Credibility Assessments and the REAL ID Act's Amendments to Immigration Law

Abstract

Hundreds of thousands, if not millions, of foreign nationals have sought asylum protection in the United States. In 2005, Congress enacted the REAL ID Act, which for the first time codified in the immigration statute the factors immigration judges may consider in an assessment of credibility. The law has been almost universally attacked as everything from unnecessary to indicative of xenophobia. Because the REAL ID Act only applies to asylum applications filed after May 11, 2005, decisions applying the new credibility standards are only now beginning to emerge in the federal appellate courts. At the same time, a growing percentage of the cases adjudicated in the federal appellate courts concern immigration matters - thirty-five to forty percent in the Second and Ninth Circuits alone.

This article seeks to fill a void in the literature by challenging the conventional wisdom expressed by critics of the law (as well as critics of credibility assessments at the agency level generally). I will separate the legal analysis from the emotionally fraught policy considerations inherent in any discussion of immigration issues, recognizing the latter exists but focusing on the former. I argue that a law that enables immigration judges to consider any factor relevant to an assessment of veracity is necessary in the face of exclusionary rules previously applied categorically by many reviewing courts of appeals. Such exclusionary rules, I contend, are incompatible with the basic principles that should guide an assessment of credibility. To this end, this article will argue for a return to the fundamental - yet often ignored or overlooked - link between inference and an assessment of credibility, and the basic tenants that should guide judicial review of administrative findings of fact. A policy debate on the state of the current immigration system is certainly in order. That debate, however, should not impact the legal principles guiding review of credibility assessments.

Keywords: credibility, credible, asylum, immigration, inconsistency, inconsistencies, demeanor, immigrant, alien

JEL Classification: K, K00, K3, K39, K33, K4, K40, K41, K49, K2, K23