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

• Author: Katherine E. Melloy
• Position: J.D. Candidate, The University of Iowa College of Law, 2007; B.A., B.S., University of Northern Iowa, 2001
• Pages: 639-676

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.

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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 massivePage 640 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

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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 and skilled immigration judge will view the credibility factors under the REAL ID Act in light of a persecuted woman's experience-the culture that prohibits her from talking about sex, the psychological effects of torture, and the different uses of body language.²⁷ However, immigration judges have gained a reputation for being anything but thoughtful and skilled. Over the past few years, immigration judges have come under fire for sloppy and insensitive adjudication.²⁸ That fact, in addition to appellate courts' increasing deference to immigration judges' credibility findings,²⁹ may make the REAL ID Act a fatal barrier to women asylum seekers.

This Note will argue for cautious use of the REAL ID Act's credibility factors, urging for systemic changes in immigration adjudication in order to ensure accurate credibility findings.³⁰ First, it will summarize the statutoryPage 642 requirements for asylum and, more specifically, how immigration judges determined credibility prior to the REAL ID Act. Part II will discuss the enactment of the REAL ID Act, including the congressional rhetoric leading up to it. Part III will analyze the common barriers that women asylum seekers face to telling their story consistently and with the presumed demeanor of a person that fears persecution. Part III.A will address the psychological effects of trauma and torture, particularly memory problems and the numbed, unemotional demeanor of torture survivors. Part III.B will analyze cultural communication impediments in the asylum hearing. Part IV will look at systemic problems in asylum adjudication that exacerbate the propensity for faulty credibility findings. Part IV.A will discuss problems with port-of-entry interviews that make it difficult for a woman asylee to tell her story consistently and accurately. Part IV.B will show how these psychological and cultural hurdles are often not thoughtfully considered by immigration judges. Part IV.C will discuss how the BIA has become increasingly deferential to immigration judges' credibility determinations as a result of a shift of the standard of review from de novo to clearly erroneous. Ultimately, this Note will argue that this combination of factors-a statute ripe for flawed credibility assumptions, thoughtless adjudication, and extremely deferential appellate review-may lead to erroneous credibility determinations and turn away bona fide asylum seekers.

II Background: The Intersection of Asylum Law and the War on Terror

Asylum law has traditionally been a way for political refugees to seek a safe haven in a foreign country.³¹ In the early years of U.S. asylum law, asylees were predominantly male, largely because of the nature of their political activity.³² Over the past ten to fifteen years, however, asylum adjudicators have expanded the conception of asylum beyond just refugees with political-based claims to encompass gender-based claims, including victims of domestic violence,³³ women who fear female genital cutting,³⁴ andPage 643 victims of rape and sexual assault.³⁵ However, politically charged reforms over the last few years may curb this expansive trend in asylum law.³⁶ The most recent example of this post-September 11 retraction came in May 2005 when Congress passed the REAL ID Act, which limited judicial review and access to courts, and heightened evidentiary standards for asylum seekers.³⁷ In order to understand the context of Congress's passage of the REAL ID Act, this Part will examine the development of U.S. asylum law and policy, asylum procedure, and the events and debate that motivated the passage of the REAL ID Act.

A U.S. Asylum Law

Modern asylum law stemmed from the large resettlement of German refugees at the end of World War II.³⁸ With massive property destruction and hundreds of thousands of German Jewish refugees,³⁹ the United States and other Western nations made ad hoc agreements to admit these refugees.⁴⁰ The agreements were then codified by the United Nations in the 1951 Convention Relating to the Status of Refugees.⁴¹ In 1967, the UnitedPage 644 Nations revised the refugee conventions⁴² and developed the standard for determining refugee status that has now been adopted by 143 countries.⁴³ While the United States signed on to the agreement in 1968, it was not until the Refugee Act of 1980 that U.S. lawmakers officially incorporated the UN refugee conventions into U.S. law.⁴⁴

1. The Statutory Requirements Under U S. Law

Under the Refugee Act of 1980...