Amicus Curiae Brief — Merrick B. Garland, Attorney General, Petitioner v. Ming Dai
Supreme Court briefJan 11, 2021
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Nos. 19-1155 and 19-1156
IN THE
Supreme Court of the United States
_________
JEFFREY A. ROSEN, ACTING ATTORNEY GENERAL,
Petitioner,
v.
MING DAI,
Respondent.
________
JEFFREY A. ROSEN, ACTING ATTORNEY GENERAL,
Petitioner,
v.
CESAR ALCARAZ-ENRIQUEZ,
Respondent.
________
On Writs of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
________
BRIEF OF REFUGEE ADVOCACY
ORGANIZATIONS AS AMICI CURIAE IN
SUPPORT OF RESPONDENTS
________
LEIGH J. JAHNIG
JENNER & BLOCK LLP
353 N. Clark Street
Chicago, IL 60654
(312) 222-9350
ZACHARY C. SCHAUF
Counsel of Record
JENNER & BLOCK LLP
1099 New York Avenue NW
Suite 900
Washington, DC 20001
(202) 639-6000
ZSchauf@jenner.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................... iii
INTEREST OF THE AMICI CURIAE ....................... 1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT .............................................................. 2
ARGUMENT ....................................................................... 5
I.
Credibility Appraisals Are Central To Asylum
Proceedings .................................................................. 5
II. Credibility Determinations In Asylum Cases
Are Intertwined With The Effects Of Trauma ...... 7
A.
Trauma Can Manifest As Inconsistent Or
Incomplete Memories ............................................. 9
B.
Trauma Can Affect Demeanor ............................ 15
C.
The Asylum Process Itself Sharpens
Trauma’s Effects ................................................... 17
III. Immigration Judges Are Far Better Suited
Than Appellate Judges To Assess Credibility
Combined With The Effects Of Trauma ................ 20
A.
Congress Properly Vested Immigration
Judges, Not Appellate Courts, With The
Responsibility
For
Making
Difficult
Credibility Determinations .................................. 21
B.
ii
Immigration Judges Have Rightfully Given
Asylum To Applicants Whose Testimony
May Not Comport With Traditional Indicia
Of Credibility Because Of Trauma ..................... 24
IV. Precluding Federal Appellate Courts From
Making Their Own Adverse Credibility
Findings Will Not Yield Adverse Effects ............. 27
CONCLUSION ................................................................. 29
iii
TABLE OF AUTHORITIES
CASES
Balasubramanrim v. INS, 143 F.3d 157 (3d
Cir. 1998) .................................................................. 19
Fiadjoe v. Attorney General, 411 F.3d 135 (3d
Cir. 2005) .................................................................. 15
Ilunga v. Holder, 777 F.3d 199 (4th Cir. 2015) ......... 16
International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers &
Helpers, AFL-CIO v. Hardeman, 401 U.S.
233 (1971) ................................................................. 23
Longwe v. Keisler, 251 F. App’x 718 (2d Cir.
2007) .......................................................................... 11
Marouf v. Lynch, 811 F.3d 174 (6th Cir. 2016) ......... 11
Morgan v. Mukasey, 529 F.3d 1202 (9th Cir.
2008) .......................................................................... 11
Senathirajah v. INS, 157 F.3d 210 (3d Cir.
1998) .......................................................................... 19
Singh v. Gonzales, 403 F.3d 1081 (9th Cir.
2005) .......................................................................... 10
STATUTES
8 U.S.C. § 1101(a)(42)A ................................................. 5
8 U.S.C. § 1158(b)(1)(A) ................................................ 5
8 U.S.C. § 1158(b)(1)(B)(ii) ..................................... 6, 28
8 U.S.C. § 1158(b)(1)(B)(iii) ............................ 21, 22, 24
8 U.S.C. § 1158(b)(2)(A)(i) ............................................ 6
iv
8 U.S.C. § 1158(b)(2)(A)(ii) ........................................... 6
8 U.S.C. § 1229a(c)(4) .................................................. 13
8 U.S.C. § 1229a(c)(4)(B) ............................................... 6
8 U.S.C. § 1229a(c)(4)(C) ................................. 21, 22, 24
8 U.S.C. § 1229b(b)(2) .................................................. 13
8 U.S.C. § 1231(b)(3)(B) .............................................. 13
LEGISLATIVE M ATERIALS
H.R. Rep. No. 109-72 (2005) (Conf. Rep.).................... 6
Improving Efficiency and Ensuring Justice in
the Immigration Court System: Hearing
Before the S. Comm. on the Judiciary,
112th Cong. (2011) (Statement of Juan P.
Osuna, Director, Executive Office for
Immigration Review), https://www.justice.
gov/sites/default/files/eoir/legacy/2011/05/
18/EOIRtestimony05182011.pdf........................... 22
OTHER A UTHORITIES
8 C.F.R. § 1003.1(d)(3)(i) .............................................. 23
J. Douglas Bremner, Traumatic Stress: Effects
on the Brain, 8 Dialogues Clinical
Neuroscience 445 (2006)......................................... 10
Catrina Brown, Women’s Narratives of
Trauma:
(Re)storying
Uncertainty,
Minimization,
and
Self-Blame,
3
Narrative Works 1 (2013) ...................................... 17
v
Heather J. Clawson et al., U.S. Dep’t of Health
& Hum. Servs., Treating the Hidden
Wounds: Trauma Treatment and Mental
Health Recovery for Victims of Human
Trafficking (2008), https://aspe.hhs.gov/sys
tem/files/pdf/75356/ib.pdf..........................8-9, 18, 20
Melanie A. Conroy, Real Bias: How Real ID’s
Credibility
and
Corroboration
Requirements Impair Sexual Minority
Asylum Applicants, 24 Berkeley J. Gender
L. & Just. 1 (2009) ........................... 11, 14, 16, 18, 19
Deborah Davis & William C. Follette, Foibles
of Witness Memory for Traumatic/High
Profile Events, 66 J. Air L. & Com. 1421
(2001) ........................................ 7, 9, 10, 12, 13, 14, 20
Deborah Epstein & Lisa A. Goodman,
Discounting Women: Doubting Domestic
Violence Survivors’ Credibility and
Dismissing Their Experiences, 167 U. Pa.
