with consulates abroad, conducts more complex on-site investigations and audits to verify assertions made in EB-5 filings. And because the Federal Rules of Evidence are mostly inapplicable in the immigration context, regional centers and investors would be hard-pressed to challenge USCIS’ sua sponte introduction and reliance on extra-record evidence.
As the size and complexity of EB-5 filings continues to grow, and as USCIS intensifies its independent investigative procedures, the need to ensure that representations in filings are accurate and reasonable is particularly acute.
By extension, the ability to adequately respond to USCIS’ concerns when credibility is called into question could be the difference between a Green Card and a waste of $ 500,000. Because we assume that EB-5 petitioners and their representatives are aware of the need to present true and accurate information, we focus below on circumstances where things fall through the cracks.
In this regard, we initially examine an area of immigration practice where credibility determinations are quite common and have yielded a sizeable body of relevant case law – namely, immigration proceedings involving applications for asylum and related relief governed by the Real ID Act. Drawing lessons from relevant federal case law, we then discuss several strategies that could be helpful in preempting and / or responding to credibilitybased concerns in EB-5 adjudications.
CREDIBILITY DETERMINATIONS IN ASYLUM PROCEEDINGS
Asylum is a discretionary form of relief that hinges on persecution in the applicant’ s country of origin on account of a protected ground. Credibility is arguably the most important facet of an asylum claim, and is often the single greatest substantive obstacle facing asylum applicants. In 2005, Congress enacted the Real ID Act, which amended the Immigration and Nationality Act( INA).
Congress changed the manner by which credibility determinations are rendered in immigration proceedings involving applications for asylum and related relief. In particular, the Real ID Act codified for the first time the types of considerations that an immigration judge(“ IJ”) may take into account in assessing an asylum applicant’ s credibility.
These include an applicant’ s candor, demeanor or responsiveness; a lack of corroboration; and written and testimonial omissions, implausibilities, inconsistencies, inaccuracies and falsehoods without regard to
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