The Ghost of Credible Fear Interviews Past

Inconsistency can doom an asylum application.

Asylum applicants must demonstrate that their stories of persecution are reliable, and few things set off judicial “reliability detectors” as much as a shifting narrative.

The problem is exacerbated by the fact that a refugee will typically go through a battery of interviews with many different authorities before her claim is adjudicated.  As the mound of interview transcripts grows, so too do the odds of conflicting testimony.   

Ming Zhang recently learned this the hard way.  Zhang, who entered the U.S. in 2003 and made a Chinese “family planning” claim – premised on protections offered for victims of China’s coercive family planning policies – was denied asylum on the basis of inconsistencies between her testimony before an immigration judge, in her “airport interview,” and in her “credible fear” interview.  Zhang’s appeal of this denial was upheld in an October 2009 decision that established new precedent in the Second Circuit on the issue of the extent to which reviewing courts may consider the record of “credible fear” interviews when evaluating an alien’s reliability. See Zhang v. Holder, No. 07-0327 (2nd Cir. Oct. 30, 2009):

[Zhang’s] asylum application emphasized that she had undergone two forced abortions and had been driven to attempt suicide.  [She] did not, however, discuss any of these events at her airport interview, or at her later credible fear interview.

Zhang, who does not speak English and was interviewed through a Mandarin translator, had told her airport interviewer that she immigrated because the Chinese government was forcing her to “have a birth control device” implanted in her, that she had been detained for refusing to submit to the procedure, and that if she was sent back she “would die.”  She repeated but did not add to those claims a week later, in a “credible fear” interview at an INS facility where she had been detained.

When asked why she did not discuss the forced abortions and suicide attempt at those interviews, Zhang said she was “confused” and did not know what to say.  She further asserted that she had mentioned “suicide” in her airport interview, and that the omission of that statement from the transcript was wrong.  This explanation did not sway the IJ, the BIA, or the federal court.

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Northern Mariana Islands Court Ramps Up

Who wouldn't want asylum here?

The new Immigration Court in the Northern Mariana Islands is up and running.  An article in the Saipan Tribune reports that “The Department of Homeland Security’s Immigration and Customs Enforcement has filed 30 new removal cases, bringing to 51 the total number of cases that have been filed with the Saipan U.S. Immigration Court since the federalization law took effect on Nov. 28.”

From Tuesday until Thursday, Immigration Judge Philip L. DiMarzio heard the 51 cases, mostly Chinese nationals involved in human smuggling cases.  In what appears to be a blatant breach of confidentiality, the paper reported and named a Chinese asylum seeker who appeared before the court.  For more on confidentiality and Immigration Courts, click here.

Long Delays at Chicago Immigration Court

Chicago Public Radio reports that a record case load at the Chicago Immigration Court is causing hardship for asylum seekers:

Chicago’s federal immigration court is backed up with a record 8,696 cases. The average wait for a hearing is more than a year. Some immigrants don’t mind, since the backlog buys them time here. But it’s hard on asylum seekers. And it has consequences on other parts of the justice system.

Attorney Lisa Palumbo of the Legal Assistance Foundation of Metropolitan Chicago says long delays for asylum applicants are the norm.  They have to put off decisions like buying a home and accepting a job out of state.  Palumbo points out that many can’t get work authorization or student financial aid.  Worse, many are separated from family members in their home countries, and sometimes those family members face potential persecution.

Here’s what’s causing the logjam: The government has added more agents and prosecutors to arrest and deport undocumented immigrants. But it hasn’t added enough judges to hear the cases. At the Chicago court, the number of judges since 2006 has actually dropped from eight to five.

The Asylumist reported on this problem in recent post, We Need More Judges.  EOIR has stated that additional immigration judges are on the way.  For asylum seekers stuck in the system, the new judges cannot arrive soon enough.

BIA Appeals in Federal Courts Are a Long Shot

The reversal rate for BIA cases in all federal circuit courts for 2009 averaged 11.12%, according to the EOIR Immigration Law Advisor, vol. 4, no. 2.  The reversal rate has dropped every year for the last four years: 2009 (11.12%), 2008 (12.6%), 2007 (15.3%), and 2006 (17.5%). 

For aliens appealing adverse BIA decisions, the most difficult circuit court for 2009 was the Tenth Circuit, with a reversal rate of 1.8%–down from 18.0% in 2006!  The next most difficult court for immigrants was the Fourth Circuit (3.3%), followed by the Fifth Circuit (4.0%), the Second Circuit (5.5%) and the First Circuit (5.6%).  The courts with the highest reversal rates in 2009 were the Ninth Circuit (17.2%), the Third Circuit (16.4%), and the Seventh Circuit (14.3%).  Reversal rates for the remaining courts are: Sixth Circuit (8.6%), Eighth Circuit (7.7%), and Eleventh Circuit (7.1%).

