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
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