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Providing For Further Consideration of H.R. 418, Real ID Act of 2005

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Location: Washington, DC


PROVIDING FOR FURTHER CONSIDERATION OF H.R. 418, REAL ID ACT OF 2005 -- (House of Representatives - February 10, 2005)

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Mr. BERMAN. Mr. Speaker, I thank the gentleman for yielding me time.

Mr. Speaker, section 101, the asylum provisions, are flawed. Existing law exempts and prohibits terrorists or threats to national security or those who the government can prove through secret evidence are threats to national security from getting asylum. That is existing law. This self-executing rule, which allows amendments which have never been considered by any committee or heard through hearing or markup, do several dangerous things.

Section 101 encourages asylum officers and immigration judges to deny an asylum claim simply because the applicant was able to recall or recount information later in the process that she did not mention when she was initially encountered by immigration officers. The amendment included in the rule would expand that to include consistency on matters that are entirely relevant to the basis of the claim for asylum.

It would mean that a woman who has been subjected to gang rape by government armed forces in her country who is too afraid or ashamed to tell the fact to the armed male immigration officer she first encounters at the airport in the United States could, if she tells the story later on in the process, be denied asylum simply because she was too afraid or too ashamed to tell the story to the first person she encountered.
Now, under the amendment, this woman could be denied asylum because she cannot recall facts that are irrelevant to establishing her need from protection, her high school graduation date, for example.

In a system where we rely on translations and statements taken from people in crisis, this is a very change in the law.

It is a fundamental challenge to the whole concept of the immigration judge considering all things coming into the record. The one thing I know is if section 101 becomes law, people with a well-founded fear of persecution, as a result of these changes, will be denied asylum, there will be no effort whatsoever to enhance our efforts to protect this country against terrorism, but we will have struck a fundamental blow against a tradition which I think is very important to maintain in this country and that is that we are a haven for refugees from persecution for political, ethnic, religious, gender reasons.

I urge a ``no'' vote on the rule and a ``no'' vote on the bill.

Even more troubling is a fact discussed in a report released this week by the U.S. Commission on International Religious Freedom. Often Immigration Judges determine that an applicant is not credible because their statement at the airport was inconsistent with later statements because later statements included more detail. The problem with that logic is that when an asylum applicant is interviewed in inspections, the interview stops at the moment that the person establishes a fear of persecution. They are not invited to provide more detail until a later credible fear interview. In other words, the applicant isn't the reason the details are not included. This bill would codify this preposterous failure of the Immigration Judges' logic in these cases.

Section 101 also would encourage asylum officers and immigration judges to deny an asylum claim because of perceived problems with an applicant's demeanor. This would mean that a woman subjected to persecution by the Taliban who has been taught that she should not make eye contact with a man could be denied asylum simply because she did not make eye contact with the male immigration officer interviewing her. .

Furthermore, it is quite common for torture survivors suffering from post-traumatic stress to exhibit characteristics in their demeanor such as lack of eye contact, the inability to recall simple details that to an untrained person may appear to be symptoms of lying. For example, Fauyiza Kassindja, a young Togolese woman who fled female genital mutilation (FGM), would have been denied asylum under this standard with little chance of getting that determination reversed on appeal. Under current law, the Board of Immigration Appeals rightly reversed the Immigration Judge's credibility finding in her case, and that decision has helped protect other women fleeing FGM.

Section 101 would encourage asylum officers and immigration judges to deny an asylum claim when the applicant cannot provide corroborating evidence of their claims if the officer, in his unreviewable discretion, believes that the applicant should be able to provide such evidence.

This disproportionately harms applicants who are detained and/or lack counsel. Relatedly, H.R. 418 would constrain judicial review of a denial of asylum based on an applicant's failure to provide corroborating evidence.

Section 101 would require some asylum applicants to prove not only that they are refugees, but also prove their persecutors' central Reason.

The additional burden on asylum applicants created by this provision is impermissible under the international law, including the U.N. Convention on Refugees to which the United States is a signatory. To meet the standard set forth in the Convention, it is sufficient to show persecution is motivated in part by one of the prohibited grounds.

Asking a refugee or asylum applicant to parse his persecutor's motivations so finely as to distill the ``central Reason'' or ``central reason'' is asking asylum seekers to read the minds of their persecutors. This additional burden will lead ineluctably to denials of legitimate asylum claims, sending helpless applicants back to face more persecution and potentially death.

The proponents of section 101 assert that we must enact this section in order to prevent terrorists from gaining asylum. My friends who are the authors of this provision are in error, however, in this assertion.

I have been informed by my staff that while several persons with terrorist connections have applied for asylum over the years, the Department of Homeland Security has not found a single terrorist has ever been granted asylum in the United States. This is because, first, current law appropriately makes terrorists ineligible for asylum, and second, the standard for granting asylum is already so high that applicants are subjected to intense scrutiny before a decision on their claims is made.

While the United States has not, as far as the Department of Homeland Security knows, ever granted asylum to a terrorist, there was, indeed, a problem more than a decade ago whereby persons could apply for asylum and then be paroled into the United States while their claims were pending. That is no longer possible today. A person who applies for asylum today is held in detention until an investigation is made on the credibility of their claim and on whether they pose a security risk to the United States.

In conclusion, Mr. Speaker, the consequences for asylum seekers to enactment of section 101 could be catastrophic. The new standards could make it far more difficult for legitimate asylum seekers to prove their claims. After all, would an asylum officer in 1938 have found Jews' claims of being thrown into the death camps and ovens of Nazi Germany credible? Would the victims of the Nazi death camps have been able to present corroboration of the specific facts asserting their claims? If a Bosnian woman who has faced rape at the hands of government agents as a systematic form of persecution is ashamed or afraid to relate her rapes in her initial interviews, should that be an automatic ground to find her not credible?

It is unclear what really motivated the drafters of H.R. 418 to put section 101 into this measure. Two things are clear, however: the provision has absolutely nothing to do with terrorism, and it was not recommended by the 9/11 Commission. Let me repeat that, because yesterday a Member of the majority claimed this bill was simply enacting recommendations of the Commission. The chairman and vice chairman of the 9/11 Commission have clearly and specifically rejected that these asylum provisions are supported by their recommendations.

We should consider changes to our asylum laws in a sober and reflective manner after hearings, subcommittee consideration, and full committee consideration. Neither section 101 of H.R. 418 nor any of the other provisions of this bill had a single hearing or markup.

I urge my colleagues to stand against this rule and if the rule is not defeated, I implore you to support the amendment that will be offered later today to strike Section 101 in its entirety.

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