I recently prepared an asylum case for a married lesbian woman. The case was complicated by the fact that my client had multiple nationalities, and I was concerned about one country where she held citizenship, and where conditions were less bad for LGBT people (at least when compared with her other countries of nationality). My focus was on gathering evidence about country conditions to support her claim, and I forgot to look at another key aspect of the case–my client’s wife had a pending asylum application of her own.
As these things often go, I was reviewing the case prior to the Immigration Court hearing when I noticed the issue. I spoke to my client and learned that the wife’s case included information that would have been helpful for my client’s case. So now I had a dilemma: Should we amend our case at the last minute and risk harming my client’s credibility (when she tried to explain the change) or say nothing and forgo the opportunity to include helpful evidence? (more…)
In 1993, Tara Reade was a legislative aid for then-Senator Joe Biden. In 2019, she went public with an allegation that Mr. Biden “used to put his hand on my shoulder and run his finger up my neck.” She says she complained about the behavior after it happened, but then faced retaliation, which caused her to leave her job. In March of this year, Ms. Reade stated that on one occasion, when she was alone with Senator Biden, he pushed her against the wall “and then his hands were on me and underneath my clothes. And then he went down my skirt, but then up inside it and he penetrated me with his fingers. And he was kissing me….” In her 2020 statement, Ms. Reade indicated that she made a contemporaneous complaint alleging sexual harassment, but not sexual assault. Several people–including Ms. Reade’s brother and a friend–have stated that she told them about the assault years ago, and there is some evidence that Ms. Reade made a complaint during her time in the Senate.
Ms. Reade’s allegations got me thinking: How would her testimony and evidence be evaluated under the standard applied to asylum seekers testifying in Immigration Court? Let’s start with the legal standard, as set forth in INA § 208(b)(1)(B)(iii)—
[A] trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record… and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
For-Biden touching or Reade-iculous allegation? You decide.
So right away, we can see an issue: Ms. Reade states that she complained about sexual harassment in 1993 and she publicly claimed sexual harassment in 2019, but then in 2020, she stated that she was also the victim of a sexual assault. This is an inconsistency.
But an inconsistent statement is not necessarily fatal to a credibility determination. Applicants must be given an opportunity to explain any inconsistencies. In our case, Ms. Reade stated that she did not disclose the assault in 1993 because she was traumatized, and that she did not mention it in 2019 because she was uncomfortable with the interviewer’s questions and fearful of a backlash against her. She decided to reveal the full story in 2020 because she felt she needed to do so for her daughter and for other victims of sexual assault, and because she felt Joe Biden should apologize.
Once a witness provides an explanation, the decision-maker has a certain amount of leeway to evaluate that explanation. According to the Board of Immigration Appeals, “An Immigration Judge is not required to accept a respondent’s assertions, even if plausible, where there are other permissible views of the evidence based on the record.” Where does this leave us? Nowhere too helpful, I would submit.
On the one hand, we could find Ms. Reade’s testimony incredible, since it has changed over time and her most recent (and most serious) allegations are different from what she allegedly claimed in 1993 and what she described in 2019. On the other hand, she has presented an explanation for the inconsistency, which is based on the trauma and shame she suffered, as well as on her fear of further harm. Given this evidence, a reasonable fact-finder could decide either way on credibility, and such a decision would likely survive an appeal (where factual findings are subject to a “clearly erroneous” standard of review).
Since the decision-maker could go either way, what would account for a particular decision? In Ms. Reade’s case, the decider’s view of sexual assault in general would be one factor. Do victims make false accusations? Do perpetrators deny their guilt? How much evidence is enough? In this particular case, I imagine partisan loyalty would also be a factor for many decision-makers, especially in such a hot political environment where an allegation of sexual assault could impact the upcoming election. And speaking of partisan loyalty, what about Ms. Reade’s political views? Are they relevant to impugning or bolstering her claim? What about the fact that she is exposing herself to terrible harassment (and maybe worse). How do we weigh these factors in terms of evaluating her motive? Also, how do we account for other women accusing Joe Biden of inappropriate touching? Do these allegations weigh against him (because he engaged in inappropriate conduct) or in his favor (since that conduct seems not to have risen to assault)? In short, it seems to me that the decision about Ms. Reade’s credibility tells us more about the fact-finder’s views than about the facts of her case.
