Inconsistency can doom an asylum application.

Asylum applicants must demonstrate that their stories of persecution are reliable, and few things set off judicial “reliability detectors” as much as a shifting narrative.

The problem is exacerbated by the fact that a refugee will typically go through a battery of interviews with many different authorities before her claim is adjudicated.  As the mound of interview transcripts grows, so too do the odds of conflicting testimony.   

Ming Zhang recently learned this the hard way.  Zhang, who entered the U.S. in 2003 and made a Chinese “family planning” claim – premised on protections offered for victims of China’s coercive family planning policies – was denied asylum on the basis of inconsistencies between her testimony before an immigration judge, in her “airport interview,” and in her “credible fear” interview.  Zhang’s appeal of this denial was upheld in an October 2009 decision that established new precedent in the Second Circuit on the issue of the extent to which reviewing courts may consider the record of “credible fear” interviews when evaluating an alien’s reliability. See Zhang v. Holder, No. 07-0327 (2nd Cir. Oct. 30, 2009):

[Zhang’s] asylum application emphasized that she had undergone two forced abortions and had been driven to attempt suicide.  [She] did not, however, discuss any of these events at her airport interview, or at her later credible fear interview.

Zhang, who does not speak English and was interviewed through a Mandarin translator, had told her airport interviewer that she immigrated because the Chinese government was forcing her to “have a birth control device” implanted in her, that she had been detained for refusing to submit to the procedure, and that if she was sent back she “would die.”  She repeated but did not add to those claims a week later, in a “credible fear” interview at an INS facility where she had been detained.

When asked why she did not discuss the forced abortions and suicide attempt at those interviews, Zhang said she was “confused” and did not know what to say.  She further asserted that she had mentioned “suicide” in her airport interview, and that the omission of that statement from the transcript was wrong.  This explanation did not sway the IJ, the BIA, or the federal court.

AIRPORT INTERVIEWS

Inconsistent or incomplete testimony is more tolerable in some circumstances than in others.  It has long been established, for example, that narrative gaps arising out of airport interviews – which occur immediately upon a refugee’s arrival – are more forgivable than those arising out of later proceedings.  As the Second Circuit noted in Ramsameachire v. Ashcroft, 357 F.3d 169 (2nd 2004):

The [airport] interview takes place immediately after an alien has arrived in the U.S., often after weeks of travel, and may be perceived by the alien as coercive or threatening, depending on the alien’s past experiences.  Moreover, at the interview, the alien is not represented by counsel, and may be completely unfamiliar with U.S. immigration laws and the elements necessary to demonstrate eligibility for asylum.  Finally, because those most in need of asylum may be the most wary of government authorities, the … reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview.

For these reasons, the Ramsameachire Court found that immigration judges determining the reliability of airport interviews should “accord weight to any discrepancies between the airport interview and later statements in light of the relatively superficial nature of the airport interview.”

CREDIBLE FEAR INTERVIEWS

But inconsistencies in credible fear interviews, the Second Circuit held in Zhang, are less excusable.  Credible fear interviews are different from airport interviews in that they: occur at a later date, are more formal, and are less likely to be perceived as coercive.   

[A] credible fear interview appears to fall somewhere on the spectrum of reliability between an airport interview and an asylum interview when one considers its relative formality … and its ability to elicit all the details supporting an asylum claim.

 On the other hand, the Court also noted that refugees appearing at credible fear interviews have ordinarily been detained since their arrival and are therefore “likely to be more unprepared, more vulnerable, and more wary of government officials than an asylum applicant who appears for an interview before immigration authorities well after arrival.”

For these reasons, the Zhang Court concluded that “credible fear interviews are more similar to airport interviews than asylum interviews and therefore warrant the close examination called for by Ramsameachire. 

Notwithstanding this heightened scrutiny and increased leeway, the Second Circuit upheld the immigration courts’ determination that Zhang had been unreliable.  “Here, petitioner’s credible fear interview, like her airport interview, bears sufficient indicia of reliability to warrant its consideration by the agency.”

The upshot?  In the Second Circuit, the records of credible fear interviews, like those of airport interviews, will be sufficiently reliable to merit consideration if they are “conducted in a non-coercive and careful manner,” and if they are “appropriately documented by interviewing authorities.”