L. Rev. 399 (2019) ....................................... 11. 12, 17
David S. Gangsei & Ana C. Deutsch,
Psychological Evaluation of Asylum
Seekers as a Therapeutic Process, 17
Torture 79 (2007) ............................ 11, 13, 14, 17, 18
Jane Herlihy et al., Just Tell Us What
Happened to You: Autobiographical
Memory and Seeking Asylum, 26 Applied
Cognitive Psych. 661 (2012) .................................... 9
vi
Jim Hopper et al., Important Things to Get
Right About the “Neurobiology of Trauma”
Part 3: Memory Processes, End Violence
Against Women Int’l (Sept. 2020) ........................ 18
Michael Kagan, Is Truth in the Eye of the
Beholder?
Objective
Credibility
Assessment
in
Refugee
Status
Determination, 17 Geo. Immigr. L.J. 367
(2003) ................................ 7, 12, 13, 14, 15, 16, 17, 18
Stuart L. Lustig, Symptoms of Trauma
Among Political Asylum Applicants:
Don’t Be Fooled, 31 Hastings Int’l & Comp.
L. Rev. 725 (2008) ............................................... 7, 16
Shawn C. Marsh et al., Preparing for a
Trauma Consultation in Your Juvenile
and Family Court, Nat’l Council Juv. &
Fam. Ct. Judges (Apr. 3, 2015) ............................. 18
Amina Memon, Credibility of Asylum Claims:
Consistency
and
Accuracy
of
Autobiographical
Memory
Reports
Following Trauma, 26 Applied Cognitive
Psych. 677 (2012) ....................................................... 9
Deborah A. Morgan, Not Gay Enough for the
Government:
Racial
and
Sexual
Stereotypes in Sexual Orientation Asylum
Cases, 15 Law & Sexuality 135 (2006) ................. 19
vii
Alana Mosley, Re-Victimization and the
Asylum Process: Jimenez Ferreira v.
Lynch: Re-Assessing the Weight Placed on
Credible Fear Interviews in Determining
Credibility, 36 Law & Ineq. 315
(2018) ............................................................ 12, 14, 18
Stephen Paskey, Telling Refugee Stories:
Trauma, Credibility, and the Adversarial
Adjudication of Claims for Asylum, 56
Santa Clara L. Rev. 457 (2016) ........... 12, 15, 16, 18
Linda Piwowarczyk, Seeking Asylum: A
Mental Health Perspective, 16 Geo.
Immigr. L.J. 155 (2001) .................................... 16, 18
Hannah Rogers et al., The Importance of
Looking Credible: The Impact of the
Behavioural Sequelae of Post-Traumatic
Stress Disorder on the Credibility of
Asylum Seekers, 21 Psych., Crime & L. 139
(2015) .................................................................. 12, 17
Sexual
Assault
Incident
Reports:
Investigative Strategies, Int’l Ass’n Chiefs
of Police (2018), https://www.theiacp.
org/resources/document/sexual-assault-in
cident-reports-investigative-strategies ........ 10, 20
Sup. Ct. R. 37.1 ................................................................ 2
viii
The Importance of Understanding TraumaInformed Care and Self-Care for Victim
Service Providers, Office on Violence
Against Women, U.S. Dep’t of Justice (July
30, 2014), https://www.justice.gov/archives/
ovw/blog/importance-understanding-trau
ma-informed-care-and-self-care-victim-ser
vice-providers.........................................................7-8
Thinking About Trauma in the Context of
Domestic
Violence:
An
Integrated
Framework, Nat’l Council Juv. & Fam. Ct.
Judges (2014) ....................................................... 9, 18
U.S. Dep’t of Health & Hum. Servs., Substance
Abuse & Mental Health Servs. Admin., A
Treatment Improvement Protocol (TIP)
Series No. 57, Trauma-Informed Care in
Behavioral Health Services (2014), https://
store.samhsa.gov/sites/default/
files/d7/priv/sma14-4816.pdf ............ 8, 11, 15, 16, 20
Angela E. Waldrop & Patricia A. Resick,
Coping Among Adult Female Victims of
Domestic Violence, 19 J. Fam. Violence 291
(2004) ........................................................................ 16
INTEREST OF THE AMICI CURIAE
1
Amici are ten organizations who advocate for greater
asylum seeker protections and increased protections for
immigrant victims of domestic and sexual violence,
provide clinical rehabilitation services to asylumseeking torture survivors, and represent indigent
asylum claimants in various proceedings. Amici are
well-positioned to understand and describe how asylum
seekers have experienced trauma, and how that trauma
affects the perception of their testimony.
The organizations that join this brief are (in
alphabetical order):
1. Casa Cornelia Law Center
2. Catholic Legal Immigration Network, Inc.
3. Center for Gender and Refugee Studies
4. The Center for Victims of Torture
5. Family Violence Appellate Project
6. Harvard Immigration and Refugee Clinical
Program
7. Immigrant Law Center of Minnesota
1
In accordance with Supreme Court Rule 37.6, amici curiae state
that no counsel for a party authored this brief, in whole or in part,
and no counsel or party made a monetary contribution to fund the
preparation or submission of this brief. No person other than amici
curiae, their members, and their counsel made any monetary
contribution to its preparation and submission. Pursuant to
Supreme Court Rule 37.3(a), counsel of record for all parties
received notice of amici curiae’s intent to file and all parties have
consented to the filing of this brief.
2
8. Inviolate Initiative/Center for Transformative
Action
9. National Immigrant Women’s Advocacy Project
(NIWAP, Inc.)
10. Tahirih Justice Center
Given these organizations’ expertise in matters of
asylum proceedings and the traumas facing asylum
seekers, amici curiae submit that their views will be of
“considerable help” to the Court. Sup. Ct. R. 37.1.
INTRODUCTION AND SUMMARY OF THE
ARGUMENT
The Ninth Circuit correctly held that, when both the
immigration judge and the Board of Immigration
Appeals (“BIA”) decline to find that an asylum applicant
is non-credible, appellate courts cannot—for the first
time on appeal—make an adverse credibility finding
themselves. Appellate courts must accept that
testimony as credible. As Respondents explain, this
holding accords with both the asylum statute and
bedrock principles of administrative law. Amici write
here to underscore why it is so important that appellate
courts refrain from stepping into the shoes of an
immigration judge and make a credibility determination
in the first instance.
In asylum cases, credibility determinations are both
essential and fraught. On the one side, asylum seekers
are often fleeing the specter of persecution or torture,
including horrors such as domestic violence, sexual
abuse, and human trafficking. In U.S. immigration
courts half a world away, non-testimonial evidence may
be hard to come by—so the most important evidence will
3
often be the asylum seekers’ own words about what they
experienced.