If I am correct about Ms. Reade’s claim, what does this mean for credibility in asylum cases? In some ways, the situations are analogous. We have to listen to a witness and evaluate credibility. It’s also fairly common for asylum applicants to change their stories over time. This may be legitimate (it often takes time and trust to extract painful details from a traumatized person) or not (some applicants seek to bolster their claims by lying). As with Ms. Reade’s case, there is often additional evidence, which also needs to be evaluated for credibility and evidentiary value, and in cases where this evidence is strong, it may be determinative of credibility. In other cases, the credibility determination will depend largely on the decision-maker’s inherent biases. I suspect this is largely what accounts for the arbitrariness of asylum adjudication.
In Ms. Reade’s case, I doubt we will ever see a definitive answer about her claims. They are too old and too subsumed by partisanship to be resolved with much confidence. Many asylum claims are also not amenable to a definitive conclusion due largely to limited resources (of the applicant and the adjudicator). In both situations, we are left with our own biases, which are a poor substitute for knowing the truth.
This article is by Aldis Petriceks of Harvard Medical School, Erin Shortell of Harvard Law School, and Dr. Francis X. Shen, JD, PhD. Executive Director, Massachusetts General Hospital Center for Law, Brain, and Behavior; Instructor in Psychology, Harvard Medical School; Senior Fellow in Law and Applied Neuroscience, Harvard Law School Petrie-Flom Center.
The success of an asylum claim relies, to a large degree, on the perceived credibility of an asylum seeker’s memory. The Real ID Act of 2005 states that “[t]he testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee” (emphasis added). Asylum officers and immigration judges are told, in a sense, to act as mind readers, subjectively deciding whether or not to believe the narratives of asylum seekers.
But how do judges and asylum officers assess credibility? Additional evidence, such as physical signs of abuse or country-level evidence of systematic torture, can bolster credibility in this context. But such evidence may not be available, and even if it is, credibility assessments still turn on asylum adjudicators’ subjective perceptions of asylum seekers’ memories.
Introducing your authors: Aldis Petriceks, Erin Shortell, and Francis X. Shen.
Credibility determinations thus often rest on the consistency (or lack thereof) in an asylum seeker’s story. The REAL ID Act provides that “ … a trier of fact may base a credibility determination on … the consistency between the applicant’s or witness’s written and oral statements … , the internal consistency of each such statement, the consistency of such statements with other evidence of record … , and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”
Asylum applicants will often recount their stories at multiple points in the legal journey, including immediately upon entry into the U.S.; in a subsequent written affidavit; and before an asylum officer or immigration judge. If inconsistencies or inaccuracies emerge, the asylum adjudicator often infers that the asylum seeker intends to deliberately mislead him or her.
There is, of course, a logic to this inference. If the story changes, one might reasonably infer that the storyteller is purposely crafting a narrative more favorable to a preferred legal outcome.
Intuition is important, but decades of research into the neuroscience of memory suggest that such intuitions need to be carefully examined. Research conclusively shows that memory is not a digital recording of our lives, and thus changes in asylum seekers’ narratives over time may not be due to deliberate deception but rather to the nature of human memory itself.
Autobiographical memories are not accessed as one might re-watch a scene from a movie. Rather, memories are “dynamically reconstructed mental representations,” and they change every time they are retrieved and recounted.
Memory scientists typically talk about three phases of a memory: Encoding (when the sensory systems first register the sights, sounds, smells and more of an event); storage (when that memory gets tucked away in the brain for later use); and retrieval (when the memory is consciously recalled). Context affects each of these stages. Of great relevance to asylum seekers’ credibility is the well-known finding that trauma and stress affect how memories are initially encoded, whether and how they are stored, and how we consciously recall them.
The bottom line for credibility is that inconsistencies in autobiographical recall may not reflect a willful attempt to bend the truth, but rather the biological reality that recalling memories usually involves modification of those memories in ways of which most people are not fully aware.
Do asylum adjudicators take notice of this neuroscience? In theory, they could. The Refugee, Asylum, and International Operations Directorate (“RAIO”) Manual for Officer Training tells officers that it is “[their] job to determine whether those inconsistencies and/or contradictions are due to a lack of credibility or may be explained by other factors.” One of these “other factors” is the basic neurobiology of trauma and memory. But in practice, it is difficult to gauge the extent to which asylum officers abide by this instruction.