There may be reason to question the accuracy of EOIR’s numbers:  The report separately lists reversals in federal circuit courts for the month of November 2009.  For the Fourth Circuit, the report states that the court decided 16 BIA appeals in November, and that all 16 were affirmed.  However, in at least one case–Baharon v. Holder, decided on November 24, 2009–the Court reversed the BIA’s decision.  This oversight might raise questions about the accuracy of EOIR’s reporting.  

Assuming that the overall EOIR numbers are accurate, there are different possible explanations for the varying reversal rates.  The most obvious reason is that some courts are more conservative than others on immigration issues.  Another possibility is that the quality of the immigration courts varies from jurisdiction to jurisdiction.  It is certainly true that some courts are more likely to grant asylum than others (for example, according to the TRAC database, New York IJs, on average, denied asylum in 31.2% of asylum cases; in Atlanta, IJs denied 85.7% of asylum cases).  This discrepancy could, in turn, be explained in different ways–the philosophy of the individual judges, the varying degrees of attorney representation in different regions of the country, the country of origin of applicants in the different jurisdictions.  The bottom line is this: In juridictions where the IJs make better (i.e., more legally proper) decisions, reversal rates in the federal courts should be lower. 

Theoretically at least, the BIA should mitigate discrepancies originating with the Immigration Judges.  So all things being equal, we should be able to attribute the varying reversal rates at the circuit level to the circuit courts themselves.  Of course, all things are rarely equal, and the BIA does not do enough to correct aberrant IJ decisions.  I think that the different reversal rates may be attributed both to the circuit courts and the Immigration Judges.  Maybe I am biased (I used to clerk for the Arlington, Virginia Immigration Court, located in the beautiful Fourth Circuit), but I believe the low reversal rate in the Fourth Circuit is partly due to the high quality of judges in Arlington and Baltimore.  Both those courts are relatively small and close to EOIR headquarters, and judicial appointments in both cities are coveted.  Not that I’m saying a 3.3% reversal rate is a good thing.  It’s just that I can’t totally blame the Fourth Circuit for it.

How Confidential Is the Asylum Process?

Asylum in the United States is meant to be a confidential process.  However, it is not uncommon for the BIA and the federal circuit courts to identify asylum seekers by name in their decisions, and to describe the applicants’ claims of persecution.  We lawyers sometimes wonder whether anyone in the home country ever learns about such cases.

In a recent example from the Ninth Circuit, a Cambodian couple was denied asylum before the Immigration Judge and the Board of Immigration Appeals.  They filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit, which was denied. See Kin v. Holder, No. 05-73079 (9th Cir. Feb. 18, 2010).  Someone in Cambodia was paying attention, and the case recently appeared in the English language Phnom Penh Post:

Two Sam Rainsy Party (SRP) members who say they were tortured by authorities after participating in a 1998 political rally have had their bid for political asylum in the United States blocked by an appeal court there. In a legal opinion filed on Thursday, Judge Richard C Tallman of the US Court of Appeals for the Ninth Circuit upheld an earlier ruling by the Board of Immigration Appeals (BIA) rejecting the pair’s asylum requests, saying their asylum claim was riddled with inconsistencies.

The article goes on to identify the couple by name, and to describe their claims of persecution in detail.  The article concludes:

Senior CPP [Cambodian People’s Party – the ruling party of Cambodia] lawmaker Cheam Yeap could not confirm or deny the validity of the allegations raised by Kin Sambath and Prak Bunnary, but stated that peddling falsehood was not uncommon for the opposition. “It is characteristic of the SRP that they raise untrue issues because they want to live in a third country,” he said.

Now that the Ninth Circuit’s decision has exposed the names and stories of the two asylum seekers and a “Senior CPP lawmaker” is aware of their claims, they may have an argument to reopen their case in the U.S.: Even if their initial stories were not credible, the Cambodian government has become aware that they applied for asylum in the United States.  The very fact that they made this application–and accused the Cambodian government of persecuting them–might result in the government punishing them upon their return.  And that may be enough to support a new claim for asylum.

The Fourth Circuit and Asylum

Among lawyers (like me) who practice in the U.S. Court of Appeals for the Fourth Circuit, there has been ongoing speculation about whether the conservative court is moving to the left.  AILA’s Immigration Slip Opinions discusses several positive asylum decisions from the last few months, including my case, Baharon v. Holder, 588 F.3d 228 (4th Cir. 2009).   The one common factor in these cases is Judge Gregory, who seems to favor a more expansive judicial review of asylum cases than many of his colleagues.  The Fourth Circuit has traditionally been considered very conservative when it comes to immigration cases in general, and asylum cases in particular, but that may be changing.  The newest judge, Barbara Milano Keenan, confirmed last week may further tip the balance.  And there are currently four more vacancies on the Court.  We’ll see if the new appointments make the Fourth Circuit friendlier terrain for asylum seekers.