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June 18, 2017
An asylum seeker generally has several opportunities, through initial interviews and applications, to affidavits and testimony in court, to tell his or her story. These opportunities create multiple records of the asylum seeker’s story. Decision makers in the United States examine these records for inconsistencies, by looking at facts omitted or added at any point of the application process. The discovery of inconsistencies is often fatal to the asylum claim because decision makers see inconsistences and assume the asylum seeker is not credible. Sexual assault victims are especially negatively affected by this practice, as their victimhood often leads them to omit a sexual assault early in the asylum process. Decision makers should evaluate asylum claims that involve a sexual assault with a method conscious of the reasons why victims often initially omit their sexual assault. Such a system would result in decisions that bring justice to these victims, instead of penalizing them.
Two appellate cases in the United States that involve an asylum seeker who initially omitted a sexual assault illustrate the emphasis decision makers place on inconsistencies and in turn, credibility. The first case that addresses this issue is Clemente-Giron v. Holder. In this case, the claimant did not disclose that she was raped in her country of origin in her initial application and interview. But in her affidavit and during her testimony in court, she disclosed the sexual assault. The Eighth Circuit, finding her omission to be a major inconsistency, agreed with the Immigration Judge, and held that Clemente-Giron was not credible and because she had no corroborating evidence, which is required for an asylum claim to survive when the asylum seeker is found to be not credible, she was therefore ineligible for asylum.
The courts holding in Khozhaynova v. Holder is another illustration where an initial omission of sexual assault hurt the applicant’s credibility. Though the applicant in Khozhaynova disclosed one rape by her persecutors in her initial application, through additional affidavits and testimony she clarified that in fact she was also sexually assaulted on two other occasions by the same persecutors. This contributes to the Sixth Circuit’s support of the Immigration Judge’s finding that the applicant was not credible in regard to her past persecution or fear of future persecution. This inconsistency proved fatal to her claim.
Basis for Standard of Equating Consistency with Credibility
The practice of equating consistency with credibility is not without legal background. The Real ID Act of 2005 added a provision to the United States Code that places significant emphasis on inconsistencies both between and within each record the applicant provides through written or oral testimony, as a measure of credibility. Although the fact-finder is urged to consider the “totality of the circumstances,” they are allowed to base their credibility decision on any inconsistency, inaccuracy, or falsehood, whether it goes to the heart of claim or not. In contrast, prior to the Real ID Act of 2005, many jurisdictions in the United States had only accepted adverse credibility findings when omissions or inconsistencies went to the heart of the claim. Jurisdictions in other countries, such as Australia, currently tend to follow the same route.
Furthermore, the United States has never had a presumption of credibility of the asylum applicant at the start of their claim, and, as the new standard focuses on factors that indicate a lack of credibility, it is unsurprising that many immigration judges make adverse credibility findings. In contrast, courts in Canada have a presumption that the applicant is telling the truth unless there are reasons to doubt his or her truthfulness.
The lack of a presumption of truthfulness in the United States may affect claims involving sexual assault even more negatively. Many police investigators believe that a disproportionate number of sexual assault claims are false when reported, even though current studies indicate that percentage of false sexual assault claims is between two and eight percent. Decision makers are even more likely to find a sexual assault victim not credible when she is also seeking asylum because they might view her as self-interested.
United States courts can also consider plausibility of the statements and the demeanor, candor, and responsiveness of the applicant. Since the burden is on the applicant to establish that he or she is statutorily eligible for asylum, an adverse credibility finding will often be fatal to the applicant’s claim. That is particularly likely for victims of sexual assault who may not have corroborating evidence because they failed to report the assault in their home country due to shame or social stigma. Unlike in the United States, the United Kingdom allows an adjudicator to uphold an asylum claim without corroborating evidence even when an inconsistency or other indications of a lack of credibility exist. A case from New Zealand’s Refugee Status Appeal Authority also stands in stark contrast to the United States. In Refugee Appeal No. 74665, the Court found the asylum seeker credible even though he had a “substantial credibility hurdle” stemming from his introduction of a the new claim of sexual assault two days prior to the appeal hearing that replaced the false claim of persecution he initially disclosed to hide the sexual assault.
The divergence between jurisdictions regarding which inconsistencies can be used to determine credibility requires an analysis of the effectiveness of the general method of using inconsistencies to determine credibility.