On the other side, however, science teaches that
traumatic experiences—which are often what trigger
asylum applications in the first place—can have longlasting effects on how survivors recount their
experiences, as asylum seekers must do in asylum
interviews and hearings. The survivor’s demeanor may
be detached, nervous, or hesitant. The survivor may
have gaps in memory or may be too ashamed, or afraid,
to provide a detailed account. Or the survivor’s narrative
may shift over time, as the survivor comes to terms with
horrific experiences. An appellate judge reviewing a
cold transcript, untrained in trauma, can mistake these
effects for red flags that the survivor is not credible. But
in fact, far from undermining credibility, these effects
are consistent with suffering the kind of persecution that
asylum exists to protect against.
Immigration judges are far better placed than
appellate judges to evaluate an asylum seeker’s
testimony and place the effects of trauma into the
context of the overall record. Not only do immigration
judges observe an asylum seeker first hand, but during
their time on the bench, they often acquire significant
experience with asylum cases and the trauma that such
cases often implicate. Specialized training also exists to
help immigration judges understand how to account for
trauma in assessing witnesses. When that training is
properly administered and deployed, immigration
judges can learn to recognize the difference between lay
stereotypes about credibility and what credibility
actually looks like when a trauma survivor testifies in an
4
asylum case (or indeed, any matter adjudicated by an
immigration judge).
Appellate courts lack these critical tools. They have
not seen the applicants, nor can they assess the tenor of
the applicants’ testimony in the context of the whole
record. And appellate courts do not receive any training
as scaffolding against mistaking trauma’s artifacts for
lack of credibility. If an appellate court attempts to
assess an applicant’s credibility when the immigration
judge has not explicitly done so on the record, the court
may be faced with a case in which the applicant lacks
traditional indicia of credible testimony—for example,
because the applicant testified inconsistently about
details like dates or the number of attackers at a specific
event. And on a cold record, the appellate court will be
unable to reliably weigh whether such inconsistencies
indicate non-credible testimony, or whether these
inconsistencies are foreseeable side effects of trauma.
For these reasons, Congress allocated to appellate
courts the responsibility to review adverse credibility
determinations, but it placed the role of making those
determinations in the first instance with immigration
judges, who can draw on both their experience with
asylum cases—cases often accompanied by trauma—and
their ability to directly hear the testimony. That is not
to say that immigration judges always get it right.
Appellate
courts
review
adverse
credibility
determinations under established appellate standards
and sometimes properly reverse adverse credibility
determinations that fail to pass muster under those
standards. But just as it is important that appellate
judges faithfully carry out their duty to review
5
credibility determinations, it is critical that appellate
judges refrain from stepping into immigration judges’
shoes by making initial credibility determinations on a
cold record.
Amici thus respectfully submit that the correct
approach is the one the Ninth Circuit adopted: When
neither the immigration judge nor the BIA has made a
non-credibility finding, reviewing courts should not do
so. Instead, they should treat the applicant’s testimony
as credible. That does not mean the applicant will win—
because even credible testimony may be insufficient to
carry the applicant’s burden to show error in the denial
of asylum. But it does mean that appellate judges must
stick to their assigned role and decline to make their own
credibility judgments when Congress vested the
responsibility for doing so elsewhere.
ARGUMENT
I.
Credibility Appraisals Are Central To Asylum
Proceedings.
The Immigration and Nationality Act (“INA”) makes
asylum available to any “refugee”—that is, “any person”
who is “unable or unwilling to avail himself or herself of
the protection of, [his or her native] country because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); see id. § 1158(b)(1)(A). Immigration
officials assess whether an applicant meets those
requirements based in part on whether the testimony
the applicant offers is credible.
6
In some cases, evidence of an applicant’s experiences,
other than his or her own testimony, may be unavailable.
When that is so, an applicant’s fate may depend
substantially or entirely on whether the immigration
judge finds the applicant’s testimony to be credible. Such
cases are not rare: Many survivors of violence—
including torture, domestic violence, sexual assault,
stalking, child abuse, and human trafficking—flee their
homes under circumstances that make it impossible to
gather documents and other corroborating evidence. In
some cases, such corroborating evidence may never
have existed at all (for example, persecutors may have
carried out their abuse in isolation, away from potential
witnesses).
In the REAL ID Act, Congress confirmed that
applicants’ credible testimony, standing alone, can carry
their burden to establish asylum eligibility: “The
testimony of the applicant may be sufficient to sustain
the applicant’s burden without corroboration,” provided
that “the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the
applicant is a refugee.” Id. § 1158(b)(1)(B)(ii). Congress
enacted this rule to ensure that applicants would not be
condemned to rejection simply because they lack access
to corroborating evidence in the hands of their
persecutors or people controlled by their persecutors.
See H.R. Rep. No. 109-72, at 165 (2005) (Conf. Rep.).
This rule also applies to establishing threshold eligibility
for asylum and withholding of removal, and to weighing
bars on eligibility for this relief. See 8 U.S.C. §
1229a(c)(4)(B) (withholding); id. § 1158(b)(2)(A)(i)-(ii)
(“particularly serious crime” exception).
7
In every case—criminal or civil, immigration or
other—credibility judgments are difficult. Indeed, over
time science has shown that certain behaviors and
demeanor once thought to be reliable indicators of
2
credibility are far less so, or not at all. What is more,
some of the same “cues” previously understood as
demonstrating a lack of candor—and that can result in a
written record that on its face may appear contrived—
are in fact scientifically established hallmarks of trauma.
Appellate judges reviewing a cold record that is silent
on the issue of credibility may have particular difficulty
recognizing the difference and making the hard—
sometimes dispositive—credibility determinations.
II.
Credibility Determinations In Asylum Cases
Are Intertwined With The Effects Of Trauma.
As difficult as credibility judgments are in general,
they are even more fraught in asylum cases. Many
applicants have suffered traumas—sexual assault,
domestic violence, rape, torture, colonization, war, or
genocide. See Stuart L. Lustig, Symptoms of Trauma
Among Political Asylum Applicants: Don’t Be Fooled,
31 Hastings Int’l & Comp. L. Rev. 725, 726, 728 (2008);
The Importance of Understanding Trauma-Informed
Care and Self-Care for Victim Service Providers, Office
2
See Michael Kagan, Is Truth in the Eye of the Beholder? Objective
Credibility Assessment in Refugee Status Determination, 17 Geo.
Immigr. L.J. 367, 388 (2003) (“[H]uman beings are generally not
capable of repeatedly reporting events with perfect consistency.”);
see also Deborah Davis & William C. Follette, Foibles of Witness
Memory for Traumatic/High Profile Events, 66 J. Air L. & Com.