What would it mean for asylum adjudicators to better understand the relationship between memory, narrative inconsistency, credibility, and the human brain? To begin, it would entail the realization that many asylum seekers have endured tremendous trauma, and that this trauma often has documented effects on memory. Asylum seekers who have experienced trauma in their home countries, on the way to the U.S., or upon entry into the U.S., are often burdened by these effects. Brain scan research on individuals with PTSD, for instance, finds decreased activity in the brain networks associated with autobiographical memory, and an associated decrease in specific autobiographical recall. Given the prevalence of PTSD among asylum seekers, it is likely that many otherwise credible refugees will fail to describe their journeys, fears, and traumas in a detailed, coherent manner across multiple interviews. This failure, however, does not necessarily indicate a lack of credibility.
Acute stress often interferes with autobiographical memory. People perform more poorly on memory tests after injections of hydrocortisone, a compound which mimics the effects of cortisol on the body. When faced with significant trauma, children often recount memories in a vaguer, less detailed manner, regardless of the presence or extent of primary psychological conditions.
It remains unknown exactly how trauma and memory are related in the brain. Some researchers believe that trauma leads to an over-general mode of autobiographical memory largely because the exclusion of detail might prevent re-traumatization. Others argue that trauma directly alters the activity of certain neurological networks, changing one’s ability to retrieve and recall specific memories. Regardless of the particular theory embraced, however, there is general agreement that people with histories of trauma have more altered capacities to remember specific details of events in their lives, and that those alterations are at least associated with measurable changes in neurological structure, function, and physiology.
So far, this neuroscientific knowledge has not been widely introduced to asylum officers or immigration judges. When these adjudicators determine that an applicant is not credible, “they overwhelmingly rely on inconsistencies within or among the various versions of the applicant’s story.” Can this gap between scientific understanding of memory and legal practice be bridged? At the MGH Center for Law, Brain, and Behavior, we think the answer is yes—with sustained effort and input from multiple disciplines.
Three areas are ripe for exploration. First, attorneys and judges need an improved understanding of how autobiographical memory works. To be sure, memory neuroscience cannot provide an asylum officer or immigration judge with an individualized “credibility detector.” But neuroscience can provide evidence for re-examining default presumptions that tend to equate inconsistency with deliberate falsehood.
Second, scientific articles standing alone are not sufficient to inform legal doctrine and practice. Actionable neuroscience requires the development of materials that can be readily adapted by lawyers to put forth arguments related to neuroscience, memory, trauma, and credibility.
Third, extended dialogue is required to explore both the promise and pitfalls of introducing neuroscience into asylum case law. For instance, might neuroscience memory research allow government lawyers to challenge otherwise consistent recollections? Just as a criminal defense attorney might call a “false memory” expert to aid his or her client’s defense, could similar arguments be made in the asylum context to undercut genuine claims of persecution? These and other concerns must be adequately addressed as part of an on-going law and neuroscience dialogue.
As with any new endeavor, the path for neuroscience and law in asylum cases is not clear. But there is much promise, and we hope there will be much more dialogue in the future.
About the MGH Center for Law, Brain, and Behavior: The Center for Law, Brain, and Behavior works at the vanguard of applied neuroscience, making neuroscience actionable for the legal community in order to ensure just and positive outcomes for all those affected by the law. Though the brain and the law are both complex, our work is quite simple: helping judges, lawyers, case workers, enforcement agents and many other actors across the legal ecosystem determine the right solutions for the right people and cases. We promote and enable the sound application of accurate neuroscience to critical areas of the legal process: criminal trials and sentencing, juvenile justice, elder protection and immigration enforcement and asylum. For more, see clbb.org.
One of the most disheartening phrases to hear at an asylum interview is when the Officer says, “Government records indicate that…” This usually means the government has information contradicting the applicant’s testimony. Here are a few examples from a couple recent interviews I attended:
Government records indicate that you applied for a visa from a third country. Can you explain why you said you never applied for any other visas?
Government records indicate that you traveled outside the United States since your first arrival here. Can you explain why you said you had not left the U.S. since that time?
Government records indicate that your neighborhood in Syria was controlled by rebel forces at that time. Can you explain why you said the neighborhood was under government control?
