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Asylum Applicant’s Due Process Rights

Author:Asylum Attorney Alena Shautsova

In the recent decision by the Ninth Circuit Court of Appeals, Bondarenko v. Holder, the court held that an applicant for asylum possess due process rights that must be observed even if the government or an Immigration Judge believes that the applicant is not credible.

The case is of a Russian national who was opposing Russian government war activities in Chechnya. In support of his application for asylum, Bondarenko submitted medical record of his injuries received from the Russian police; summonses to appear for testimony by the Ministry of International Affairs, certificate that Bondarenko was expelled from the university and some country conditions documents.

It is the first evidence: medical records that appeared to be "untrustworthy" in the eyes of the government: the government requested to authenticate it through a forensic expertise. It must be noted that most of the time, the documents submitted by the applicants do not possess official, government authentication. Why? Because doing so requires the applicant to turn to the authorities of his/her country and most of the time the asylum seeker’s fragile status and hopes for shelter in a foreign country will be revealed this way. That is why many asylum seekers prefer not to authenticate the documents and rely on their own testimony in trying to introduce them into evidence.

After several appearances, the government finally accused Bondarenko of forging the document. According the government’s report, which was not shown to Bondarenko up until the minute of the hearing, the medical record was not authentic. When the applicant’s attorney asked for continuance to conduct his own investigation into the results of the report, the Immigrant Judge denied the request stating that the applicant, Bondarenko, was supposed to have the medical records authenticated at the time he filed his asylum application.

Needless to say that Bondarenko appealed Immigration Judge’s decision denying his asylum claim. However, the Board of Immigration Appeals came to no different conclusion.

Bondarenko filed a petition for review in Federal Court. It must be stated here that many, many asylum applicants give up at this stage and do not pursue their claims beyond the BIA. Very often, they make a mistake of giving up too early, because an Immigration Judge or even a panel of judges (the BIA) can be wrong, and very often it takes a more impartial tribunal, like Federal court, to see the truth.

In Bondarenko, for example, the Federal court properly held that asylum applicant’s due process rights were violated when he was deprived of a reasonable notice of the report challenging the authenticity of the presented evidence. In addition, because the government did not invite the author of the report to be present at the hearing, Bondarenko was deprived of an opportunity to cross-examine him/her. Plus, the Federal Court one more time stated that applicant for asylum may authenticate presented evidence through his/her testimony.

While it is certainly a relief, that the Federal Court confirmed that an applicant for asylum in Immigration court is not stripped of his/her due process rights, it is nevertheless sad that Bondarenko had to wait for this decision for 8 years from the day of his first Individual hearing.

02 November 2013
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