1421, 1432-34 (2001) (noting that a witness’s confidence does not
correlate with the correctness of testimony).
8
on Violence Against Women, U.S. Dep’t of Justice (July
30, 2014), https://www.justice.gov/archives/ovw/blog/
importance-understanding-trauma-informed-care-andself-care-victim-service-providers. As a result of these
traumas, testimony in asylum cases may be credible—
and indeed true—but may nevertheless depart from lay
stereotypes about what credible testimony looks like.
That is because trauma affects both what an applicant
can remember or say, and how the applicant says it.
This section elaborates on those effects in three parts.
Section II.A details how trauma affects memory,
yielding recollections that are incomplete, inconsistent,
or change over time. Section II.B discusses how trauma
affects demeanor and presentation, explaining that
when survivors must describe their experiences, they
may appear hesitant, disjointed, or monotonous—as
their brains relive (or strain against reliving) those
experiences. Section II.C shows how the asylum process
itself exacerbates these effects. The upshot, simply put,
is that the very experiences that prompt an asylum
seeker to flee his or her home—including torture, sexual
violence, and persecution—leave scars that do not easily
comport with lay conceptions of credibility. And sorting
out these effects is even harder because they are not
3
uniform. One survivor may recount an experience of
3
U.S. Dep’t of Health & Hum. Servs., Substance Abuse & Mental
Health Servs. Admin., A Treatment Improvement Protocol (TIP)
Series No. 57, Trauma-Informed Care in Behavioral Health
Services 61 (2014), https://store.samhsa.gov/sites/default/files/d7/
priv/sma14-4816.pdf (“Trauma-Informed Care”) (noting that there
are a “variety” of reactions to trauma); Heather J. Clawson et al.,
U.S. Dep’t of Health & Hum. Servs., Treating the Hidden Wounds:
9
torture with numbness and detachment, while another
might recount a similar experience by reliving it,
overwhelmed with sensory and emotional memories.
Cultural differences, too, can affect how asylum seekers
4
react to trauma. Assessing credibility in asylum cases
thus requires the utmost care.
A. Trauma Can Manifest As Inconsistent Or
Incomplete Memories.
Trauma affects survivors’ memories in myriad ways,
which implicate traditional indicia of both candor and
consistency. Amici describe six such effects below.
First, people who have suffered trauma may have
difficulty recalling specific details of their experiences.
Forming memories during times of great stress—such
as during a traumatic event—can “inhibit processing of
and memory for peripheral details.” Davis & Follette,
Trauma Treatment and Mental Health Recovery for Victims of
Human Trafficking 1 (2008), https://aspe.hhs.gov/system/files/pdf/
75356/ib.pdf (“Treating the Hidden Wounds”) (recent studies have
identified “a complex range of post-trauma symptoms”).
4
Amina Memon, Credibility of Asylum Claims: Consistency and
Accuracy of Autobiographical Memory Reports Following
Trauma, 26 Applied Cognitive Psych. 677, 677 (2012) (“[E]ach
eyewitness has a unique reaction to a traumatic event and response
UPUSBVN BJTOPUPOMZJOnVFODFECZQFSTPOBMJUZBOEDPQJOHTUZMFCVU
also by language and culture.”); Jane Herlihy et al., Just Tell Us
What Happened to You: Autobiographical Memory and Seeking
Asylum, 26 Applied Cognitive Psych. 661, 668-69 (2012) (discussing
studies about how adult trauma memories can manifest differently
in collectivistic and individualistic cultures); Thinking About
Trauma in the Context of Domestic Violence: An Integrated
Framework, Nat’l Council Juv. & Fam. Ct. Judges 6 (2014)
(“Culture, context, and identity can all impact a person’s experience
of trauma[.]”).
10
supra note 2, at 1455-56. These problems are especially
acute for victims of repeated abuse, who may remember
the “gist” of the experiences, but “confuse the details of
particular incidents,” such as times, dates, and “which
specific actions occurred on which specific occasion.” Id.
at 1514. Applicants may even have difficulty identifying
perpetrators of abuse or torture, because they were
focused on a more stressful detail, like the presence or
use of a weapon. Id. at 1457. It is “normal” for victims of
trauma and sexual assault “to not know or remember
complete details.” Sexual Assault Incident Reports:
Investigative Strategies, Int’l Ass’n of Chiefs of Police 3
(Aug. 8, 2018), https://www.theiacp.org/resources/
document/sexual-assault-incident-reports-investigative
-strategies; see J. Douglas Bremner, Traumatic Stress:
Effects on the Brain, 8 Dialogues Clinical Neuroscience
445, 448-49 (2006) (discussing trauma’s impact on
memory).
Recalling dates is particularly difficult for trauma
survivors. The brain is good at recalling when events
occurred relative to one another, but bad at recalling
discrete dates in a vacuum. See Singh v. Gonzales, 403
F.3d 1081, 1092 (9th Cir. 2005) (citing Juliet Cohen,
Questions of Credibility: Omissions, Discrepancies and
Errors of Recall in the Testimony of Asylum Seekers, 13
Int’l J. Refugee L. 293 (2001)). Routinely, asylum
applicants fail to recall accurate calendar dates—but it is
widely recognized that the applicants may nevertheless
be credible. “An inability to accurately recall the date
when a traumatic event occurred is not particularly
probative of a witness’s credibility when alleging
traumatic persecution, because such traumatic
persecution itself may cause the witness difficulty in
11
recalling details of the incident.” Marouf v. Lynch, 811
F.3d 174, 185 (6th Cir. 2016) (opinion of Merritt, J.); see
also Longwe v. Keisler, 251 F. App’x 718, 720 (2d Cir.
2007) (“[T]here was nothing in the record to support the
IJ’s speculation that ‘one normally doesn’t forget’ the
date of such a ‘traumatic event.’”) (record cite omitted);
Melanie A. Conroy, Real Bias: How Real ID’s
Credibility and Corroboration Requirements Impair
Sexual Minority Asylum Applicants, 24 Berkeley J.
Gender L. & Just. 1, 37 (2009) (“[T]he recall of exact
dates of traumatic events is not a suitable marker for the
truthfulness of statements.”). The same phenomenon
can prevent survivors of trauma from recalling other
peripheral details. See, e.g., Morgan v. Mukasey, 529
F.3d 1202, 1209 (9th Cir. 2008) (noting applicant’s
“inability to be exact” about whether her attackers
jumped out of a car or were waiting for her, was “a trivial
element of her traumatic experience” and did not
undermine her credibility).
