I'm not gonna lie. I never do, on #ImmigrationReviewPodcastMonday.
When I saw the below quote out of the Ninth Circuit a couple months ago, I did a double take. Double read?
An IJ's role in determining credibility is hard, I'll admit it. And flat out, Ms. Shen was not consistent during her merits hearing. She didn't do great on cross, messed up some of her dates, and seemed to contradict herself on an important part of her story. Most similar respondents would have been deemed not-credible, and would either have never made it to the circuit level, or would have been summarily affirmed. But not Ms. Shen, and not this Ninth Circuit panel.
Why was I surprised though? Perhaps we've all grown too accustomed to the game of "gotcha" that's sometimes played in immigration court. A couple of inconsistencies - even on unimportant stuff, and even where it all happened years ago - and bang! Adverse credibility finding made, asylum denied. And if, like with Ms. Shen, the problem is core to the story? Forget about it.
Don't get me wrong: some respondents are not credible. But as the Ninth Circuit implicitly recognizes in Shen, somewhere along the way, credibility case law lost its way a bit. We mustn't forget that we're often talking about asylum seekers - humans who (if they're telling the truth) have suffered horrific harm many years in the past. Many are from countries where the legal system is not trusted, and most have no experience in court. Some have even been harmed by authority figures not so different from those asking them questions on cross examination.
So might a little grace be in order? Recognition that if cross examination is done by a skilled professional, it is SCARY and can poke holes in even the most truthful individual's story? Dare I say, provide some noncitizens the benefit of the doubt?
The Ninth Circuit certainly saw the good in Ms. Shen and along the way, has reminded us that even literal contractions don't necessary equate to lying. Where else might justice be best served by giving noncitizens the benefit of the doubt?
Kurzban Kurzban Tetzeli and Pratt P.A.
Lawyer
2moI am quite thrilled that so many of my work colleagues have been recognized by Best Lawyers. We are now at the Lucky 13! It is just a matter of time until more of our lawyers are recognized by this organization for their skills, where we already know how lucky we are to have such a great group of skilled lawyers in our midst.