In an asylum case, one of the most difficult determinations for the fact finder is the alien’s credibility: Is the alien telling the truth about his claim?

Over time, various courts have weighed in on how to determine whether an alien is telling the truth.  There is an excellent resource about the case law on credibility available from EOIR here (click where it says “Circuit Credibility Outline”). 

One of the main methods used to determine credibility is to to look for inconsistent statements in an alien’s testimony and evidence.  In some ways, this is an effective means of judging credibility.  For example, I know of a case where an Ethiopian asylum seeker claimed to have been detained and mistreated by her government.  DHS had evidence that the asylum seeker had actually been living in Italy for many years, including during the period that she claimed to have been detained in Ethiopia.  Thus, it was pretty clear that her claim was fraudulent.  However, the vast majority of inconsistencies are far more subtle.

A much more common scenario is where an alien is found incredible because he gives the wrong date for an arrest or participation in a political event.  Such an inconsistency tells us little about whether the alien is lying or telling the truth because human memory does not work that way.  Most events are not tied to a particular date in our memories. 

For example, I was once in a car accident.  I remember many details of the accident, but I cannot tell you the day (or month or year) that it happened.  As a lawyer, when I sit in my office preparing the client’s affidavit, I ask him to list all the dates as accurately as possible.  Often, this involves figuring out or estimating the correct date.  Once we have agreed upon the (hopefully) correct date, the client memorizes that date.  So in Court or at the Asylum Office, the client is not actually remembering the date of the event.  Instead, he is remembering the date that we reconstructed in my office.

This means that the recitation (or regurgitation) of dates to the fact finder may be a decent test of the alien’s memory, but it is of little value in assessing his credibility. The corollary, of course, is that failure to remember dates–except in the most egregious circumstances–should not be used to support a negative credibility finding. 

Another technique to evaluate credibility is to look for inconsistencies between an alien’s testimony and the testimony of her witness.  However, this is not very reliable either.  I tried a little experiment recently that illustrates the point: Last semester, I co-taught Immigration Law and Policy at George Mason University.  My co-teacher and I had dinner a month prior to the class.  To demonstrate a marriage interview to the class, the co-teacher waited outside and the students asked me a series of questions about the dinner.  She returned and they asked her the same questions.  Our answers were only partially consistent.  The class then voted on whether we actually had dinner.  About half the class thought we had dinner; the other half thought that we were lying about having dinner.

Now if this is the level of consistency when two immigration lawyers are questioned about a recent event, it seems likely that non-lawyers who are not familiar with the U.S. immigration system might respond inconsistently to questions about more distant events.  Therefore, it is unfair to base an adverse credibility finding on minor inconsistencies between a respondent’s and a witness’s testimony.

In a future posting, I will discuss other methods of determining credibility.