This week, the Ninth Circuit Court of Appeals issued a new decision (Lai v. Holder) on the credibility standards that Immigration Judges must apply to asylum applications. Credibility analyses are usually very fact-intensive, and often, it's difficult to discern any larger legal lessons that can be applied to future cases. But in this instance, I was struck by several very interesting points that the court made, which I think will have value in future cases.
Though not critical to the outcome of this particular case, the court recognized a concern that immigration attorneys have been dealing with for decades: the difficulty of communicating effectively through a translator. In a footnote, the court hypothesized that general, compound questions, such as "Is your application true, correct, and complete?" are not always precise enough to elicit accurate information from non-native English speakers, especially those communicating through translators. This is a reflection of the reality that immigration attorneys face each time they try to communicate with a client who does not speak the same language: translators sometimes paraphrase or abbreviate questions, and the client's response will reflect only their understanding of the translated question. This, unfortunately, can give the impression that the client is providing incomplete or evasive responses.
In addition, the court built on its prior case law recognizing that a person's testimony will be his or her fullest and most complete narrative of events, often more detailed than their asylum application or their declaration. In this instance, the applicant testified during cross-examination about the arrests of his wife and a fellow church member - events that he learned about after coming to the United States. These events were not included in his declaration, but the Ninth Circuit was not disturbed by this, recognizing that an asylum applicant's declaration will likely center around events that he personally experienced, and not events that impacted third parties.
Finally, the court addressed an argument that I have seen the Department of Homeland Security put forth many times in asylum proceedings - namely, that a person who was able to leave his or her country of origin without incident must not really be the target of government harm in that country. The Ninth Circuit disregarded this argument, stating that an individual's apparent ability to leave his or her country of origin without problems is not sufficient on its own to determine that the individual's testimony was not credible. It's good to see the court finally put this argument, often raised in Immigration Court, to bed.
The full text of Lai v. Holder can be found on the Ninth Circuit's website: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/04/10-73473.pdf