Thursday, October 29, 2015
Immigration Article of the Day: Credibility. Trauma, and the Adversarial Adjudication of Claims for Asylum by Stephen Paskey
Credibility. Trauma, and the Adversarial Adjudication of Claims for Asylum by Stephen Paskey, State University of New York (SUNY) at Buffalo, Law School, October 21, 2015 Santa Clara Law Review, Forthcoming
Abstract: When trauma survivors seek asylum in the United States, the deck is stacked against them. In most cases, the applicant’s story is the only direct evidence of the applicant’s claim, and asylum is certain to be denied if a judge finds the applicant not credible. But the stories told by trauma survivors defy cultural norms for a credible story: they are often inconsistent, vague, and both logically and chronologically disjointed. As a result, asylum may be wrongly denied. The problem is inherent in our asylum adjudication system, which subjects most applicants to an adversarial hearing. This article uses scholarship on trauma and narrative theory to examine the challenges faced by survivors who seek asylum – and the ways a lawyer might inadvertently increase the odds of an adverse decision while drafting a declaration. The article also details original empirical research on 369 appellate cases in which immigration judges found an asylum applicant to be not credible. Overwhelmingly, judges cited inconsistencies in the applicant’s story as grounds for that conclusion – yet research among survivors proves that such discrepancies cannot be taken as evidence of falsehood. As a result, the article recommends that the adjudication of asylum claims should be removed from U.S. immigration courts, and that existing procedures be replaced with a single non-adversarial adjudication for all asylum applicants.