR Immigration
Court record, BINGO . . . the alien`s
testimony, and even the testimony of the alien`s own
witnesses will be "presumed" credible on appeal
to the BIA, and then on the federal circuit courts of
appeal as well.
America could such a privilege be offered to illegal
remember—the new asylum credibility standards were
supposedly created for an entirely different purpose.
REAL ID Act`s] Section 101 of Division B responds
terrorist abuse of our asylum laws by amending the
INA to limit fraud." (Conference report page H2869)
fraud? . . . Oh really?
window dressing, the REAL ID bill`s Conference Report
spent some time quoting a Center for Immigration Studies
terrorism report lamenting how Moslem Jihadists have
been given asylum (they should have read my "What
the CIS Missed – How Alien Terrorists Exploited the EOIR"
these last-minute stealth amendments, the Treason Lobby
has turned REAL ID`s asylum standards upside down—and
into a magnet for fraud.
response to "terrorist