The first two questions were for a Pakistani client. The third question was for an Iraqi. Both applicants were denied and referred to Immigration Court.
If your nickname is “Incredible,” it does not bode well for your asylum case.
As I see it, there are a number of problems with these “gotcha!”-type questions. For one, they are vague, in that the Asylum Officer does not state exactly what information the government has, and it is difficult to adequately respond to a question that you really don’t understand. For another, some of these questions rely on information that is easy for the applicant to forget or overlook. Finally, the “gotcha!” information possessed by the government is not always accurate.
In the first example above, it seems unfair to impugn an applicant’s credibility based on his failure to remember applying for a visa years after the fact. It’s not really a major life event, and if the person did not actually get the visa and visit the country, it’s easy to see how he might forget about filing a visa application (especially since some applications are done online and the person may never even have visited the country’s embassy).
In the other examples above, the government’s information seems to be inaccurate. My Pakistani client swears he never left the U.S. since he first arrived here, and I believe him–he has no reason to lie and his I-94 record, available at the CBP website, does not indicate that he re-entered the country after his initial arrival. In the case of my Iraqi client, she was simply baffled to hear that her neighborhood was controlled by non-government forces. She says she lived in that neighborhood the entire time, and I trust her on-the-ground experience over the government’s “information.” Of course, it is possible that my clients are incorrect, or that–for some indiscernible reason–they are lying, but in these example, I have more confidence in them than I do in the government.
What’s important to understand here is that the United Sates government wants to test an asylum applicant’s credibility, but it has limited means to do so. Asylum Officers can question applicants extensively to try to ferret out lies, but a more effective approach is when the Officer can compare an applicant’s testimony with information the government knows to be true. And the government knows a lot. It knows about every U.S. visa you have ever applied for–and what you told the embassy during the visa application process. It knows about visa applications to other countries (which countries share such information with the U.S., I am not sure, but it is safest to assume that the government knows about any visa application to any country). It knows about applications made to the United Nations. It knows a lot about a person’s travel history. It also knows about your relatives’ travel and visa histories (including ex-spouses). The government knows about any arrests or contacts with U.S. (and perhaps some foreign) law enforcement. Of course, it knows about any other U.S. immigration application made by you or your family members, and it probably has copies of all such applications. The government may know about your employment and education histories, and whether you have used any other names. The government also knows about conditions in your home country, including information about political parties, rebel groups, and terrorist organizations.
In short, Asylum Officers can–and do–gather significant independent evidence about a person’s case. Even where this evidence does not bear a direct relationship to the asylum claim, they can compare that evidence to your testimony and use that to determine whether you are credible (and remember, for the Asylum Office, inconsistent = incredible). If the Asylum Officer determines that your testimony is incredible because, for example, you lied about how you obtained your visa, she could conclude that you are lying about other, more significant, aspects of your case. If that happens, your application for asylum is likely to be denied.
So what do you do? First, don’t lie. Even about small things that you think are insignificant. The Asylum Officer may ask you questions about aspects of your life that seem irrelevant or embarrassing. If that happens, think about why they might be questioning you on that topic. What might they know? Do your best to answer honestly. Don’t guess! If you guess wrong, the Asylum Officer might assume you are lying. If you don’t remember or do not know, tell the officer that you don’t remember or you don’t know.
Also, prior to the interview (ideally, when you prepare the affidavit), think about the times when you (or your family members) had contact with the U.S. government, the UN, or other foreign governments. What did you say on your applications and in your interviews? Did you lie? If so, the time to admit that is in your asylum affidavit and at the asylum interview. You are much better off affirmatively coming clean and explaining any old lies than hoping that the Asylum Officer won’t know about them. Correcting the record in this way does not guarantee that the old lie won’t be used against you, but in most cases, adjudicators appreciate the honesty and they are more likely to forgive a misrepresentation that you bring to their attention than one that they bring up in a “gotcha!” question. In addition, in many cases, the law forgives an asylum applicant for lying, if that lie was necessary for the person to get a visa and escape from her home country. Affirmatively coming clean is usually the safest approach for people who have something negative in their history.
Turning back to the above examples, maybe the best response to the first question would have been for the applicant to think about why the officer was asking him about other visa applications. If he was not sure about his answer, he might have replied, “I don’t remember applying for a visa to a third country, and so I am not sure whether I did or not.” This type of equivocal answer would at least have made it more difficult for the Asylum Officer to impugn the applicant’s credibility.
