Credibility Determinations Are Not Credible, Part Three

by Jason Dzubow on January 19, 2012

In this series, I have been writing about methods for determining whether an alien is telling the truth.  So far, I have examined inconsistencies, demeanor, and lack of detail, and I have posited that none of these methods is very reliable.  Today, I will examine one method that I have long felt was the least reliable, but as I’ve worked on more cases, I have begun to believe that it actually may work better than other techniques used to determine credibility.  I am speaking about plausibility.

First, what do we mean by plausibility?  When a fact finder determines that an event is not believable, it is implausible.  For example, I worked on a case where the Immigration Judge found my client’s testimony implausible.  The client was an Ethiopian political activist who passed through government security at the airport even though a warrant had been issued for her arrest.  The IJ did not believe that a person wanted by the government could pass through airport security.

Unless your name is Big Daddy, you probably can't smell the mendacity.

The reason I previously felt that plausibility was a poor basis for determining credibility is because it is difficult to know what is plausible.  In the above example, it turns out that many high-level political activists who had been jailed by the government were able to leave the country through the airport.  In my case, we presented this evidence and my client received asylum.

As I’ve thought about it more, I’ve come to believe that my case was decided in the proper way.  The IJ was concerned about a legitimate plausibility issue.  We presented evidence to satisfy that concern.  The case was granted. 

The astronomer Carl Sagan famously said, “Extraordinary claims require extraordinary proof.”  Mr. Sagan’s axiom can be applied in the asylum context.  Where an alien makes a claim that the IJ finds implausible, the alien should be given an opportunity to demonstrate that the claim is, in fact, plausible.  The more implausible the claim, the better evidence the alien will need to demonstrate plausibility.  This seems like a reasonable method for assessing credibility.

If there is a conclusion to this short series on credibility, I suppose it is that no method of determining credibility is all that reliable.  This problem exists in all areas of the law, but it is particularly acute in the asylum context where so much rests on an alien’s unsupported testimony.  The various methods of determining credibility can certainly help suss out the most egregious untruths, but beyond that, I have real doubts about their effectiveness.  In the end, the fact finder must reach a conclusion using the imperfect tools that are available.  Given all that rides on these decisions, it’s not a task I envy them.

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