Friday, December 28, 2012

Credibility and the Asylum Process by Scott Rempell


Credibility and the Asylum Process by Scott Rempell

Last week, federal law enforcement agents in New York arrested numerous people for their involvement in a massive asylum fraud scheme. The scheme involved lawyers, paralegals, translators, and even a deacon, who helped to concoct and carry out fake asylum claims for Chinese nationals. The most common fabricated stories concerned individuals forced to undergo abortions and those persecuted for their Christian beliefs.

The case highlights the ongoing difficulties adjudicators face when trying to determine the credibility of asylum applicants. The INA permits an immigration judge to essentially consider anything he or she believes is relevant to assessing truthfulness, including: inconsistencies (between prior interviews and the hearing, between an asylum application and a hearing, between direct and cross-examination, etc.); omissions of significant information that surface for the first time at the hearing; the plausibility of the applicant’s story; elusiveness of testimony, such as non-responsiveness to the question posed; and the applicant’s demeanor while testifying.

The task of measuring credibility in cases outside of the asylum context is hard enough. We all have certain beliefs about whether various so-called credibility cues are really indicative of a lie.  Chances are, whatever our beliefs, there is a study out there that calls into question the causal connection between veracity and a particular cue. For example, in Mitondo v. Mukasey, the Seventh Circuit cited credibility studies when it noted that “if you want to find a liar you should close your eyes and pay attention to what is said, not how it is said or what the witness looks like while saying it.” In another study, the researchers found that participants often associated overly pronounced or abrupt movements with deception even though liars tend to move less when providing deceptive answers (according to that particular study).

Within asylum proceedings, several factors compound the difficulty in credibility assessments.  For one, the cases concern events that purportedly took place in foreign countries, which makes the information much harder (if not impossible) to verify. Additionally, translation problems can create the appearance of deficiencies that are not really there. Moreover, cultural divergences can lead adjudicators to misinterpret asylum applicants’ visual and verbal cues, along with the plausibility of their stories. Take the fraud scheme mentioned above as an example. Based on what has come to light, we know that a number of Chinese asylum applicants lied about their religious backgrounds. However, in a number of cases, the federal appellate courts have criticized immigration judges for using their own understandings of religious observance to find asylum applicants’ claims implausible. Are applicants lying about their religious convictions because they are unable to readily recite the central tenets of Christianity or key biblical passages? Not necessarily. (I would probably fail such a test if someone quizzed me about my religion.) Even more so in countries where certain religious practices are banned or significantly curtailed, sometimes religion is more about freedom of expression and the desire to worship without government interference. Conversely, as the uncovered scheme shows, applicants’ ability to memorize key information about a particular religion does not necessarily mean that they practiced that religion prior to coming to the United States.

Further compounding the problem is the fact that some asylum seekers who do have legitimate claims still lie because they are coached by people who say they will have a better chance with a made-up story. For an asylum applicant who knows nothing about the criteria for meeting the definition of a refugee, the advice of a so-called expert coaching them will be particularly compelling. After all, true fear of future persecution is an understandable motivator to do whatever is necessary to avoid deportation. Applicants who go down this road often get themselves into trouble because the dire circumstances of their actual pasts are more likely to surface when they testify about their made-up stories. Ironically, those who did not suffer any harm in their pasts might have an easier time sticking to their scripts because they do not have to worry that they will confuse two stories.  

The recent scandal in New York is problematic for asylum applicants because it raises the skepticism adjudicators and attorneys have regarding these claims and may, in turn, make it harder for those with legitimate claims to obtain asylum relief. Adjudicators should be careful not to let the realization of such fraud skew the way they evaluate any one claim. Every asylum applicant deserves to have his or her case decided on the merits. At the same time, this event should serve as a wake-up call. The government should invest more resources to assess asylum claim trends to spot these schemes before they get as far as this one did. I remember seeing a few red flags when I was working at DOJ. But my sample (as with the sample of any one attorney) was far too limited to verify one way or the other. The resources the government would spend proactively monitoring such trends are far less than the amount it will take to go back and reassess all of the potentially affiliated cases after a widespread scheme is uncovered.

The stakes are simply too high in asylum cases to ignore measures that could improve the system. Both the government and those with legitimate claims would benefit from increased oversight. Admittedly, the humanitarian in me does sympathize with all those who come here in search of a better life. But if I had to choose between asylum applicants who really would be persecuted if deported and those who would not, I’d rather ensure that applicants with legitimate claims have the greatest chance possible to obtain protection

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