What about the second two examples, where the government’s information seems to be wrong? Here, I don’t know what the applicants could have done, other than to state that the Asylum Officer’s information is not correct. That is what my clients did, but obviously, it was not enough. The hope now is that, with the cases referred to court, the DHS attorney (the prosecutor) cannot rely on vague accusations–they will have to provide specific evidence of their claims (that client A traveled outside the U.S. or that client B’s neighborhood was controlled by a rebel group). If we are allowed to see the government’s evidence, we can (hopefully) refute it.
In an asylum interview, honest is the best policy. And if you don’t remember or don’t know, it is best to say that. Finally, if there are “issues” in your past, it is best to bring those up affirmatively and explain them in your asylum application. In these ways, you can improve your credibility and increase the likelihood of a favorable outcome in your case.
The case of Detroit-area immigration lawyer David Wenger has been in the news lately. Mr. Wenger was recently sentenced to 18 months in prison for counseling his client to lie to the Immigration Court.
Mr. Wenger’s client is a 45-year-old Albanian citizen who has lived in the U.S. since he was six months old. The client’s family, including his daughter, live in the United States as well. Apparently, the client landed in removal proceedings due to a 2013 controlled-substance conviction, but the source of Mr. Wenger’s troubles stem from the client’s decades-old conviction for criminal sexual misconduct.
It seems that Mr. Wenger feared that if the Immigration Judge became aware of the sexual misconduct conviction, the client would have been deported. Having witnessed the tragedy of deportation many times, and particularly the pain it causes to the children of the deported, Mr. Wenger took matters into his own hands and tried to cover up the old conviction. It didn’t work.
Now, Mr. Wenger is going to jail and the client–while still in the United States–faces an uncertain future.
Mr. Wenger’s tale has caused some buzz among my fellow immigration lawyers. Mostly, it is described as “sad,” and certainly there is an undercurrent of sympathy for a man whose advocacy crossed a line that we, as lawyers, are trained to approach. I’ve known criminal defense lawyers, for example, who say that if you don’t go to jail for contempt once in a while, you’re not doing your job. And certainly there is an element of truth to this: When you are advocating for an individual against The Man, you have to use all the tools at your disposal and push the limits of the law to protect your client. That is our job–and our duty–as lawyers. But such zealous advocacy has inherent risks, as Mr. Wenger’s story reminds us.
So I suppose I understand Mr. Wenger’s motivation to lie. But I do not understand how he thought he might get away with it in this particular case. The U.S. government keeps records of criminal convictions, and the DHS attorney in the case would likely have known about the old conviction. So even if you are not morally opposed to lying, I don’t see the point of lying about something that the government knows already.
The temptations faced by Mr. Wenger are amplified in my practice area–asylum–where the U.S. government rarely has independent evidence about the problems faced by asylum seekers overseas, and significant portions of most such cases depend on the client’s own testimony. I’ve encountered this myself a few times when clients have asked me to help them lie (“Would my case be stronger if I said X?”). How to handle such a request?
The easy answer, I suppose, is to tell the client to take a hike. That is not my approach. I am sympathetic to people fleeing persecution who do not understand the asylum system, and who think that lying is the only way to find safety (and who often come from places where lying to the government is necessary for survival). In many cases, such people need to be educated about the U.S. asylum system. When a client asks me to lie, I explain that as an attorney, I cannot misrepresent the truth. I also explain why lying will likely not help achieve the client’s goal, and how we can present the actual case in a way that will succeed. Hopefully this is enough to convince the client to tell the truth.
For individual clients, of course, this type of honesty sometimes has its drawbacks: Cases may be lost, people may be deported–possibly to their deaths, and families will be separated. Some lawyers find this price too high. If you believe your client will be deported to his death and you can save him by lying, perhaps the lie is justified. Mr. Wegner, no doubt, felt that he was doing the right thing for his Albanian client (though a review of Mr. Wegner’s disciplinary record reveals that he has not always served the best interests of his clients). And there are certainly attorneys who believe that the ends justify the means. But I am not one of them.
