News recently broke that two dozen or so people were arrested in NYC for taking part in a scheme to create fake asylum claims. The scheme involved asylum applicants from China who were coached on ways to tell fake stories regarding a wide range of conduct, from forcible abortions to religious persecution. At least some of the coached asylum applicants did obtain asylum relief. This, of course, begs the question: what can the government do to separate the liars from the asylum applicants providing truthful claims? When I was at DOJ, I often found myself scratching my head when an asylum case came across my desk that concerned a Chinese applicant. Ninety percent of the stories concerned the same 3 or 4 types of claims and I suspected that at least some of them were made up. But I was only looking at a few cases on appeal, as were my colleagues. The bigger picture could really only be seen by the DHS folks who were tasked with litigating these cases before immigration judges.
The law in this area is quite complex. There's a whole host of conduct that the law says may justify a finding that the applicant is not credible: inconsistent testimony, forgetting to mention an important detail in a story, elusiveness when responding to questions on the witness stand, and providing information that is not plausible. The problem is that people who are telling the truth may forget details in the heat of the moment, or they may engage in conduct that does not appear plausible to others because of cultural divergences, or they may provide what appears to be inconsistent testimony because of a translation issue at the hearing. On the other hand, some liars are really good at lying. Really good. They have their stories down pat and oftentimes the government attorney can only test so much because we're dealing with alleged events that may have happened on the other side of the globe. To further complicate the issue, there a number of asylum applicants who do actually have legitimate claims but they receive bad advice and decide to change their story to fit the mold of stories that have worked in the past.
So how much leeway should an immigration judge give to an applicant? Is it better to be more lenient and accept that the price of ensuring an applicant does not get persecuted might be that five fraudulent claims slip through the cracks? Or is it more important to hold a firm line and accept that some legitimate claims may fall through the cracks? As of right now, there's just no perfect way to gauge credibility. Accordingly, these questions are not academic. They impact people's lives in very significant ways.