Wednesday, April 16, 2014

As Usual, Court Holds Credibility is Key in Asylum Cases


Oftentimes foreign nationals seeking an attorney to assist in preparing and filing an asylum application worry about the perceived lack of evidence to support their claims. What such foreign nationals typically fail to realize is the overarching importance of their own testimony as a form of evidence. A tall stack of documents could potentially be of no value if the asylum applicant's credibility is in question.

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, reaffirmed this idea of the paramountcy of credibility in asylum applications. Issued on April 14, 2014, Jin v. Holder concerned a Chinese man who had applied for asylum in the U.S. based on his fear of being persecuted in his home country on account of his practice of Christianity.

However, after changing venue twice, once from California to Arizona and then from Arizona to Nevada, the man revealed during a hearing before the Las Vegas Immigration Court that the opportunity for a friendlier judge probably played more of a role in his seeking a change of venue than did his alleged changes of address.  While it is true that dramatic fluctuations among immigration courts and among immigration judges do exist regarding asylum-application approval rates, one's seeking a location for his/her immigration-court proceedings based on that location's track record for approving asylum applications is not permissible regardless of whether perceived as a reasonable strategy. Similarly, the man admitted that a certificate he had submitted to the Las Vegas Immigration Court from a church in Las Vegas, Nevada was not legitimate because he had not been attending that church given that he was residing in California.

Unsurprisingly, the immigration judge denied the man's asylum application, citing an adverse credibility determination, and the BIA upheld that determination on appeal. The Ninth Circuit found that substantial evidence supported the BIA's affirmation of the immigration judge's adverse-credibility determination. The Ninth Circuit held the same on April 16, 2014 in Carrion Garcia v. Holder.

Although the case does expose the incentive an asylum applicant has to forum shop based on the publicly available data regarding the aforementioned dramatic fluctuations in asylum-application approval rates among the various immigration courts and immigration judges, there appears to be very little likelihood that anything will be done to correct such a phenomenon because of the wide discretion immigration judges have in asylum-application adjudications and the unwillingness of the BIA to narrow such discretion. Consequently, while forum shopping is impermissible for legitimate reasons, the U.S. Department of Justice will continue to have difficulty in maintaining an appearance of such legitimacy of its immigration-court system.

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