Telling Truths: How the REAL ID Act's Credibility Provisions Affect Women Asylum Seekers

Summary

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When a persecuted woman flees her country, she rarely brings with her evidence of persecution for a future asylum hearing in a far-away land. Because of this unavailability of corroborating evidence, asylum law has historically given great weight to the applicant's testimony. If it is deemed credible, her testimony may be the only evidence necessary to meet her burden of proof. Thus, credibility is essential to a grant of asylum. The REAL ID Act of 2005 adds a new credibility provision to the asylum statute that instructs immigration judges and adjudicators to assess the demeanor and candor of the applicant and the consistency of her statements. This Note will argue that, while useful in some circumstances, these factors may inaccurately assess the credibility of a persecuted woman due to the cultural and psychological barriers that prohibit her from effectively communicating her story. To compound the problem, the REAL ID Act comes at a time when immigration judges are under fire for the poor quality of their work and insensitive interactions with asylum seekers. Additionally, the Board of Immigration Appeals recently shifted its standard of review for immigration judges' decisions from de novo to clearly erroneous. This Note will argue that this combination of factors-unreliable credibility indicia, thoughtless adjudication, and highly deferential appellate review-could lead to mistaken credibility determinations, turning away precisely the women that U.S. asylum law has vowed to protect.

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Telling Truths: How the REAL ID Act's Credibility Provisions Affect Women Asylum Seekers

J.D. Candidate, The University of Iowa College of Law, 2007; B.A., B.S., University of Northern Iowa, 2001. I would like to thank Professor Stephen Legomsky and Professor Barbara Schwartz for reviewing drafts and answering my many questions. I am grateful to the editors and writers of Volumes 91 and 92 of the Iowa Law Review for their work on this piece, particularly Katherine Gross, Kate Mueting, and Britta Schnoor. I would also like to thank my family and Bryan for their constant support and love.

I. Introduction

Lorraine Fiadjoe did not have a normal childhood. At age seven, her father forced her to become a sex slave pursuant to the Trokosi religious practices of the Ewe tribe in Ghana.1 She escaped her father's home several times, but she was continuously forced to return to his sexual and physical abuse.2 In her twenties, she began dating a man from a nearby village and became pregnant.3 When her father found out, he beat her so severely that she miscarried.4 After many attempts to run away, she finally succeeded the day she found her boyfriend lying dead, murdered by her father.5 She turned to relatives and her boyfriend's family for assistance, but no one would help her out of fear of her father.6 She ultimately secured a fake passport and spent all of the little savings she had on a plane ticket to the United States.7

When Lorraine arrived at JFK Airport in New York City, INS officials detained and questioned her.8 Like many victims of rape and sexual abuse,9 she did not tell the male INS officer about her horrific life in Ghana.10 Only after obtaining legal and psychiatric assistance did Lorraine finally tell her story.11 But it was too late; at her asylum hearing, the immigration judge found her inconsistent stories to be suspect.12 Instead of being sensitive to the experiences of a traumatized asylee, he conducted the interview in a way that caused her to experience "memory loss, blocking, dissociating and breakdown."13 With little corroborating evidence, he deemed her incredible-a determination that was fatal to her asylum claim.14 The Board of Immigration Appeals ("BIA") dismissed her appeal, upholding the immigration judge's credibility findings.15 However, at the next level of appeal, the Third Circuit, the adjudicators finally evaluated the massive psychological and cultural barriers that negatively affected her credibility.16 Lorraine was one of the lucky ones. With a competent attorney and psychiatrist, she was able to convince the court to remand the case to the BIA for a new hearing.17 However, under the REAL ID Act of 2005, which directs adjudicators to evaluate demeanor and consistency of statements to determine credibility, women such as Lorraine may not be so lucky.18 Women who have been tortured or traumatized face large psychological barriers, such as Post-Traumatic Stress Disorder, and cultural barriers, such as deeply entrenched concepts of shame, which prohibit them from testifying consistently and with the appropriate demeanor. Thus, under the REAL ID Act, women asylum seekers, particularly victims of rape or sexual assault, are at risk of being erroneously deemed not credible.

When a persecuted woman flees her country, she will rarely consider the advantages of collecting evidence of her persecution.19 Instead of stopping to take pictures and gather documents proving their persecution, women like Lorraine are quickly fleeing their life-threatening situations. For many asylum seekers, this means coming to the United States with no evidence of persecution other than their own personal narratives.20 Because corroborating evidence is generally unavailable, asylum law has historically given great weight to the applicant's testimony.21 If the immigration judge or asylum officer deems it credible, the asylum seeker's testimony alone may be sufficient evidence to meet her burden of proof.22 Therefore, for most asylum seekers, being labeled "credible" is essential to a grant of asylum.23

The REAL ID Act of 2005 adds a new provision to the asylum statute that instructs immigration judges and asylum officers on how they should determine credibility.24 The statute allows adjudicators to base credibility of the applicant on the demeanor and consistency of her statements, including consistency between oral and written statements, the internal consistency of statements, and consistency with State Department or other objective country-condition reports.25 However, as in the case of Lorraine Fiadjoe, these tools may be inaccurate indicia of credibility due to the way in which a woman asylum seeker communicates, particularly a woman who has been tortured or persecuted.26 A thoughtful a...

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