By Linnea VanPilsum-Bloom*
The current focus on and process for establishing credibility in asylum application interviews is illogical and harmful. A person who seeks asylum in the United States will either request asylum affirmatively, by applying to U.S. Citizenship and Immigration Services (USCIS), or through their potential removal in Immigration Court. In either process, the asylum seeker is expected to explain to the decision maker, a USCIS officer or Immigration Court Judge, what they have experienced and what they fear experiencing if they were made to return to their country of origin. As asylum seekers tell stories necessarily containing details of abuse both faced and feared, the officers and judges evaluate their credibility. These credibility determinations have significant impacts on many asylum cases and have been named “the single biggest substantive hurdle” for asylum seekers. However, credibility determinations do not account for the effects of past trauma or the inaccuracy of memory in general. Over time, asylum-seekers have faced increased barriers in being found credible, from the passage of the Real ID Act to the Supreme Court’s recent decision in Garland v. Dai. The resulting standard cuts against the purpose of protecting those who should qualify for asylum.
What Asylum-Seekers Must Show
To be granted asylum, an individual must show that they are unable or unwilling to return to their country of origin because they have either been persecuted there in the past or have a well-founded fear of future persecution. This persecution must be on account of one of five things: their race, religion, nationality, membership in a particular social group, or political opinion. This standard essentially asks the asylum seeker to show that they meet the definition of “Refugee” under the Immigration and Nationality Act (INA). The burden is initially on the asylum-seeker to present sufficient evidence that there is a reasonable possibility that the applicant would be persecuted should they be returned to their country of origin. The decision maker, whether judge or officer, can consider evidence in the form of testimony of the asylum-seeker, testimony of a witness, documentation of the asylum-seeker’s experience, and evidence of country conditions (such as state department reports on human rights practices or respected non-profit or non-governmental organization reports).
The Credibility Determination
Decision-makers in asylum cases, such as immigration courts and asylum officers, rely heavily on testimony provided by the asylum-seeker when determining the outcome of a case. Judges look both at the information provided by the asylum-seeker and their demeanor while testifying. Ultimately, the judge or officer decides, often explicitly, whether they believe the asylum-seeker. This decision is legally known as a credibility determination. If a judge or officer finds the testimony is credible, that testimony could theoretically be sufficient evidence for an asylum-seeker to meet their burden and be granted asylum. Many immigration advocates describe the Real ID Act as having made it more difficult for an asylum seeker to be found credible in that it provides a statutory basis for an adverse finding of credibility based on immaterial inconsistencies. As a result, even inconsistencies in non-material details, or information not specifically important to the asylum-seeker’s burden, could justify an adverse credibility finding.
Should the judge or officer make an adverse credibility determination, essentially saying that they do not trust the testimony of the asylum-seeker to be true, that determination is nearly unchangeable. Review of an immigration judge’s factual findings, including the credibility of the asylum-seeker is “highly deferential.” The standard applied in review is whether “from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Further, in the 2021 decision Garland v. Dai, the Supreme Court of the United States unanimously made it more difficult for a Circuit Court reviewing an asylum case to put weight behind the testimony of the asylum seeker, even without an explicit adverse credibility finding. The Court found that any judicial review of a case after the Board of Immigration Appeals (BIA) is just that—judicial review—and not an appeal. As such, the rebuttable presumption of credibility on appeal usually granted to asylum seekers so long as there is no adverse credibility finding, does not apply when reviewed by a circuit court or the Supreme Court.
Impact of Past Trauma on Testimony
While it is understandable for the United States to take seriously the scrutiny applied to claims for asylum, the standard set for credibility cuts against the idea of protecting people who most qualify for relief.
Past trauma can, and often does, impact an asylum seeker’s testimony. First, traumatic experiences can and often do impact a person’s ability to recount details of their past. Individuals applying for asylum are no different. Asylum-seekers experience memory loss at high rates because of past trauma and ongoing PTSD. Not only can past trauma affect a person’s memories of the trauma itself, often the crux of a person’s claim for asylum, the person may not be able to recount their experiences in chronological order.
Second, past trauma can impact the demeanor of an asylum seeker when they testify about their past persecution. Demeanor, a relevant factor in a judge or officer’s credibility determination, can be significantly altered by trauma. The effects of trauma can actually result in the appearance of certain behaviors, such as appearing nervous, sweating, or testifying haltingly, that a judge or officer may identify as signs of dishonesty. Further, because the credibility determination allows decision makers to evaluate asylum seekers’ demeanor, it increases the likelihood that these decision makers could “rely on stereotypes about how they expect a member of a particular group, such as . . . trauma survivors, to act, sound, or appear.”
Asylum applicants have the opportunity to present corroborating evidence, and are encouraged to do so in the text of the Real ID Act. This evidence can help to support a person’s testimony, especially if a judge or officer is not fully convinced by the testimony of the applicant. However, experiencing a significant trauma, having to flee a country quickly, relying on persecutors for reports, and other circumstances inherent to seeking asylum limit a person’s ability to keep thorough and complete records of their experiences.
A Reckoning is Necessary in the Treatment of Credibility in Asylum Law
The legal community as a whole is beginning to criticize and move away from reliance on memory. Asylum law in particular needs to reevaluate the treatment and importance placed on memory and credibility in asylum decisions.
As a threshold matter, decision makers, like USCIS officers and immigration judges, should take part in training to ensure that they are trauma-informed while interacting with and evaluating asylum seekers. Currently, judges and officers with little to no trauma-informed training make life-altering decisions, by finding the applicant either credible or not. By engaging in regular training on the effects of trauma on a person’s memory and demeanor, decision makers will be more readily equipped to evaluate asylum applications.
Immaterial inconsistencies should not be allowed to prevent an applicant from being found credible. Inconsistencies can currently be considered in a credibility finding “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.” This clause holds asylum seekers’ memory to extremely high standards that operate directly adversely to our understanding, or lack thereof, of how memories work. If an inconsistency does not call into question a person’s actual claim for asylum, they should not be penalized, with life-threatening consequences, for making a human mistake.
Lastly, asylum seekers should be presumed credible. Currently, “[t]here is no presumption of credibility.” Providing asylum seekers the presumption of credibility could prevent an adverse finding of credibility absent “clear, affirmative evidence establishing a reason to doubt the applicant’s testimony.” This presumption would also extend, absent an adverse credibility finding, through all levels of judicial review. Presuming an asylum seeker’s credibility would remove a substantial and often unreasonable or illogical burden for the asylum seeker, leaving the weight of their case to fall to the merits of their claim for asylum.
*Linnea VanPilsum-Bloom, J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Managing Editor