Second, trauma survivors commonly use avoidance to
try to deal with the stress and anxiety that trauma
yields. See Trauma-Informed Care, supra note 3, at 7374. Survivors may be reluctant to discuss details of their
abuse because they do not want to suffer the pain of
reliving their experiences. See David S. Gangsei & Ana
C. Deutsch, Psychological Evaluation of Asylum
Seekers as a Therapeutic Process, 17 Torture 79, 80
(2007) (“[S]urvivors most often don’t want to talk about
the torture[.]”); Deborah Epstein & Lisa A. Goodman,
Discounting Women: Doubting Domestic Violence
Survivors’ Credibility and Dismissing Their
Experiences, 167 U. Pa. L. Rev. 399, 410-11 (2019).
Telling their stories in a question-and-answer format, as
12
in an asylum interview or hearing, can amplify the effect.
Kagan, supra note 2, at 394.
Third, trauma survivors can struggle to describe
linear narratives. A person being tortured may focus on
sensory or emotional perceptions, such as “thoughts of
dying,” “trying not to panic,” or “loved ones also in
danger.” Davis & Follette, supra note 2, at 1459. This
means that, afterwards, memories consist of “the
sensory data from the traumatic event—the sights,
sounds, smells, and bodily sensations—but without the
linguistic narrative structure that gives a person’s
ordinary memories a sense of logical and chronological
coherence.” Stephen Paskey, Telling Refugee Stories:
Trauma, Credibility, and the Adversarial Adjudication
of Claims for Asylum, 56 Santa Clara L. Rev. 457, 487
(2016); see also Epstein & Goodman, supra 11, at 411
([Traumatic memories] are encoded in the form of
sensations, flashes, and images, often with little or no
story.”); Alana Mosley, Re-Victimization and the
Asylum Process: Jimenez Ferreira v. Lynch: ReAssessing the Weight Placed on Credible Fear
Interviews in Determining Credibility, 36 Law & Ineq.
315, 326 (2018) (noting “the difficulty many survivors of
abuse or persecution have in articulating a linear
narrative
that
effectively
summarizes
their
experiences”); Hannah Rogers et al., The Importance of
Looking Credible: the Impact of the Behavioural
Sequelae of Post-Traumatic Stress Disorder on the
Credibility of Asylum Seekers, 21 Psych., Crime & L.
139, 140 (2015) (“[D]uring acute trauma, conscious
processing may be impaired as the individual goes into
survival mode.”). Survivors thus may have greater
13
difficulty articulating linear testimony than a typical
witness in another type of proceeding.
Fourth, asylum applicants may suffer from an
“impairment of recall” as a result of the traumatic
experience. Kagan, supra note 2, at 388 (quoting Juliet
Cohen,
Questions
of
Credibility:
Omissions,
Discrepancies and Errors of Recall in the Testimony of
Asylum Seekers, 13 Int’l J. Refugee L. 293, 298, 308
(2001)). At its most extreme, trauma survivors may
suffer from “psychogenic amnesia,” or “loss of memory
caused by psychological trauma.” Davis & Follette,
supra note 2, at 1462. Loss of memory can be broad or
narrow, “even as narrow as selected components of the
traumatic event.” Id. at 1462-63. This impairment of
recall can affect how a survivor recounts any event
related to trauma—not just descriptions of persecution,
but also facts bearing on eligibility for cancellation of
removal under the Violence Against Women Act, or on
the bars to withholding of removal. See 8 U.S.C.
§§ 1229a(c)(4), 1229b(b)(2), 1231(b)(3)(B).
Fifth, and conversely, memories may improve over
time, as the mind begins to process the traumatic
experience. “Talking, disclosing events, retrieving
painful
memories—in
summary,
verbalizing
experiences—sets up a process in which the individual
can access the suppressed memories and feelings, gain
consciousness of the origin and development of his/her
current distress, and put words to previously undefined
emotions.” Gangsei & Deutsch, supra 11, at 83. The more
applicants revisit their stories—a painful process—the
more they may be able to counteract the subconscious
suppression of these memories. See Kagan, supra note 2,
14
at 389. “Thus, it is not unusual to find a victim or witness
who at first is unable to fully describe what happened,
but is able to later provide much richer and coherent
reports.” Davis & Follette, supra note 2, at 1456.
A by-product of this road to recovery is that later
recollections of the same events may be more detailed
than earlier recollections. This process of grappling with
the experience of persecution, abuse, or torture can
manifest as a shifting or inconsistent narrative. Mosley,
supra 12, at 327. “People suffering from post-traumatic
stress [are] particularly likely to give inconsistent
accounts the more time passed between interviews.”
Kagan, supra note 2, at 388-89. Thus, applicants may be
able to provide more details in a hearing before an
immigration judge than they could provide in a written
application or airport interview with an asylum officer
years earlier. While decision-makers untrained in
trauma may perceive these changes as showing a lack of
credibility, in fact the ability to provide a more robust
and detailed narrative with further distance from the
traumatic event demonstrates a normal—indeed,
healthy—manner of processing the unthinkable.
Finally, trauma can trigger shame, and with it a
reluctance to testify about details, especially early in the
asylum process when applicants have had less time to
process the traumas. “[T]he applicant may feel shame or
embarrassment in disclosing the abuse they suffered.”
Mosley, supra 12, at 326-27; see Gangsei & Deutsch,
supra 11, at 80 (“[S]urvivors frequently bear the burden
of guilt and shame, which makes it too painful and
humiliating to tell the outside world about the torture.”);
Conroy, supra 11, at 38 (noting the difficulty of
15
disclosing shameful experiences to “authoritative
government officers”). This phenomenon, too, can mean
that applicants reveal certain details or events only later
in the asylum process. See Kagan, supra note 2, at 389.
This process can yield inconsistencies—but these sorts
of inconsistencies do not indicate a lack of credibility.
See, e.g., Fiadjoe v. Att’y Gen., 411 F.3d 135, 159 (3d Cir.
2005) (failure to discuss “the shameful and taboo
incidents of incestuous rape” in an early screening
interview did not demonstrate a non-credible
inconsistency with later testimony because it was “not
surprising” that the applicant would hesitate to disclose
this abuse “in a strange place before a male officer”).
Trauma can thus manifest itself in many ways that
contradict stereotypes about candor, consistency, and
memory. But these effects, far from signaling a lack of
credibility, can in fact be evidence of the very abuse that
leads applicants to seek asylum in the first place.
