Refugee credibility assessment and the "religious imposter" problem: a case study of Eritrean Pentecostal claims in Egypt.

• Author: Kagan, Michael

ABSTRACT

Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in RSD interviews indicates that RSD decision makers operated from several implicit assumptions about how to conduct religious-credibility assessment. Attempts to test the sincerity of religious faith via knowledge quizzes and inquiries into subjective beliefs have questionable logical justifications and are fraught with significant risks. By contrast, the most logically defensible approaches are based on the "eye of the persecutor" test, which focuses on observable triggers of persecution that put individuals at risk.

TABLE OF CONTENTS I. INTRODUCTION II. METHODOLOGY A. A Gap in Standards B. Defining the Question C. Analyzing Questions in Refugee Status Determination (RSD) D. Source of Interview Transcripts III. BACKGROUND ON ERITREAN PENTECOSTAL ASYLUM SEEKERS IN EGYPT A. Pentecostalism in East Africa B. Religious Repression in Eritrea C. Eritrean Refugee Claims Under International Refugee Law IV. QUESTIONS AND ASSUMPTIONS USED IN RELIGIOUS REFUGEE CASES IN CAIRO A. The Sincerity Test B. Neutral Questions on Religious Beliefs and Practices C. Religious Knowledge Quiz D. Theological Clarification or Dispute E. Weaknesses of the Sincerity Test F. The Eyes of the Persecutor Test G. Narrative Focus H. Open Versus Closed Questions V. TOWARD A MORE SYSTEMATIC APPROACH I. INTRODUCTION

Refugee status determination (RSD) is a special type of adjudication where officials from secular governments and the United Nations conduct formal hearings into religious faith. The interviews are lengthy and often intense, sometimes forcing people to recite Bible citations, to tell how and why they started going to one church instead of another, or to explain for the record why they pray in a particular way. These awkward scenes are not anticipated by any doctrinal dispute in refugee law. While substantial controversy has arisen about the international definition of a refugee, (1) few governments would contest that a person whose life or freedom is in danger because of her religious beliefs is a refugee under international law. Given the 1951 Refugee Convention's roots in the aftermath of the Nazi Holocaust, one might consider religious persecution cases to be prototypical refugee claims, especially when the persecution emanates from a central government.

Yet, when asylum seekers from Iran, China, Eritrea, and elsewhere file refugee claims based on their adherence to a banned religious movement or fear of punishment for conversion, they encounter significant practical challenges in winning refugee protection. When asylum adjudicators set out to decide whether to accept such refugee claims, they can quickly find themselves administering a process akin to a religious trial. In one case, for example, an American appellate court admonished a government attorney for "administer[ing] a sort of mini-catechism." (2) The source of this difficulty is not the substantive legal criteria for refugee status, but rather evidentiary difficulties in convincing adjudicators that asylum seekers are indeed members of a targeted religious group. Other writers call this the problem of the "religious imposter." (3)

This Article examines how adjudicators can address these cases systematically and objectively, ensuring as well as possible that refugees who are genuinely at risk will find protection without endangering the integrity of the asylum system or infringing on the religious liberty of asylum seekers. Part II explains the gap in standards that this Article attempts to address, its analytical approach, and the methodology of the case study that will be presented. Part III provides background on the situation of Pentecostal Eritrean asylum seekers in Egypt and the reasons why they present an ideal case study for examining the religious imposter problem. Part IV examines various approaches to religious-credibility assessment that have been proposed in literature and jurisprudence and attempts to match these approaches to specific types of questions used in RSD interviews in Egypt. In the course of this analysis, this Article reaches conclusions about the best approaches to use in religious-based RSDs, and it concludes in Part V by suggesting how a more systematic framework for assessment of credibility in religious cases might be developed.

2. METHODOLOGY

   1. A Gap in Standards

      The religious imposter problem develops when oppression of a particular religious group in a particular country rises to a sufficient level of severity that any person of that nationality who subscribes to the targeted faith is likely to have a well-founded fear of being persecuted, thereby meeting the substantive requirements for refugee status. (4) However, it is difficult, as an evidentiary matter, to determine whether a claimant is actually a member of the persecuted religious group, and states naturally do not want to open their asylum systems to any person who simply declares herself to be a member of an oppressed group. (5) As the New Zealand Refugee Status Appeals Authority wrote, "[i]n the absence of any truly independent evidence, it would be easy to manufacture a claim based on personal religious belief." (6)

      Because evidence of persecution in foreign lands is often lacking, refugee cases are commonly determined by assessment of the credibility of an applicant's testimony. (7) If an applicant's testimony is credible, it will be entitled to the "benefit of the doubt," but if the testimony is not credible, the refugee claim will usually fail. (8) Credibility assessment in refugee cases is nearly always a challenge because it requires judging the veracity of a vulnerable person from another country (9) in circumstances in which fraudulent applicants have an incentive to lie (10) and genuine applicants may appear unconvincing. (11) In easier cases, an applicant's testimony can be judged against independent evidence, such as documents (and assessment of their validity), reports about the applicant's country of origin, or the testimony of other witnesses. (12) This process is often called external credibility assessment. (13) However, the most challenging cases are those that rely extensively on affording asylum seekers the benefit of the doubt because of the lack of corroborating or contradictory evidence. (14) In these cases, adjudicators assess credibility mainly by analyzing the applicant's testimony in reference only to itself, looking for consistency, detail, vagueness, and contradictions, among other factors. (15) This process is sometimes referred to as internal credibility assessment. (16)

      The process of credibility assessment in RSD encompasses many of the fundamental tensions and conflicts at the core of the refugee system. In theory, the definition of "refugee" should be applied liberally in light of its purpose, but states are not obligated to pursue refugee protection at all costs. (17) Mariham Iskander Wahba, one of the author's students at the American University in Cairo, interviewed refugee service providers in Egypt. (18) Wahba observed that refugee fraud is a pervasive concern in official interactions with refugees in Cairo, and this fear extends beyond a concern that a refugee will lie during status determination. (19) Focusing especially on gender-related concerns, Wahba notes that obtaining monetary, medical, and other services requires refugees to have been victimized, which creates official suspicion that refugees will fake victimhood. (20) For instance, a refugee might lie about being raped in Egypt to obtain services, even after she has passed the test of RSD. (21)

      A previous study of the UN High Commissioner for Refugees's (UNHCR) RSD decisions in Egypt found that negative credibility assessment accounted for 77 percent of rejections, and studies of other jurisdictions have found similar patterns. (22) Despite its importance, credibility assessment remains a relatively undeveloped aspect of international refugee law for several reasons. (23) First, in many legal systems, credibility assessment is treated as a question of fact rather than a question of law, and as a result, credibility determinations are not subject to rigorous appellate review. (24) Therefore, standards for credibility assessment do not evolve gradually through jurisprudence to the same extent as other central questions in refugee law. (25) Second, as James A. Sweeney observed recently, legal culture tends to encourage critical thought about evidence and fact-finding less than it encourages the refinement of abstract normative rules. (26) Lawyers are inclined to seek "truth," while contemporary social science has been built, to a great extent, on the understanding that empirical certainty is often unrealistic. (27) Third, for a considerable amount of time, it was normal for credibility assessment to be considered a subjective matter of impression for individual adjudicators, and determinations were made by intuition rather than explicit analysis. (28) Fourth, the development of comprehensive guidelines on credibility assessment is challenging because the specifics of each case are unique, and assessing the believability of refugee testimony is not a simple matter of analyzing answers given by a witness. In real life, credibility assessment involves many more factors, including not just the answers but also...