Searching for the Key in the Wrong Place: Why 'Common Sense' Credibility Rules Consistently Harm Refugees

Abstract

This article examines serious flaws in the asylum process, not just in the United States, but in other developed countries as well. Notwithstanding an affirmative obligation under international treaty to not return a refugee to his country of origin, legislatures in the United States, Australia, the United Kingdom, and other receiving nations have, since the terror attacks of 9-11, drafted laws that place an irrationally high burden on the asylum applicant to prove the credibility of his testimony. This primacy of credibility serves as a threshold issue: failing to establish credibility, the claimant has little chance that other evidence will be considered.

Despite a widespread belief in the intuitive ability of the ordinary person to judge a witness’s reliability based on the consistency, completeness, and coherency of testimony, numerous psychological investigations have established that memory is, by its nature, plastic, inconsistent and incomplete. Memories are particularly unreliable for victims of trauma. Furthermore, studies conclusively show that people, regardless of special training, cannot distinguish between lies and the truth at a rate not much higher than pure chance would produce.

While jurisprudence permits a certain degree of error in truth determination in exchange for expeditious resolution of controversies, the irrationally high standard of proof for refugees’ credibility currently results in an unacceptable rate of wrongful denials, condemning those who fled harm to forced repatriation to their persecutors. And, because credibility determinations are considered findings of fact, they are exempt from appellate review, absent “clear error.” After arguing that an asylum seeker should be compared to an alleged crime victim, rather than an alleged criminal, five solutions are suggested to lessen the hardships currently caused by the primacy of irrational credibility determinations.

Keywords: asylum, immigration, Real I.D. Act, credibility, omissions, contradictions