B. Trauma Can Affect Demeanor.
Trauma can also affect a survivor’s demeanor,
especially when the survivor must relive or recount the
trauma itself, as in an asylum interview or hearing.
First, some survivors of trauma may “hesitate” or
“waver” when describing their experiences. Paskey,
supra 12, at 489 (quoting Kim Lane Scheppele, Just the
Facts, Ma’am: Sexualized Violence, Evidentiary
Habits, and the Revision of Truth, 37 N.Y.L. Sch. L.
Rev. 123, 126-27 (1992)). Other survivors may have
“[f]ixed” or “glazed” eyes or a “[m]onotonous voice,”
rather than the sustained eye contact and varied voice
inflection that characterizes most speech. TraumaInformed Care, supra note 3, at 69. “Applicants may
16
appear distrustful, nervous, and may sweat excessively
due to trauma and internalized suspicion of government
authorities.” Conroy, supra 11, at 34; see Kagan, supra
note 2, at 396 (noting that refugees may exhibit
nervousness, among other symptoms, due to their “deep
physical and mental scars” from surviving torture and
violence). Still other asylum seekers may appear
uncertain, even with respect to central details of their
story. Paskey, supra 12, at 484. It is normal for asylum
seekers to “appear ‘uncomfortable’” when recounting
their trauma. Ilunga v. Holder, 777 F.3d 199, 212 (4th
Cir. 2015).
Second, on the other side, trauma may also leave
survivors feeling numb, or even lead them to dissociate.
In order to create distance from the trauma, or as a
coping mechanism, survivors may become detached,
Trauma-Informed Care, supra note 3, at 69; see Angela
E. Waldrop & Patricia A. Resick, Coping Among Adult
Female Victims of Domestic Violence, 19 J. Fam.
Violence 291, 294, 299 (2004). This numbness and
dissociation can make survivors appear mechanical or
unemotional even when they describe horrific
experiences. See Linda Piwowarczyk, Seeking Asylum:
A Mental Health Perspective, 16 Geo. Immigr. L.J. 155,
157-58 (2001) (describing “a sense of numbing,
detachment, [and] an absence of emotional
responsiveness” as “common psychological responses to
torture and human rights violations”); Lustig, supra 7,
at 726 (trauma survivors “may become emotionally
numb”).
These effects can impact perceptions of credibility.
Like other symptoms of trauma, detachment can “make
17
it difficult for people to coherently communicate what
they have survived.” Kagan, supra note 2, at 396.
Survivors may appear “ambivalent in telling their
stories of abuse,” or they may try to “minimize[] the
seriousness of the abuse.” Catrina Brown, Women’s
Narratives of Trauma: (Re)storying Uncertainty,
Minimization, and Self-Blame, 3 Narrative Works 1,
11-12, 17 (2013). Meanwhile, numbness may violate the
expectations of those with less experience encountering
trauma survivors—who “expect all traumas to manifest
in flashbacks and arousal.” Gangsei & Deutsch, supra 11,
at 82. Withdrawal and detachment thus “can appear
suspicious to lay persons.” Id.; see Rogers, supra 12, at
150-51 (noting that decision-makers who are expecting
trauma survivors to display fear may negatively
perceive asylum seekers who appear numb); see also
Epstein & Goodman, supra 11, at 419 (describing the
“profound gap in understanding,” that is, “assuming a
[domestic violence] survivor’s story is less plausible
when it fails to meet her judicial audience’s expectations
about how the world works”).
C. The Asylum Process Itself Sharpens Trauma’s
Effects.
The asylum process itself intensifies trauma’s effects.
Merely encountering immigration officials, law
enforcement, or judicial officers can amplify the stress
that trauma yields—and with it, the accompanying
effects on testimony.
First, the act of recounting trauma can itself heighten
trauma’s effects. Scientists have explained that
survivors, when re-describing their experiences,
“commonly, . . . suffer a resurgence of psychological
18
distress[.]” Gangsei & Deutsch, supra 11, at 86. Some
sufferers of post-traumatic stress “re-experience[]” the
trauma when they face external triggers. Piwowarczyk,
supra 16, at 157; see Mosley, supra 12, at 321
(“[I]ntrusion symptoms may cause survivors to have
flashbacks or to ‘relive’ both the traumatic event and the
emotional intensity of that event, over and over
again[.]”); Paskey, supra 12, at 486 (“Survivors often
‘relive’ traumatic events as though they were happening
in the present.”). In some cases, simply “remembering
constitutes new trauma.” Conroy, supra 11, at 35
(emphasis added). Merely feeling stressed during an
encounter with law enforcement can impair recall. Jim
Hopper et al., Important Things to Get Right About the
“Neurobiology of Trauma” Part 3: Memory Processes,
End Violence Against Women Int’l 5-6 (Sept. 2020).
Second, many trauma survivors fear law enforcement,
and for good reason: Their home governments may have
sided with their abusers—either failing to stop the abuse
or perpetrating it themselves. Cf. Treating the Hidden
Wounds, supra note 3, at 3 (describing how trafficking
survivors fear law enforcement). Trauma survivors may
be hypersensitive to perceived threats, even if no actual
threat exists. Shawn C. Marsh et al., Preparing for a
Trauma Consultation in Your Juvenile and Family
Court, Nat’l Council Juv. & Fam. Ct. Judges 10 (Apr. 3,
2015). Applicants who have fled their homes precisely
because of persecution by authorities may appear
nervous when they must face government officials in a
new country. See Kagan, supra note 2, at 379-80; cf.
Thinking About Trauma in the Context of Domestic
Violence: An Integrated Framework, Nat’l Council Juv.
& Fam. Ct. Judges 3 (2014) (describing how survivors of
19
domestic violence may avoid making eye contact during
legal proceedings as a means of self-protection while
recounting the traumatic event).
Third, asylum seekers who fear authority may also
avoid telling the unvarnished details of their stories in
early asylum interviews, such as those in airports or
other points of entry. See Conroy, supra 11, at 13-14;
Senathirajah v. INS, 157 F.3d 210, 218 (3d Cir. 1998)
(“Given [the asylum seeker’s] allegations of torture and
detention, he may well have been reluctant to disclose
the breadth of his suffering in Sri Lanka to a government
official upon arriving in the United States[.]”);
Balasubramanrim v. INS, 143 F.3d 157, 163 (3d Cir.
