Sometimes, the evidence you leave out of an asylum case is as important as the evidence you include.

Here, we'll look at what evidence is best kept out of a case, how to decide whether to submit evidence that has harmful and helpful components, and how to evaluate the risks inherent in excluding unhelpful evidence.

When preparing an asylum case, there is a tendency to include all the evidence you can get your hands on: Identity documents, school and work records, military records, witness letters, medical and police reports, threat letters, country condition information, &tc., &tc. This is understandable, given the REAL ID Act, which requires asylum applicants to submit evidence that is reasonably available. When you do not submit evidence that is expected by the U.S. government, the Act requires that you explain why that evidence is absent. So in general, it is a good idea to submit evidence. But not always.

That's because some evidence does more harm than good. One obvious piece of harmful evidence is a witness letter that is inconsistent with the asylum applicant's story. If you say that you lived in a blue house, but your witness says that you lived in a red house, the fact finder is likely to conclude that one of you is lying. Such a letter is best left out, even if it contains some useful information. Better yet, the letter (or the asylum seeker's affidavit) can be corrected so it is consistent with other evidence in the case.

This brings up a larger point--every piece of evidence you submit in a case should be consistent with every other piece of evidence. One way to ensure consistency is to create an affidavit and then compare each piece of evidence to the affidavit. If all the evidence is consistent with the affidavit, it should all be consistent with each other.

What, then, do you do if you have a useful piece of evidence that is somehow inconsistent with the remainder of your case? An (easy) example of this might be a birth certificate that contains some wrong information, such as an incorrect birth date or location. In that case, we typically submit the birth certificate and in the index of exhibits, which lists and describes all our evidence, we include a footnote explaining the error. We also make sure that the client is aware of the inconsistency, so she can explain it if asked. In this example, the explanation might simply be that the home government made a mistake when they created the birth certificate.

Other situations are less obvious. We recently litigated a case of a Uyghur man who was a citizen of China and who had a temporary residence document for Turkey (Uyghurs are severely persecuted in China and some flee to Turkey). If the Turkish document indicated that our client had permanent status in Turkey, that would likely bar him from asylum in the United States. In our case, the only document we had from Turkey was a copy of the front side of my client's residency card, which had no expiration date. On the one hand, this document was damaging to our case, since it indicated that my client was a "resident" of Turkey, and this sounds like a permanent status that could bar him from asylum. On the other hand, I felt that we had to submit some evidence of his status in Turkey, since the client lived there for more than five years and it would look bad if we had nothing--it might also cause the judge to assume that we were trying to hide my client's status in Turkey. In our case, we submitted the residency card along with country condition evidence from Turkey indicating that "residency" was not a permanent status under Turkish law and that Turkey was unsafe for Uyghurs. That evidence, combined with the client's testimony about his situation in Turkey was enough (just barely) to overcome the judge's concern about firm resettlement and the case was approved.

Sometimes we see documents that are so inconsistent that they appear fraudulent. In some cases, such documents are actually fraudulent; other times, they are real, but appear fake. Either way, unless there is a very good reason to include such documents (along with an explanation), I do not submit them. The U.S. government is pretty good about discovering fake documents, and so it is not worth the risk of submitting a document that is (or seems be) fraudulent. The likely benefit of such a document is not worth the risk, since submitting a document that the government views as fake is almost guaranteed to lose you the case.

The more cases I do, the more willing I have become to exclude documents that may be damaging. That's especially true for witness letters, since fact finders usually don't give those a lot of weight (though my clients are sometimes asked why they failed to get a letter from a particular witness, but those inquires are rarely fatal to the case). In other words, unless a document is crucial to the person's claim, I will exclude it if I feel it might cause credibility or other problems.

Finally, it is important for asylum seekers to understand that they have the burden of proof in the case. They must convince the Immigration Judge or Asylum Officer that they qualify for asylum. To satisfy that burden, evidence is almost always required. But asylum seekers are not obliged to submit every piece of evidence that they have, and it is wise to consider whether a particular piece of evidence may do more harm to the case than good.

Originally posted on the Asylumist: