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  • Article: “Credibility” Training Module For Asylum Officers Released After A Freedom Of Information Request By David L. Cleveland

    “Credibility” Training Module For Asylum Officers Released After A Freedom Of Information Request

    by


    A 90-page Asylum Officer Training Module on “Credibility,” dated June 20, 2016, was recently released after a FOIA request by Catholic Charities of Washington DC. A copy is available at the Louise Trauma Center website: www.louisetrauma.com.

    “No witness is perfect,” is the essence of the first 13 pages of this training module. Minor discrepancies can be ignored. If the testimony was largely consistent “throughout the examination and cross-examination, consistent with his written declaration, and contained no embellishments,” find the applicant credible. Page 13.

    The “normal limits of human understanding and memory may make some inconsistencies or lack of recall present in any witness’s case.” Page 59.

    A retelling of a story “will inevitably have some flaws.” Page 14. If you think you see a flaw, “inform the applicant of your concern [and ask her] to explain.” Page 15.

    A person who was actually present at an event will know “sensory detail.” Page 16.

    A “lack of detail” is an important factor to consider. Page 60, [emphasis in original.]

    “There is no presumption of credibility.” Page 56.

    To be sure, the INA states that an asylum officer may base a credibility determination on an inconsistency that does NOT go to the heart of the claim; however, the officer must also consider the “totality of circumstances.” Page 61. James Feroli, Esq., now a lawyer at Catholic Charities of Washington DC, opined that it “may well be impossible” for an officer to find an applicant not credible, based on an irrelevant inconsistency, under this standard. Page 61, note 97.

    A passport may contain stamps indicating where a person was at a certain time: i.e. not in the country at a time applicant says she was in jail. Page 19.

    A visa application may contain interesting facts. Officers have access to the Department of State’s Consular Consolidated Database. Page 79.

    Some examples of so-called inconsistencies, that, standing alone, do not lead to a negative credibility finding:

    -applicant failed to list on his written application two incidents of harm to his relatives;

    -written application says he was shot at, but orally, applicant says he was never shot at. Applicant says his agent wrote down that claim, and applicant signed the application without reading it;

    -written application says he was accosted by “unknown armed men;” orally, he said he was accosted by “death squads.” [Pages 20-21]

    “An applicant may be unaware of the clandestine activities of part of his organization due to a high level of secrecy…or the applicant may be from a rural area to which news does not easily reach and the interviewee’s viewpoint may be extremely localized.” Page 22.

    To test credibility, ask questions NOT in chronological order. Page 35.

    Look at the dates of documents. Page 36. [an applicant may say, “I joined the party in 2013,” and furnish a document that reads: “Joined in 2014.”]

    “Also, in some countries, it is easier for an individual to pay to get fraudulent civil documents that it is to get genuine documents.” Page 37.

    “The presentation of fraudulent documents that were created to escape persecution may actually tend to support an individual’s application.” Page 48.

    SPLIT CREDIBILITY

    Mr. Paul was deemed not credible concerning past persecution. The 6 th Circuit stated that perhaps the man could be found credible concerning future persecution, and thus deserve asylum. Page 39.

    Mr. Lin-Jian was found not credible concerning future persecution; the 4 th Circuit held if he was credible concerning past persecution, he could still get asylum. Page 30.

    TRANSLATIONS

    Paran in Haitian Creole can mean both “parent” and “relative.” Page 42.

    Embarazada in Spanish means “pregnant.” Her interpreter stated that she was “embarrassed.” Page 43.

    DEMEANOR

    “The demeanor of traumatized applicants can vary. They may appear numb or show emotional passivity…[or] give matter-of-fact recitations of serious instances of mistreatment. Trauma many also cause memory loss or distortion…” Page 68

    “Some circuit courts have upheld adverse credibility findings that have been based, in part, on the applicant’s return to the country of persecution.” Page 88.

    Comments by the author

    1. Dates on documents: it is my experience that applicants often do not know their own

    history and also that the family members are confused as well. If a document has a date on it, show it directly and immediately to the applicant, and ask, “Is this correct?” If it is, you must memorize it, so that when you read a letter from a family member, you will know if there is an inconsistency.

    2. Split credibility: at pages 30 and 39 of the training module are examples of cases where

    the applicant was deemed not credible in one area; but nonetheless was deemed perhaps eligible for asylum. Yet, it is also true that an adjudicator can deny a case for minor inconsistencies. How can this inconsistency be reconciled? This is a problem.

    3. Translations: translators make mistakes all over the place. Even translators with advanced degrees. Some examples:

    Wang v. Lynch, 804 F.3d 855, note 3 (7th Cir. 2015) (translator said that wife had a “vasectomy;” then he said, “tubal ligation” at page 857, when he meant that wife had an implant in her upper arm)

    Marouf v. Lynch, 811 F.3d 174, 184 (6th Cir. 2016) (arm = hand in Palestinian Arabic; the same word is used for both)

    Ilungu v. Holder, 7 77 F.3d 199, 207 (4th Cir. 2015) (French words for “jailhouse” “cell” “room” are confusing). Page 208: applicant said he was sexually assaulted in jail; translator did not translate that, but applicant’s lawyer heard the mistake, and asked the translator to correct it. He did.

    Page 209: Applicant was asked, “Where is your largest scar?” He pointed to his chest, and the translator said “On my right arm and right knee. “

    Cheng v. Holder, 555 Fed. Appx. 646, note 1 (9th Cir. 2014] (applicant said “Mexico” but translator said, ‘Moscow.” Lawyer complained; the translator said he thought applicant had said “Moscow.”

    Reunion is a French word that can mean things other than “reunion.”

    Reloj is a Spanish word that can mean “clock on the wall” and also “wristwatch.”

    4. Testifying with a flat affect, without emotion or tears. The Training Module says this

    happens with credible witnesses. My experience is that many adjudicators do not believe this.

    Reprinted with permission.


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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