1998) (“[A]n arriving alien who has suffered abuse
during interrogation sessions by government officials in
his home country may be reluctant to reveal such
information during the first meeting with government
officials in this country.”); cf. Deborah A. Morgan, Not
Gay Enough for the Government: Racial and Sexual
Stereotypes in Sexual Orientation Asylum Cases, 15
Law & Sexuality 135, 140-41 (2006) (suggesting that
some asylum applicants may be reluctant to reveal to
authorities the very aspects of their lives that led to
their persecution in their home countries). This is
another reason why narratives often become more
detailed as the asylum process continues. See supra 1314 (explaining how improvements in memory can yield
similar effects).
Again, none of these phenomena demonstrate a lack
of credibility—though they can be mistaken as such.
Some commentators draw an analogy to test anxiety:
Students “may know the material very well, but
20
nevertheless, do very poorly on the test because their
anxiety does not permit them to retrieve the material
from memory (usually until just after they leave the
testing situation and their anxiety drops).” Davis &
Follette, supra note 2, at 1458. In just the same way,
even survivors who can recall every detail of their
trauma may be unable to reproduce those details when
they come face to face with government officials who
evoke memories of their persecutors. Nor are these
effects limited to the period immediately following a
traumatic event; rather, they can persist over years or
even a lifetime. See Sexual Assault Incident Reports,
supra 9, at 5; Trauma-Informed Care, supra note 3, at
46. “[T]he emotional effects of trauma can be persistent
and devastating.” Treating the Hidden Wounds, supra
note 3, at 1.
III.
Immigration Judges Are Far Better Suited
Than Appellate Judges To Assess Credibility
Combined With The Effects Of Trauma.
The difficulty of making credibility determinations in
asylum cases underscores why Congress properly
vested the responsibility for making those judgments in
immigration judges, rather than appellate courts.
Immigration judges hear live testimony. During their
time on the bench, they will typically hear many asylum
cases. And they can receive specialized training on how
to incorporate trauma’s effects into asylum
5
adjudications. When the immigration judge has declined
5
To be sure, amici believe that immigration judges should receive
more training on a number of issues that bear on asylum, including
trauma and cultural sensitivity. Amici are also aware that the
21
to find an applicant’s testimony non-credible, appellate
courts must not step in to make adverse credibility
determinations themselves.
Amici can provide countless examples of asylum
applicants whose testimony lacks “traditional” indicia of
credibility but whose accounts of persecution are both
credible and true. Immigration judges, on hearing such
cases, can more easily recognize that the phenomena
described above—gaps in memory, inconsistencies, and
mannerisms like detachment or hesitancy—are
themselves evidence of trauma, not red flags that the
applicant is non-credible.
A. Congress Properly Vested Immigration
Judges, Not Appellate Courts, With The
Responsibility
For
Making
Difficult
Credibility Determinations.
In the REAL ID Act, Congress placed the
responsibility of making credibility determinations on
immigration judges. In the initial proceeding before an
immigration judge, “[t]here is no presumption of
credibility[.]”
8
U.S.C.
§§
1158(b)(1)(B)(iii),
1229a(c)(4)(C). By contrast, when those decisions are
reviewed by the BIA—whose judges have broad
experience in asylum cases, but have not heard the
particular
testimony—there
is
a
“rebuttable
presumption of credibility on appeal,” if “no adverse
credibility determination is explicitly made” by the
training that immigration judges should receive may have been
offered inconsistently over time. The question in this case, however,
is where to vest responsibility for making credibility
determinations in the first instance, as between immigration judges
and appellate courts. That question has a clear answer.
22
immigration judge. 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1229a(c)(4)(C). Congress made no provision for
permitting federal appellate judges to make their own
adverse credibility determinations when neither
immigration judges nor the BIA have done so.
For three key reasons, Congress chose wisely in
allocating to immigration judges, rather than appellate
courts, the important responsibility for making
credibility determinations.
First, immigration judges are by far the best placed
to make credibility determinations. Immigration judges
directly observe asylum applicants and have the
greatest ability to consider their live testimony in the
context of the entire record. This 360-degree
perspective allows immigration judges to assess
whether applicants have testified credibly even though
their testimony may, at first blush, lack stereotypical
indicia of credibility (such as minor inconsistencies or
omitting specific dates). Credibility determinations are
too difficult and fraught—made more so by the effects of
trauma—to permit appellate judges to make them in the
first instance, on a cold record, when no such
determination was made below.
Moreover, immigration judges can receive specialized
training about immigration and asylum issues. See
Improving Efficiency and Ensuring Justice in the
Immigration Court System: Hearing Before the S.
Comm. on the Judiciary, 112th Cong. 4 (2011)
(statement of Juan P. Osuna, Director, Executive Office
for Immigration Review), https://www.justice.gov/sites/
default/files/eoir/legacy/2011/05/18/EOIRtestimony0518
2011.pdf (describing training provided to immigration
23
judges). When such training is properly designed,
deployed, and applied, it can provide immigration judges
with the tools to account for the difference between
common perceptions of credible testimony and what is
actually credible in the context of asylum cases that are
replete with trauma.
Second, on the other side, appellate judges are
particularly ill-suited to assess credibility. Across
substantive areas, appellate judges are properly
cautious about assessing witness credibility on a “cold
record.” See, e.g., Int’l Bhd. of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers & Helpers, AFLCIO v. Hardeman, 401 U.S. 233, 246 (1971). And in
asylum cases, the need for such caution is acute.
Appellate judges are generalists, and they neither
receive specialized training nor possess immigration
judges’ broad experience with asylum cases and their
accompanying traumas.
Third, reserving adverse credibility determinations
for immigration judges facilitates review. If an
immigration judge denies an application based on a
negative credibility finding, Congress’s statutory
scheme encourages that judge to make that finding
explicit. That explicit statement, in turn, enables the
applicant to challenge the decision on appeal, by showing
that the judge’s credibility determination was clearly
erroneous or did not support the ultimate determination.
Cf. 8 C.F.R. § 1003.1(d)(3)(i). For example, if an
immigration judge finds an applicant non-credible
because of apparent inconsistencies, but does not
account for the well-documented effects of trauma on
testimony, the applicant can argue on review that the
24
judge did not properly “[c]onsider[] the totality of the
circumstances[.]” 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1229a(c)(4)(C). But if an immigration judge does not
make an express credibility finding, an applicant is left
to guess the basis for the decision, hamstringing the
applicant’s ability to challenge it.
Appellate courts are well-suited to reviewing adverse
credibility determinations that are made on the record.
