Sixth Circuit Court of Appeals Expressed Concern over Asylum Process

Sixth Circuit Court of Appeals Expressed Concern over the Asylum Process

Sixth Circuit

December 05, 2014


In Slyusar v. Holder, 740 F.3d 1068, the Sixth Circuit Court of Appeals upheld a Board of Immigration Appeals dismissal of the petitioner. The opinion was posted on American Immigration Lawyer Association on February 3, 2014, after it was decided and filed on January 30, 2014.  Based on the opinion, the Court of Appeals felt constrained to uphold administrative decisions due to technicalities and formality. The Court, thus, denied both the petition for review and the motion for stay of removal.

Judges, however, do articulate conscientious and humanitarian concerns. As important policy makers, judges must follow precedents and the written law. As much as the judges might have wished to have decided otherwise, appellate review is strictly a review over legal issues. Thus, they expressed their moving concern over dilemma of decision makers and victims of the asylum process in dicta as the bulk of the conclusion. Three out of four paragraphs of a normally short and routine conclusion are dedicated for cautionary notes.

What is especially noteworthy, however, is the Circuit Court’s strong expression of substantive concern over asylum process as a whole. After all, victims of trauma may be careless and unable to make a legally sound argument with corresponding evidence gathering. If the nature of asylum process is more humanitarian, adherence to technicality may in fact and in substance punish some victims, which the legislators would have otherwise wanted to help. The three paragraphs are quoted below, in full.

Though we rule against Slyusar here, we wish to make the following cautionary note:

We respect Congress’s calculated decision to imbue upon an IJ a significant amount of deference with regards to adverse credibility determinations. However, we wish to emphasize that “[a]lthough the REAL ID Act expands the bases on which an IJ may rest an adverse credibility determination, it does not give a blank check to the IJ enabling him or her to insulate an adverse credibility determination from our review of the reasonableness  [1075]  of that determination.” Ren, 648 F.3d at 1084 (quotation omitted). As the Ren Court recognized, “victims of abuse often confuse the details of particular incidents, including the time or dates of particular assaults and which specific actions occurred on which specific occasion; thus, the ability to recall precise dates of events years after they happen is an extremely poor test of how truthful a witness’s substantive account is.” Id. at 1085-86 (internal citations and quotation marks omitted).

We are concerned that the provisions of the Act may have the effect of punishing applicants for their trauma. The Ren court disagreed with the IJ’s determination that petitioner was not a committed Christian as petitioner claimed, after interpreting petitioner’s testimony to mean that church attendance was a “low priority.” Id. at 1087. “In reviewing an adverse credibility determination, ‘the mistakes that witnesses make in all innocence must be distinguished from slips that … show that the witness is a liar or his memory completely unreliable.'” Id. (quoting Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir. 2007)).

We are further concerned by the precedent that, even if an omission or inaccuracy is categorized as de minimis, it may still support an IJ’s adverse credibility finding. See Harutyunyan v. Holder, 512 F. App’x 548, 553 (6th Cir. 2013). Although the credibility determination no longer includes a requirement that the inconsistency be material to the asylee’s claim, we urge courts to remember that any inconsistencies or inaccuracies must always be considered in light of the “totality of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii). With this in mind, we observe that credibility determinations can often be based on external factors not indicative of veracity. See, e.g., Solomon v. Gonzales, 454 F.3d 1160, 1164 (10th Cir. 2006); Zeru v. Gonzales, 503 F.3d 59, 73 (1st Cir. 2007).1Link to the text of the note Accordingly, because the Act permits IJs to deny asylum applications based on inconsistencies that are unrelated to the claim itself, we urge the exercise of due care in evaluating such inconsistencies when reaching a credibility

This Court of Appeals happens to have expressed its opinion, reluctantly, against constraints. The sentiment in the paragraphs expressed the frustration over the inherent dilemma of asylum process. Perhaps, this issue is indeed unsolvable.


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Richard Herman is a nationally-known immigration attorney with 20+ years of experience representing families and businesses in all aspects of immigration law. Richard was voted for inclusion in the 2015 edition of The Best Lawyers in America© and listed in Super Lawyers© for ten consecutive years, Richard is the founder of the Herman Legal Group, an immigration law firm serving clients in over 12 languages from offices in Cleveland, Columbus and Detroit, whose attorneys have represented diverse clientele, from Fortune 500 companies to undocumented workers, from technology entrepreneurs to NFL teams. He is the co-author of the acclaimed book, Immigrant, Inc. ---Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard has appeared FOX News (The O’Reilly Factor), ABC News 20/20, National Public Radio, and has appeared in the New York Times, USA Today, BusinessWeek, Forbes, Inc., PC World, Computerworld, CIO, TechCrunch and InformationWeek.

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