Burden of Proof and Determining Credibility
Aliens, applying for asylum and referred to an Immigration Court, will be required to testify about the details of their case in front of an Immigration Judge. In all Asylum claims, the applicant has the burden of proof, that is, they carry “the duty … to prove a certain issue by the assigned standard of proof.”1 The burden of proof then, is to demonstrate that the applicant has well founded fears of persecution due to immutable factors that fall into the five categories of Race, Religion, Nationality, Political Opinion and/or membership in a particular social group. Claims for Asylum need not be proved through evidence, as individuals fleeing from persecution are not likely to have been able to gather documents or other means of substantiating their claim. For example, one can easily imagine the difficulty in acquiring evidence of political persecution from the state that they are fleeing from. Therefore, “the case will often stand or fall on the testimony of the respondent, it is absolutely essential that detailed credibility findings be made in every asylum case.”2
Due to the lack of specific physical evidence, Immigration Judge s must carry discretionary power to determine the credibility of the applicant’s claims. As such, judges examine the witness’ testimony for any inconsistencies and omissions that may exist between the testimony and the application. Furthermore, judges also examine the demeanor of the applicant through “a person’s general physical appearance, composure or lack of composure, maintenance of eye contact, and manner of speech, including intonation, speed and fluency”3 to determine the truthfulness of the applicants claims.
Despite the importance of determining credibility in asylum cases, few other guidelines exists that regulate the criteria by which the claim is to be evaluated or to what extent the Immigration Judge must be persuaded by the claims.4 Moreover, judging demeanor and consistencies in an applicant’s testimony can be problematic for a variety of reasons. First, eye contact, manner of speech and intonation can be misleading in evaluating truthfulness. Differences in culture norms can lead to testimonials that, while seemingly dishonest to Americans, may be instead, indicative an applicant’s way of speaking.
The courtroom setting may also account for these testimonies. The adversarial nature of courtroom settings along with the authoritative position held by the presiding judge may be quite outside what is culturally acceptable elsewhere. In some places, individuals may have adopted different methods for dealing with government officials, and may offer less or more information during their testimony due to this conditioning. Lastly, during the application process and during the trial, applicants may withhold or change their testimony not because they intend to commit fraud, but rather, as a result of a traumatic event that is spurring their application. Reliving traumatic details during the trial may result in exceptional mental anguish and can account for inconsistencies or lack of details. Thus the unique context of asylum cases may “adversely affect the adjudicator’s ability to interpret accurately behavioral signals or to evaluate evidentiary discrepancies.”5
Asylum for Chinese applicants fleeing China’s One Child Policy
Following the unprecedented population explosion of the 1950s and 1960s, the Chinese government instituted new methods to deals with overpopulation. Starting in 1979 the Chinese government implemented their one child policy that reduced the number of children couples could have, to just one. Couples who wished to have children must first have been married and then apply for permission from the federal government. Age restrictions were also introduced that required that men to be 22 years or older and women to be older than 20 before they could apply for a marriage license. Other regulations followed, placing stringent economic benefits and punishments for those who adhered or disregarded these stipulations.
When coercion did not sufficiently dissuade couples from having more than one child, forced abortions and sterilizations took place and make up many of these Asylum cases. Following attempts by President George H. W. Bush to address the issue “in 1996 Congress took definitive action to protect Chinese nationals by passing section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act”6 which would “provide definitive protection for refugees persecuted by coercive family planning policies.”7
The BIA interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act (henceforth written as IIRIRA) expanded the rights given to Chinese women fleeing the one child policy to their legal husbands and children.8 However, these claims to Asylum do not formally extend to common law spouses or boyfriends and has been a source of great controversy in the last decade. In some cases couples, even those who have wed could not receive permission from the Chinese government to have children, often times due to the couple’s age. In these cases, denying Asylum has been argued to be misguided and to miss the point of the IIRIRA. Furthermore, the court has not been definitive on the issue, resulting in an unclear future for Chinese applicants.
Ge v. Ashcroft
Adverse credibility determinations are critical for Chinese applicants fleeing China’s one child policy, as recent legal strategies have attempted to demonstrate to the court the arbitrary nature of a legal marriage in China. The court has adopted the hard line of a strict legal definition of “husband” to ensure that a certain level of intimacy exists between the couple, to avoid fraud. A positive credibility determination is immensely important, due the highlighted discretionary power the Immigration Judge holds in determining Chinese applicants fleeing the one child policy.
Ge v. Ashcroft demonstrates these aforementioned problems. Wenda Ge applied for asylum, asserting that his wife has undergone 3 involuntary abortions, despite being fitted with an intrauterine device.9 After the birth of their first child, Ge became pregnant in 1991. She was dragged from the shipping company where she and Ge worked, to a hospital by local authorities, to have an abortion. In 1996, Ge’s wife became pregnant for the second time and was again forced to have an abortion. This time however, the authorities found that the pregnancy was not an accident and asked Ge and his wife to resign from their respective positions at the shipping company. The third pregnancy came occurred in 1999. Ge’s wife, fearful, hid in a village.”10 Authorities found Ge at the restaurant he had opened since being fired from his job in 1996 and took Ge into custody. Ge was beaten by officers at the detention center he had been taken to. After three days, he escaped through a bathroom window. From there, he hid for 2 months in a friend’s home, until family members could gather enough money to pay for a United States visa. His wife, still in China, was forced to have her final abortion, despite being 7 months pregnant. After having her third and final abortion, officials coerced her into signing a document stating she would return in 2 months for sterilization. Instead, Ge’s wife hid in a suburb of Sichuan.11
Ge argued that he feared forced sterilization, should he return to China. Ge’s application was denied by the Immigration Judge, who delivered an adverse credibility determination. While the Immigration Judge pointed out aspects of Ge’s testimony as being incredible or implausible, the Immigration Judge did not point to any inconsistencies in Ge’s testimony or refer to any adverse signs of demeanor.12 Ge appealed, and the case was taken to the ninth circuit of appeals, overturning the Immigration Judge’s ruling. The court found that Immigration Judge’s findings were “based on the IJ’s [Immigration Judge’s] personal conjecture about what Chinese authorities would or would not do”13 and that “the record lacks evidence upon which an adverse credibility determination can be made.”14
While Ge conducted a successful appeal, cases like his demonstrate the power an adverse credibility determination can have on an asylum application. The appeals court found that Ge had provided consistent and credible testimony, which ought not to garner an adverse credibility determination. Yet, Ge was originally denied Asylum due to loose constraints and a lack of guidelines regulating how Immigration Judge’s deliver credibility determinations.
The discretionary power in determining credibility for Asylum cases has proven to be problematic, due to the process’ inherent subjectivity. While fraud is a concern, it seems that more inclusive measures ought to be taken to ensure that those deserving of Asylum or refugee status are not denied. Immigration Judges and Asylee applicants are placed into difficult positions. Both, in many cases, are unware or ignorant to the culture and norms of the other, and as such, can spark great difficulty in credible determination proceedings. These issues must be given greater consideration in the future to create a more efficient system.
For Chinese applicants fleeing China’s one child policy, credibility determinations are critical. In a context of the One Child Policy, the line between forced and voluntary abortions is hazy, and nearly impossible to prove. Furthermore, the hardline on husbands as being the only beneficiary of these Asylum cases, misses the point of the measure. More particular guidelines are needed for Immigration Judges that can give both applicants and judges more clarity. In this way, judges can more effectively administer correct credibility determinations and applicants, in conjunction with their lawyers, can more effectively demonstrate their truthfulness.