August 31, 2020
Consider this situation: You are having a conversation with a stranger for the first time. As they speak, their eyes shift. While the person does not appear to be nervous or anxious, their affect is flat. The story this person tells is so jumbled that you do not know where it ends or begins. Something in your gut feels “off.” It would be nice if you had more time to listen to this person, but you’re meeting someone else in five minutes. You are running out of time. If you had to determine whether this person was credible or told the truth, what would be your first impression?
Dana Leigh Marks, an immigration judge, originally posed this hypothetical. According to her, many immigration judges might encounter this person and believe that they are dishonest. If this person was an asylum applicant, their luck might run out. In late August, the Public Justice Center and allies filed an amicus brief in support of a Cameroonian asylum applicant in B.C. v. Barr. Our brief, written by Murnaghan Appellate Advocacy Fellow Dena Robinson, addressed how credibility determinations can be detrimental to any asylum applicant who is a trauma survivor or is from a non-Western or non-European country.
B.C. was a member of a political party targeted by the Cameroonian government. After witnessing Cameroonian police officials shoot and kill his brother in front of him, while the two were filming on Facebook Live, B.C. fled to the United States. Upon arriving in the United States, B.C. was placed in detention and filed for asylum. An immigration judge denied his petition for asylum after finding that his “well-founded fear of persecution” was not credible. In essence, the judge did not believe the reason for B.C.’s journey to get to the United States. Nor did the judge believe that the Department of Homeland Security had taken custody of his membership card which he, therefore, could not introduce at his hearing to prove his status in this political group.
B.C.’s trauma and a judge’s potential implicit and cultural biases add another layer to the hypothetical above. In our amicus brief, joined by the Black Alliance for Just Immigration, the Capital Area Immigrants’ Rights Coalition, and Dolores Street Community Services, we addressed the subjectivity of the credibility determinations made in the asylum application process, down to vagueness of terms such as “demeanor,” “credibility,” and “candor.” Our brief detailed how demeanor is an unreliable gauge for assessing one’s credibility because it relies on Eurocentric and white standards about how one should speak and act when in court. For example, in Western cultures, maintaining eye contact is associated with honesty. Maintaining eye contact, especially with an authority figure, can be considered rude or threatening in Eastern cultures. Our brief also addressed how trauma, like B.C.’s, changes how our brain stores information and how we verbally retell a traumatic experience. Last, our brief addressed the pervasiveness of implicit biases within the legal institution generally, tracing those biases back to Eurocentric stock stories and understandings about the importance of time or the amount of context someone must share when telling a story.
It is impossible to talk about asylum and immigration in this country without acknowledging racism and white supremacy. Our brief addressed the racialization of immigration laws and enduring racial stereotypes that may contribute to an immigration judge’s implicit biases. For example, before the abolition of slavery, enslaved Africans and free Blacks could not testify against white people. When the Civil War ended, attorneys continued to make arguments in court that juries should discount or disbelieve Black witnesses’ testimony. This stereotype continues today – for instance, when George Zimmerman was on trial for killing Trayvon Martin, Zimmerman’s defense team effectively “othered” key prosecution witness Rachel Jeantel because she had difficulty reading her deposition testimony and struggled with literacy.
We hope that the brief will help the court understand how an asylum applicant’s trauma and an immigration judge’s implicit biases affect how the judge interprets the applicant’s story and makes a credibility determination. Incorporating this context is critical to reforming how courts determine credibility so that they do not send asylum seekers back to the dangerous situations they fled.
On a personal note, I want to underscore the importance of this brief to me. This brief allowed me to bridge my legal advocacy with my identity as a Black, first-generation American. In addition to working at the PJC, I teach narrative storytelling to high school students at Wide Angle Youth Media. I am also a Diversity, Equity, and Inclusion Facilitator and Consultant (and the co-founder of Radical Roots Consulting). I love teaching students about the Storytelling Project Curriculum and often use that framework in my DEI facilitation. I used the storytelling framework as the brief’s foundation to introduce the Third Circuit to stock stories, concealed stories, counter stories, and resistance stories. I was also able to cite cases that illustrate the courts’ role in perpetuating racism and white supremacy. For instance, in my work as a DEI facilitator, I often discuss United States v. Bhagat Singh Thind, 261 U.S. 204 (1923), where the Supreme Court held that “all whites are Caucasian, but not all Caucasians are white.” Most of all, this brief allowed me to engage in truth-telling, which is one of my personal and professional values. We all have a responsibility to speak truth to power and call out oppressive systems and white supremacy when and where we can. I’m glad we were able to do so here.
Thank you, Dena! All of your extraordinary work at the PJC leaves a lasting example for us to aspire to follow.
UPDATE: In September 2021, the U.S. Court of Appeals for the Third Circuit ruled in B.C.’s favor, reversing the denial of B.C.’s asylum application and ordering a new hearing for his asylum application because the immigration judge denied B.C. due process. Due process requires that an interpreter be provided to noncitizens who have limited English proficiency throughout entire removal proceedings and that immigration judges must meaningfully evaluate whether an interpreter is needed. The Court concluded that failure to take these steps can impermissibly affect an adverse credibility determination.