When all is said and done, I will not lie for a client. I don’t think it is effective, and even if we get away with it in one case, I fear that it would hurt my credibility as a lawyer–and thus my ability to be an effective advocate–in all my other cases. I also feel that it damages the system, which hurts honest applicants.
In the final analysis, even if we ignore his other disciplinary issues, it is difficult for me to feel too sorry for Mr. Wegner. While a lawyer’s zealous representation of his client is admirable, the willingness to cheat corrodes our immigration system and ultimately harms the very people that lawyers like Mr. Wegner purport to help. For me, even the argument that lying is a necessary form of civil disobedience in an unjust system falls flat. Civil disobedience is about sitting at the lunch counter; not stealing the food.
Despite all the imperfections of the immigration system, our primary job as lawyers is to work within that system to assist our clients. We also have a role to play in criticizing and improving the system. But when lawyers lie, we fail as both advocates and as reformers.
You may already be familiar with the story behind the story of The Cuckoo’s Calling, a novel published under the name Robert Galbraith. Turns out, there is no Robert Galbraith. The story was actually written by J.K. Rowling, of Harry Potter fame. Ms. Rowling hoped to publish the new novel without the Potter baggage, but she was foiled by Patrick Juola, a professor at Duquesne University.
Stylometrists are always stylish. Prof. Juola (left) dressed as GQ man Abe Lincoln.
Prof. Juola is a mathematician who created a computer program–the Java Graphical Authorship Attribution Program (Jgaap)–that can recognize writing tics undetectable by human readers. According to the Chronicle of Higher Education, Prof. Juola “loaded an electronic version of Cuckoo into Jgaap, along with several other [of Ms. Rowling’s] texts.” The program then
compare[d] the sample texts to the Galbraith text using four variables: word-length distribution; the use of common words like “the” and “of”; recurring-word pairings; and the distribution of “character 4-grams,” or groups of four adjacent characters, words, or parts of words.
The findings were not unequivocal, but they made a pretty strong case for Ms. Rowling as the author of Cuckoo. Confronted with this and other evidence, Ms. Rowling admitted her authorship of the book. She told an interviewer that she would have liked to remain anonymous for a while longer stating that, “Being Robert Galbraith has been such a liberating experience… It has been wonderful to publish without hype and expectation and pure pleasure to get feedback under a different name.”
Stylometry, which is the application of the study of linguistic style, has broader uses than just outing famous authors. It is often used to attribute authorship to anonymous or disputed documents. It has legal as well as academic and literary applications, ranging from the question of the authorship of Shakespeare (whose works were obviously written by Francis Bacon!) to forensic linguistics. It also has application to the world of asylum.
Prof. Juola reports that he used his techniques to help an asylum seeker prove that he was the author of several politically charged articles that had been published anonymously on the internet. According to the Professor’s website, “Using statistical linguistics, we were able to analyze the writing style against an ad-hoc collection of distractor authors and to establish using non-parametric rank-order statistics that the documents had indeed been written by the [asylum] seeker.” In other words, Prof. Juola demonstrated a statistical likelihood that the asylum seeker authored the articles in question. Apparently, this evidence was helpful in the case, as the Immigration Judge granted political asylum.
I was interested to read about Prof. Juola’s work, as I faced a similar issue for an Ethiopian asylum seeker some years ago. He claimed that he wrote newspaper articles under a pseudonym, and those articles were offensive to the government. Somehow, his identity was exposed after he left the country, and he feared persecution if he returned. We needed evidence of the client’s authorship, and so I asked him for the usual stuff–rough drafts of the articles, a letter from the newspaper editor, letters from other people who knew about what he had written. In the end, we had to rely on letters from people who knew him and on his own testimony. Fortunately, it proved to be enough, and he received asylum.
Had I known about Prof. Juola, perhaps I could have used him to assist us in the case (though generally, my clients do not have a lot of money for expert witnesses). While the professor’s analysis cannot demonstrate with 100% certainty that a particular person wrote a particular article or book, Prof. Joula could possibly provide additional support to help corroborate a claim. In a close case, this could make the difference between a denial and a grant.
In this series, I have been writing about methods for determining whether an alien is telling the truth. So far, I have examined inconsistencies, demeanor, and lack of detail, and I have posited that none of these methods is very reliable. Today, I will examine one method that I have long felt was the least reliable, but as I’ve worked on more cases, I have begun to believe that it actually may work better than other techniques used to determine credibility. I am speaking about plausibility.