Issues with Relying on Consistency As a Measure of Credibility
Determining an applicant is not credible due to inconsistencies in his or her testimony at various stages of the asylum process is highly problematic. This is even more problematic when evaluating inconsistencies in asylum claims involving sexual assault. Often, the claimant’s reluctance to disclose a sexual assault until a later point in the testimony can actually explain the discrepancies between descriptions of a particular instance of persecution. For example, in Clemente-Giron, the asylum seeker first claimed the police simply threatened her and detained her with others. During her interview, however, she added that during the attack she was hit with a bible. Finally, in her affidavit and testimony she confessed that in reality, the police only detained her, and the other people had ran away. This is when the asylum seeker finally disclosed that five police officers had raped her in the soccer field. Obviously, her descriptions in which she omitted assault were different from the description that included it, because in the first descriptions she was hiding the sexual assault. However, unlike the New Zealand court, the Court in Clemente-Giron refused to evaluate whether her reluctance to disclose the sexual assault could explain the inconsistency, and held that her omission of the sexual assault was in itself evidence of the asylum seeker’s lack of credibility.
As seen in Clemente-Giron, there are two major questionable assumptions upon which the general practice of relying on inconsistencies, omissions, and contradictions to indicate credibility is based: 1) adjudicators can effectively distinguish an inconsistency from incompleteness of the record or misunderstanding of the applicant; and 2) a truthful account will contain fewer or no inconsistencies when compared to a false account.
True Inconsistency or Misunderstanding?
The first assumption required to equate consistency of testimony with credibility is the assumption that the descriptions that judges perceive to be inconsistent are true reflections of contradictory stories. There are many indicators that show how this assumption may be false, including the different steps of the asylum process, ordinary communication barriers, additional communication barriers from speaking through translators, cultural differences between the adjudicator and asylum seekers, and the ability of adjudicators to accurately to discern a falsehood from the truth.
First, the asylum process can affect inconsistencies within the record of a case due to differences in the way information is collected from applicants throughout the process. The way a question is asked and by whom can affect the responses. Likewise, the stages of the application process a question is posed — via an application form, during an interview with an asylum officer, while preparing with counsel, or while testifying in front of a judge—a question can end up eliciting a slightly different response at each stage. If an asylum applicant is never asked about sexual assault until she speaks to a lawyer or is in front of a judge, it is also not surprising she omits it initially. The facts of Clemente-Giron demonstrate this issue. There, the asylum applicant filled out the initial asylum form with the help of a man she had just met, and did not disclose an instance of rape, but the affidavit that disclosed the rape was written with the help of counsel she trusted.
Another inconsistency could also be the result of the asylum seeker expressing themselves differently with different interviewers. A woman applicant who has experienced a sexual assault may be less willing to share an intimate and personal traumatic event openly with a male interviewer than a female one. Or, asylum seekers may be fearful of talking to government officials, like asylum officers and immigration judges, because they have experienced past violence at the hands of government officials in their home country.
Cultural differences may make asylum applicants less aware of what is important to convey, leading them to make omissions that would be significant to a judge. Some countries may not define sexual assault the same way as the adjudicating court, so the asylum seeker may not know that more minor instances of persecution should also be reported. For example, perhaps the applicant in Khozhaynova did not initially report the attempted rapes, which involved her being stripped of her clothes and molested but not actually raped, not only because of the shame she felt, but also because reporting the incident in Russia would likely not have resulted in a police investigation. In addition, many victims of sexual assault feel shame that contributes to victim’s omission of the act. In cultures that punish the victim (either by laws or through family measures) for pre-martial or extra-marital sex, that shame is likely to be stronger and more likely to contribute to the applicant’s omission of the sexual assault until a later step in the asylum process.
Most concerning is the fact that given the same evidence, one decision-maker will deduce inconsistencies or falsehoods, while another decision-maker might not see any inconsistencies. In fact, determinations of whether someone is actually telling the truth have been shown to be only slightly more accurate than when left to chance. It seems counterintuitive to allow a claim to be rejected based on a finding by the first decision maker that the testimony is not credible even when that finding has an almost fifty percent chance of being wrong, yet courts require the asylum seeker to only establish a “reasonable possibility,” “reasonable degree of likelihood,” “reasonable chance,” or “real chance” of risk of future persecution. However, under the United States substantial evidence standard of review, an appellate court will reverse a credibility finding based on inconsistencies only if “any reasonable adjudicator would be compelled to conclude” that the asylum seeker’s testimony was actually consistent.
