By Lily Cusack, J.D. Class of 2021
Credibility findings have become increasingly important in immigration law. To meet their burden to prove that they qualify for protection in the United States, an applicant for withholding of removal, asylum, and protection under the Convention Against Torture must tell a credible story.1 For applicants who entered the U.S. on or after May 11, 2005, the considerations to determine a person’s credibility detailed in the REAL ID Act apply.2 The Act specifies that the immigration judge must consider “the totality of the circumstances” and specifically references a list of relevant factors:
“the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with over evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”3
There is a plethora of problems with this standard established by Congress. First, these factors are inherently unfair to asylum seekers and refugees. The majority of cases do not have any evidence or corroborating documentation besides the applicant’s own story.4 These credibility determinations force the applicant to learn how to develop and tell the perfect story to avoid any sense of mistrust by the immigration judge.5 However, this is a lot of pressure to put on a person fleeing persecution. Courts have recognized that many applicants “flee their home countries under circumstances of great urgency” without any time to make the necessary preparations for, or even think about, applying for asylum.6 Even if they were thinking of their asylum application, applicants may not be able to get official documents from their governments or relevant information from a country that is actively suppressing their abuse against certain individuals.7
Another factor that this requirement completely glosses over is the impact of trauma on an applicant’s story. As evidenced by horrific stories of abuse in most immigration cases, trauma is very common among asylum applicants.8 Stories told by trauma survivors about their trauma “tend to be fragmented and disjointed,” “lacking in detail, and the story will typically change over time, even with regard to critical details.”9 However, these are exactly the types of factors that can lead an immigration judge to deny any protection to the applicant.10
An example of this comes from a current case in the Second Circuit, Balasegarathum v. Barr.11 The Second Circuit upheld an immigration judge’s adverse credibility finding because his “allegations implausibly gained over the course of his 2011 Canadian asylum application, his 2014 U.S. application, and his 2015 testimony before the immigration judge,” and he omitted “the most extreme instances of violence from the prior iterations of his account, particularly in contrast to the specific details he earlier provided of less-severe alleged acts of violence.”12 However, these points are emblematic of how a trauma survivor might tell a story about their trauma. For instance, Holocaust survivors asked to speak about their experiences were said to tell fragmented, vague stories or were not able to recall certain aspects.13 Similarly, women who were sexually abused were hesitant, actively repressed, or altered their stories.14 In fact, in a study done in the UK on refugees with PTSD, researchers found that 30 percent of their stories had discrepancies in central details between the first and second interviews.15
Furthermore, many of these factors are very vague, which leads a lot of determinations to the court’s discretion and contributes further to the issue of inconsistent immigration rulings. Immigration judges are free to make an adverse credibility finding on subjective notions like “inherent plausibility” and “inaccuracies or falsehoods” within or between accounts of an applicant’s story.16 For instance, the Tenth Circuit upheld an immigration judge’s adverse credibility finding based in part because the immigration judge “believed that remaining in hiding in the bathroom for an hour after the shooting in his house stopped was not a logical human response.”17 As this holding shows, an immigration judge’s decision is allowed to be subjected and colored by the judge’s own subjective interpretations of what “a logical human response” is to a situation he could not imagine ever living.
This incredible amount of discretion to immigration judges is further compounded by the great deference the immigration judge’s adverse credibility findings on appeal. A reviewing court can only overturn an immigration judge’s adverse credibility decision when they are “compelled to conclude to the contrary.”18 In 2010, 96 percent of cases in appeals courts that addressed an immigration judge’s adverse credibility finding upheld that finding.[19] This means that an immigration judge’s adverse credibility decision is effectively final.
An asylum seeker faces a myriad of challenges to leave their country, come to the U.S., and apply for asylum. Worrying about how to appear credible in a foreign court should not be one of those challenges.
[1] See 8 C.F.R. § 1208.13(a) (asylum); id. § 1208.16(b) (withholding), (c)(2) (protection under CAT).
[2] See REAL ID Act § 101(a)(3), (h)(2).
[3] 8 U.S.C. § 1158(b)(1)(B)(iii).
[4] Stephen Paskey, Telling Refugee Stories: Trauma, Credibility, and the Adversarial Adjudication of Claims for Asylum, 56 Santa Clara L. Rev. 457, 460 (2016).
[5] See id.; see also 8 U.S.C. § 1158(b)(1)(B)(iii).
[6] See Dawoud v. Gonzales, 424 F.3d 608, 612-13 (7th Cir. 2005).
[7] Scott Rempell, Credibility Assessments and the REAL ID Act’s Amendments to Immigration Law, 44 Tex. Int’l L.J. 185, 191 (2008).
[8] See Paskey, supra note 4, at 461.
[9] Id.
[10] See 8 U.S.C. § 1158(b)(1)(B)(iii).
[11] 827 F. App’x 90 (2d Cir. 2020).
[12] Id. at 92.
[13] See Paskey, supra note 4, at 488.
[14] Id. at 489.
[15] See Jane Harlihy & Stuart Turner, Should Discrepant Accounts Given by Asylum Seekers be Taken as Proof of Deceit?, 16 Torture 81, 88 (2006).
[16] See id.
[17] Sanga v. Gonzalez, 121 F. App’x 841, 843 (10th Cir. 2005).
[18] 8 U.S.C. § 1252(b)(4)(B) (emphasis added); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (cannot reverse factual findings even if evidence supports contrary conclusion).
[19] See Paskey, supra note 4, at 476.
William & Mary Law School Immigration Clinic Blog 