First, what do we mean by plausibility? When a fact finder determines that an event is not believable, it is implausible. For example, I worked on a case where the Immigration Judge found my client’s testimony implausible. The client was an Ethiopian political activist who passed through government security at the airport even though a warrant had been issued for her arrest. The IJ did not believe that a person wanted by the government could pass through airport security.
Unless your name is Big Daddy, you probably can't smell the mendacity.
The reason I previously felt that plausibility was a poor basis for determining credibility is because it is difficult to know what is plausible. In the above example, it turns out that many high-level political activists who had been jailed by the government were able to leave the country through the airport. In my case, we presented this evidence and my client received asylum.
As I’ve thought about it more, I’ve come to believe that my case was decided in the proper way. The IJ was concerned about a legitimate plausibility issue. We presented evidence to satisfy that concern. The case was granted.
The astronomer Carl Sagan famously said, “Extraordinary claims require extraordinary proof.” Mr. Sagan’s axiom can be applied in the asylum context. Where an alien makes a claim that the IJ finds implausible, the alien should be given an opportunity to demonstrate that the claim is, in fact, plausible. The more implausible the claim, the better evidence the alien will need to demonstrate plausibility. This seems like a reasonable method for assessing credibility.
If there is a conclusion to this short series on credibility, I suppose it is that no method of determining credibility is all that reliable. This problem exists in all areas of the law, but it is particularly acute in the asylum context where so much rests on an alien’s unsupported testimony. The various methods of determining credibility can certainly help suss out the most egregious untruths, but beyond that, I have real doubts about their effectiveness. In the end, the fact finder must reach a conclusion using the imperfect tools that are available. Given all that rides on these decisions, it’s not a task I envy them.
I previously wrote about how credibility determinations based on inconsistencies are not reliable. Today, I want to discuss a couple more methods that I think don’t work, and next time, I will write about one method that seemingly doesn’t work, but might actually be a better test for credibility than the other methods. First, two methods that don’t work well:
Demean girl.
– Demeanor. Fact finders often judge credibility based on the alien’s demeanor during testimony. Demeanor includes things like “body language,” “looking at the judge,” “responsiveness” to questions, and whether the alien’s answers are “vague.” Such evaluations are quite subjective and–because the IJ actually sees the respondent in person while the BIA does not–are subject to great deference by reviewing courts. The problem, of course, is that cultural differences and different personalities can be confused with deceptive demeanor. This is particularly true in asylum cases, where the applicant often has faced persecution by the authorities, and is nervous to present herself before a tribunal. These issues, and the inability for reviewing courts to overseas demeanor determinations, make demeanor a poor method for judging credibility.
– Lack of Detail. This is one that you see on referrals from the Asylum Office, but it’s not so common in Immigration Court. My initial reaction when I see this is to blame the Asylum Officer. If the Officer wanted more detail, she should have asked more questions. But I know this is not exactly what is meant by “lack of detail.”
Demeanor girl.
An example will illustrate the point. An asylum seeker (represented by my friend) was asked to describe the conditions of her detention. She responded: “I was locked up and I was interrogated.” The Officer repeated the question and received a similar answer. As my friend points out, even someone who has never been to prison knows that detained people are locked up and interrogated. Thus, this testimony lacks detail because anyone–whether they had been detained or not–could have provided it. In this situation, the Asylum Officer or her attorney should have asked additional, more specific questions, such as “What did you do every day in detention?” “How was the food?” “Describe your prison cell,” etc. If the applicant could not provide additional information, a finding of “lack of detail” would be appropriate.
The reason I think “lack of detail” is a poor basis for credibility determinations is because Asylum Officers and immigration lawyers don’t always ask enough questions to distinguish between an alien who is unable to provide additional detail versus an alien who does not provide additional details because he does not understand the type of information the Asylum Officer is looking for.
Obviously for both “demeanor” and “lack of detail,” where there are egregious problems with the alien’s testimony, he can properly be found incredible. However, in many run-of-the-mill situations, these methods are not a reliable measure of whether the alien is telling the truth. In a future post, I will discuss some methods of judging credibility that might be more effective.
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.
Someone named Mr. Incredible would probably not do well in Immigration Court.
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.