Does Consistency Equal Truth and Inconsistencies Equal Lies?
Equating consistency with credibility also requires the assumption that recalling memories is a consistent process. There is some evidence, however, that memory does not necessarily work this way. In fact, a perfectly consistent retelling of a story at each instance is more indicative of a person reciting a memorized script than a person recalling a truthful memory. While most people may forget details of events that happened months or years ago, victims of trauma are even more likely to be unable to recall traumatic events clearly, as the victim’s mind will often block out the traumatic memories in order to protect the victim. A person who has tried to suppress difficult memories is unlikely to recall them clearly.
Asylum seekers who have suffered past persecution like sexual assault may develop Post-Traumatic Stress Disorder or “Rape Trauma Syndrome”, which makes it difficult for them to testify. The United Nations Guidelines on the Protection of Refugees describe the symptoms, like memory loss or distortion, persistent fear, difficulty in concentration, that past sexual assault victims experience as “Rape Trauma Syndrome.” Furthermore, in the same way the asylum process or cultural differences can contribute to perceived testimonial inconsistencies (when in reality the asylum seeker’s testimony is simply incomplete), certain types of questioning in asylum can make it more difficult for a victim of sexual assault to remember clearly.
In light of the problems decision makers face in their attempt to distinguish inconsistencies and omissions from incomplete stories or misunderstandings, it would be prudent for courts to use caution when relying on inconsistencies to make adverse credibility findings. The lack of a clear scientific link between inconsistency and credibility reinforces the call for caution in equating inconsistency with credibility. In particular, decision makers should evaluate inconsistencies that result from an initial omission of a sexual assault in light of the reasons for the omission. If the reasons for the omission are common for survivors of sexual assault, the adjudicator should consider whether these reasons could sufficiently explain and account for the inconsistencies.
Through this lens of caution, I would have found the omissions of attempted rapes in Khozhaynova irrelevant to the substantial asylum claim, since there were plausible explanations for the omission, and the claim rested on other, more serious allegations of persecution. Although this approach would not have changed the outcome of the case, as the court held the claim also invalid on nexus grounds, it would have eliminated unnecessary and flawed analysis.
An approach conscious of the downfalls of too much reliance on consistency as a measure of credibility, would have likely resulted in Clemente-Giron in a remand to the Immigration Judge to consider whether the reasons for omitting the rape advocated by the dissenting judge were sufficient to explain the inconsistencies. In addition, a full consideration of the applicant’s reasons for all of her inconsistencies—not being able to discuss the sexual assault until she felt safer, being generally confused about the asylum process, her lack of education, and unfamiliarity with English — would have likely ultimately resulted in a grant of asylum after remand.
 Maldonado v. Canada (Minister of Employment and Immigration),  2 F.C. 302 (C.A.)
 See HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department,  UKSC 31, at 649 , (appeal taken from Eng.), http://www.refworld.org/cases,UK_SC,4c3456752.html.
8 U.S.C. § 1158(b)(1)(B)(iii).
 SSHD v. Chiver, UKIAT 10758 (1994) at 8.
 James C. Hathaway & Michelle Foster, The Law of Refugee Status 146 (Cambridge Univ. Press, 2d ed. 2014).
 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, ¶¶ 196, 204 (1992), http://www.unhcr.org/4d93528a9.pdf.
 James P. Eyster, Searching for the Key in the Wrong Place: Why “Common Sense” Credibility Rules Consistently Harm Refugees, 30 B.U. Int’l L.J. 1, 8 (2012) (“Studies have also ascertained that both laypersons and experts have little more than 50 percent accuracy in determining whether someone is intentionally lying.”).
 8 U.S.C. § 1252(b)(4)(B).
 Hathaway & Foster, supra note 5, at 144 (citing J. Cohen, Questions of Credibility: Omissions, Discrepancies and Errors of Recall in the Testimony of Asylum Seekers, 13 Intl. J. Ref. L. 293, 308 (2001)).
 See id.
Suggested Citation: Liliya Paraketsova, The Negative Effects of Relying on Inconsistencies to Determine Credibility in Asylum Claims Involving an Initial Omission of Sexual Assault, RefLaw (June 18, 2017), http://www.reflaw.org/the-international-non-refoulement-obligation-and-a-refugees-non-compliance-under-the-australian-migration-act-of-1958/.