Applying normal appellate review and established
appellate standards, appellate courts can weigh whether
immigration judges have sufficiently justified their
adverse credibility determinations and whether those
determinations were error on the record before the
immigration judges. But courts cannot apply appellate
tools and appellate standards to review a credibility
determination that the immigration judge does not
make. And certainly, an appellate court has no business
affirming based on its own adverse credibility
determination or its guess about what the immigration
judge believed (but did not commit to the record). The
system works sensibly only if immigration judges make
adverse credibility determinations expressly.
B. Immigration Judges Have Rightfully Given
Asylum To Applicants Whose Testimony May
Not Comport With Traditional Indicia Of
Credibility Because Of Trauma.
Scientific research can present as abstract, but the
issues amici address in this brief are anything but.
Amici’s clients have suffered horrific persecution and
violence, and many display trauma’s effects when telling
their stories. Yet even though their stories sometimes
lack “traditional” indicia of credibility, immigration
25
judges have recognized that these stories are both
credible and true—and show that Amici’s clients
deserve asylum.
6
Elbia. Elbia, an indigenous Guatemalan woman,
sought asylum in the United States after enduring
extreme physical and sexual violence at the hands of her
husband. When she tried to flee, he pursued her. In the
rural area where she lived, and in view of the
discrimination Guatemala’s indigenous people face,
police would not intervene. After Elbia at last escaped
to the United States, a psychologist diagnosed her with
post-traumatic stress disorder. Elbia first told her story
to an asylum officer in a credible fear interview. In her
hearing before the immigration judge, the government
attempted to undermine her credibility based on
perceived inconsistencies with the credible fear
interview. Elbia testified that she did not tell her full
story in that interview because she was ashamed to
speak about her abuse, especially to a male asylum
officer. The immigration judge found Elbia credible and
granted asylum.
Ujjal. Ujjal sought asylum because supporters of
another political party had beaten him with pipes while
he was distributing flyers. Ujjal’s attackers threatened
to kill him if he continued his political advocacy. When
Ujjal testified before the immigration judge, his manner
was flat, detached, and robotic; at times, Ujjal even
appeared to be apathetic about his own claim. Yet
despite Ujjal’s mannerisms, the immigration judge
6
For the safety and privacy of amici’s clients, all names used in this
brief are pseudonyms.
26
recognized that his story was credible and true, and
granted Ujjal asylum.
Sandeep. Sandeep sought asylum as a member of a
Sikh political group, after members of a rival political
party threatened him in an effort to force Sandeep to
stop his political activities. Eventually, the rival party’s
thugs came to the farm where Sandeep worked. They
beat Sandeep severely—so severely that he needed
hospital treatment for his head wounds. But the police in
his home country took no action, and Sandeep sought
asylum in the United States.
When he testified before the immigration judge,
Sandeep struggled with recounting details of his
experience. The number of political rallies and campaign
events Sandeep had attended, the date of the beating,
and the number of assailants—all of these details were
beyond Sandeep’s recall. The immigration judge,
however, recognized that these details’ absence did not
show that Sandeep was not credible. He granted
Sandeep asylum.
Rochelle. Rochelle fled her native Haiti after her
uncle physically assaulted and threatened her with
death on multiple occasions, including by sending men to
rape her, because the uncle disputed her claim to land
Rochelle inherited after her mother’s death. Even after
Rochelle fled, her former boyfriend followed her and
subjected her to continued extreme physical and sexual
abuse. When she first shared her story in a credible fear
interview, Rochelle did not disclose the extent of her
domestic violence, and the government argued that this
inconsistency with her later testimony showed Rochelle
lacked credibility. The immigration judge credited
27
Rochelle’s explanation that she had not divulged this
information during her first interview because of the
traumatic nature of her experiences.
These applicants all exhibited classic signs of
trauma—detachment, inability to recall detail, shame,
fear of authority, and inconsistent accounts. A layperson
might seize on these characteristics as marks of
deception. Yet in every case, the immigration judges—
drawing on their experience dealing with the issues of
trauma common among asylum applicants—got it right.
They recognized that these characteristics did not show
a lack of credibility, but instead were evidence of trauma
demonstrating the effects of the very real persecution
these applicants had suffered. By contrast, an appellate
court that seized on inconsistencies or an inability to
recall details would likely get it badly wrong. For this
reason, Congress properly did not permit appellate
courts to make their own adverse credibility
determinations.
IV.
Precluding Federal Appellate Courts From
Making Their Own Adverse Credibility
Findings Will Not Yield Adverse Effects.
There is nothing to the government’s suggestion that,
unless the Ninth Circuit is reversed, immigration judges
will be impossibly burdened and swaths of undeserving
applicants will gain asylum based only on non-credible
testimony. See Dai Pet. 26-27.
First, Amici’s experience shows that the Question
Presented here—while important in the small set of
cases where it arises—in fact comes up infrequently on
review. Immigration judges, aware of their critical role
in assessing credibility, are rarely silent on issues of
28
credibility. In the vast majority of cases, immigration
judges exercise their responsibility and explicitly assess
the applicant’s credibility.
Second, even when appellate courts must accept that
an applicant’s testimony is credible, that alone does not
sustain the applicant’s burden. The testimony must also
be “persuasive” and provide “specific facts”
demonstrating the applicant’s entitlement to refugee
status. 8 U.S.C. § 1158(b)(1)(B)(ii). Credible testimony
will sometimes meet these requirements, and sometimes
it will not.
In particular, treating testimony as credible does not
always mean that the testimony conclusively establishes
the truth of every detail of what happened in the past.
Take, for example, cases where trauma yields
inconsistencies in details such as a set of dates. If the
immigration judge has not made an adverse credibility
determination, the appellate court must take the
testimony as credible. But that does not mean that the
appellate court must take those dates as true where, for
example, documentary evidence shows those dates to be
inaccurate. Sometimes, too, those details may matter to
the applicant’s overall burden—so that the applicant’s
testimony, though credible, is insufficient to carry his or
her burden (or at least is insufficient to show error in the
immigration judge’s determination that the applicant
did not carry his or her burden). Regardless of how this
Court decides this case, appellate courts will continue to
weigh those non-credibility issues under the standards
of review that the INA provides.
29
CONCLUSION
For the foregoing reasons, amici curiae urge the
Court to affirm the Ninth Circuit’s judgments.
January 11, 2021
Respectfully submitted,
LEIGH J. JAHNIG
JENNER & BLOCK LLP
353 N. Clark Street
Chicago, IL 60654
(312) 222-9350
ZACHARY C. SCHAUF
Counsel of Record
JENNER & BLOCK LLP
1099 New York Avenue NW
Suite 900
Washington, DC 20001
(202) 639-6000
ZSchauf@jenner.com
Counsel for Amici Curiae
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