EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 29

whether they go to the heart of the applicant’s claim. The practical effect of the Real ID Act’s amendments was to make clear that every facet of an immigration proceeding is potentially relevant to an applicant’s credibility. Though not intended as an exhaustive evaluation, the below discussion provides an overview of federal circuit law pertaining to two credibility factors set forth in the Real ID Act that clearly influence USCIS’ credibility-based assessments in EB-5 adjudications: inconsistencies and lack of corroboration. INCONSISTENCY FINDINGS UNDER THE REAL ID ACT Before the Real ID Act, case law in a majority of circuits held that reliance on minor inconsistencies would not support an adverse credibility determination. The Real ID Act, however, expressly provides IJs authority to consider any inconsistencies or discrepancies when assessing an applicant’s credibility. Given the unique nature of immigration proceedings – where an IJ evaluates the internal consistency of an applicant’s and/or witness’ direct and cross-examined testimony and also the testimonial consistency with written submissions and/or prior statements made in support of the applicant’s claim – there tends to be a heightened risk that credibility issues will be identified. When they are, the federal courts have held that, save for a few exceptions, an IJ must provide the applicant with an opportunity to explain and reconcile any discrepancies in the record. Importantly, however, the IJ need not credit the explanations for inconsistent statements unless those explanations would compel a reasonable trier of fact to do so – in other words, explanations of inconsistencies or discrepancies must be objectively believable and reasonable. CORROBORATION FINDINGS UNDER THE REAL ID ACT In immigration proceedings, a failure to present corroborating evidence can lead to a denial of relief based on either insufficiency of the evidence grounds or based on an adverse credibility determination. Regarding the latter, federal courts have interpreted the Real ID Act as allowing IJs to request corroborating evidence whether or not the IJ has reason to suspect the alien’s credibility. For example, where the alien’s credibility is already called into question, an applicant may be required to provide reasonably available evidence to corroborate EB5INVESTORS.COM 28