Communication Currents

Roughly 50,000 people from other countries apply for asylum in the United States each year. Approximately 15,000 of those cases must be heard in one of the 55 U.S. immigration courts alongside the rest of 335,000 immigration-related cases these immigration judges must decide. As a consequence of this overwhelming caseload, immigration judges rarely have time to spend pondering the complex details of the asylum cases they hear. And as a result of the Real ID Act, they are not obligated to. Instead, judges increasingly base their rulings on three communicative conventions of credibility: the clarity and fluency of a claimant's speech, the reason and consistency of their testimony, and the plausibility of their emotional displays.

Asylum seekers arrive in the U.S. and claim that they need refuge in this country because they fear persecution. To gain this protected status, asylum seekers must demonstrate that their experiences qualify them as a refugee, or “someone outside his or her own country and unable to return as a result of a well-founded fear of persecution on grounds of race, religion, nationality, public opinion or membership of a social group.” Depending upon their immigration status at the time, the claimants' cases are either reviewed by an immigration officer in an affirmative interview process, or before a judge in a defensive process. The Real ID Act has most impacted this second process.

In 2005, President Bush signed the Real ID Act into law. The Act changed asylum protocol, allowing immigration judges to deny asylum based on perceived inconsistencies in testimony in what are known as credibility rulings. Judges have always evaluated the credibility of asylum seekers. The Act, however, allows judges to base their decisions solely on perceived problems with credibility, rather than evaluating whether the claimant's experiences meet the legal refugee standards. Because these rulings can now be used so extensively, it is important to understand how credibility is evaluated.

First, through standards of good speech, asylum seekers who do not present their claims with clarity of voice, including appropriate volume, pitch, rate, diction and force, may be considered adversely credible. The convention is used when claimants give testimony in English, but judges also use it in asylum cases where a translator is used.

In her case, Togo citizen Afi Apouviepseakoda gave testimony in French while a translator relayed her words in English. Despite hearing the testimony, in effect, second-hand, the judge was aggravated by Apouviepseakoda's soft-spoken speech pattern. The judge told her “[Y]ou have to speak up so I can hear your voice. Today passiveness and demureness is not the regiment of the day. Today aggressiveness and loudness is the regiment of the day and you can even scream at the Court. I will not take offense to that, but I want to hear your voice.”

Judges also evaluate the internal consistency of a claim through the convention of narrative rationality. Asylum seekers must give testimony to events that seem probable to the judge. And, if a case seems too extreme to be true, judges are inclined to find the case unbelievable, or made up for the purposes of gaining asylum.

Ghanaian Lorraine Fiadjoe faced this dilemma when she reported that she was “enslaved to the priest,” her father, at the local shrine in order to make up for a family member's sin in accordance with her family's religion. After hearing what he found to be the “incredible” events of Fiadjoe's life, the judge ruled, “The Court concludes that the respondent is making up her testimonyas she is going along, she's making up these scenarios and she is fabricating her testimony to the Court.” This convention of narrative rationality is premised upon the assumption that political subjects with worthy claims to political refuge are modern, rational individuals who can tell logical, linear, plausible stories.

In addition to plausible stories, asylum seekers must also be able to repeat their testimony, audibly or in written record, with consistency and accuracy in reporting the details. This convention holds that someone who is telling the truth about past events should be able to remember simple facts about her/his life, such as dates and places, and easily recite those facts.

While the precedent concerning credibility states that “minor errors or inconsistencies do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible,” minor discrepancies are often enough for a judge to find the asylum seeker adversely credible.

In Senegalese Awa Niang's case, the judge created a list of all the inconsistencies he found in her case, including, among other things, that she lied about her immigration status to gain employment in the U.S., and that she listed her parent's house as her home when she no longer lived there. The list he provided gave the appearance that the case was full of errors, when in reality the inconsistencies were not at all relevant to her claim of persecution on the basis of female genital cutting.

The path an asylum seeker takes in getting to the United States additionally influences a claimant's ability to be read as credible. Entering the United States illegally, forging documents, failing to file for asylum within one year of entry, or working illegally are all immediate strikes against the probability that a judge will believe that a claimant was truly politically persecuted. These factors, of course, privilege upwardly-mobile and politically-connected individuals with enough capital or connections to travel to the United States with their own passports and visas in hand. It assumes that someone who fears political persecution should have enough political cache of their own to get out of the country.

Finally, the measure of appropriate emotionality involves assessing whether the asylum seekers' emotional display in the court match the claimant's identity and the severity of the claim. This convention works through the assumption that words deceive but the body never does. Unfortunately, the convention obscures how difficult it is for asylum seekers to speak openly and directly about their past. There is often pain and loss associated with past events. Claimants may feel shame about what happened to them. They may also experience trauma. These feelings can result in a hesitancy to talk, vague descriptions, or even deception about the past. Claimants may cry profusely during testimony, while others may re-tell events of the past in a manner that is void of emotion. These traumatic reactions and coping mechanisms do not work favorably in a credibility ruling. Instead, emotion presented in the courtroom must match the judge's expectations of emotion in accordance with the claimant's identity.

Credibility is certainly not the only factor used by immigration judges to determine cases, but it has been an increasingly prevalent option in justifying negative decisions without evaluating the entirety of the case. Furthermore, the increase in power to decide cases on credibility is one recent change, among many, that makes claiming asylum a daunting task. Asylum seekers must file for asylum within one year of entry in the United States, they must present documentation to evidence their persecution, and they can be deported before their appeal is reviewed. Moreover, through a last-hour rule invoked by President Bush in December of 2008, they do not have the right to appeal if their legal representation is at fault.

Credibility decisions can certainly be appealed, and often are, but the record of these appeals reveals that the higher courts of the Board of Immigration Appeals (BIA) and the U.S. Court of Appeals frequently agree with the immigration judges without offering decisions that would clarify the credibility determinations. Since immigration judge rulings cannot become precedent, something that can only be done through the BIA or higher Federal Courts, proper standards for assessing credibility are never offered.

Rather, standards remain elusive. The lack of criteria results in vast discrepancies in who is recognized as credible, reinforcing the narrow ideals of good speech expected of U.S. citizens as the implicit standards for gaining asylum.