Treason Lobby Sabotages REAL ID Act
May 23, 2005, 05:00 AM
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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 licenses?

Unfortunately, there`s worse.

The REAL ID Act`s amendments to the Immigration and Nationality Act`s asylum and withholding of removal standards have been rigged in the favor of illegal aliens again . . . like never before.

Specifically, the amendments roll back some of the reforms made by former Attorney General John Ashcroft by federal regulation [67 FR 54878] 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 credibility! [See here and here for 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 Ashcroft.

"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 effective 9/25/02; 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 cases.

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. [VDARE.com note: 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.

But when 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.

And ten days later, the rigged asylum amendments became the law of the land with the President`s signature on May 10.

I assume that the culprit is a member of the Senate, since the House had already passed unaltered asylum language twice before.

One rumor: notorious immigration enthusiast Senator Sam Brownback (R.-Kansas).

But when it comes to behind-the-scenes rigging of the asylum laws in favor of illegal aliens, all roads eventually lead to the Treason Lobby.

The undermining of the REAL ID asylum language is without a doubt the handiwork of the pro-alien immigration bar on behalf of their thousands of asylum-seeking clients.

Here are the usual suspects: the immigration lawyers` nationwide trade group called the American Immigration Lawyers Association (AILA), their lobbying arm called the American Immigration Law Foundation (AILF), and the "immigrant rights" gang at the ACLU.

No one else could have pulled off such a skillful muddying of the waters, with seemingly innocuous language, without Congress even knowing what was happening.

The 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.

And when 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!

The 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.

By inserting contradictory language at both ends of one key paragraph, the Treason Lobby`s lawyers have reduced the newly-minted asylum credibility standards of the Immigration Act to jello.

Here`s the damage to the asylum laws of Section 208 of the Immigration Act:

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.

`Section 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.

By 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.

The final sentence seals the deal with pure double-talk. There is NO presumption of credibility . . . except when the alien appeals the case, of course.

The 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 law.

The 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)

Yet the conference report 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)

Oh, now 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.

Alien 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.

And with 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.

Only in America could such a privilege be offered to illegal aliens.

But remember—the new asylum credibility standards were supposedly created for an entirely different purpose.

"[The REAL ID Act`s] Section 101 of Division B responds to terrorist abuse of our asylum laws by amending the INA to limit fraud." (Conference report page H2869)

Limiting immigration fraud? . . . Oh really?

As 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" instead!).

With these last-minute stealth amendments, the Treason Lobby has turned REAL ID`s asylum standards upside down—and into a magnet for fraud.

Some response to "terrorist abuse"!

Juan Mann [send him email] is a lawyer and the proprietor of DeportAliens.com.