Focusing on defensive asylum applications, this Comment examines whether certain provisions of REAL ID violate due process and international obligations to asylum seekers. Part I situates REAL ID within the historical context of nearly a decade of restrictive U.S. immigration law and over two decades of Executive Orders aimed at deterring a mass exodus of asylum seekers from reaching U.S. shores. Part II provides an overview of the U.S. asylum system and argues that the system produces inconsistent and sometimes arbitrary results, indicating that segments of the system do not satisfy international obligations. Part III outlines three provisions of REAL ID: 1) heightened burden of proof, credibility, and corroborating evidence standards; 2) stripped judicial review of detention; and 3) terrorist-related bars to asylum; and examines their implications with respect to asylum case law. Part IV explains how those three provisions of REAL ID violate due process and international law. Part V recommends restoring administrative appellate review of immigration judges' decisions, restoring judicial review of discretionary determinations in the asylum process, making individual determinations of whether an asylum seeker should be detained during proceedings, providing asylum seekers with an attorney, raising the quality of legal representation in Immigration Courts, and providing adjudicators and asylum officers with greater guidance on credibility and evidence standards.
Victor P. White,
U.S. Asylum Law out of Sync with International Obligations: REAL ID Act,
San Diego Int'l L.J.
Available at: https://digital.sandiego.edu/ilj/vol8/iss1/9