On June 29, the Board of Immigration Appeals (BIA) — the administrative body within DOJ that reviews immigration decisions — issued an opinion in Matter of T-D-E-, and it was brutal for the immigration judge (IJ) who granted the lead alien respondent and his family asylum. The most concise lesson it taught was that admitting you lied in the past to obtain immigration benefits doesn’t mean you are telling the truth now, but then the whole opinion is a quick (four-page) tutorial for IJs on how not to make credibility determinations.
T-D-E-
The lead respondent (identified as “T-D-E-” to comply with privacy regulations that bar the disclosure of information related to asylum claims) and his wife and child are nationals of Burkina Faso, a west African country once known as “Upper Volta”.
While it’s not clear where, when, or how they entered the United States, it appears that they were admitted on nonimmigrant visas — and T-D-E-‘s responses when he sought those visas are key to both his asylum claim and the BIA’s opinion.
T-D-E-‘s asylum application is premised on his contention that he served in his country’s Regiment of Presidential Security (in French, Régiment de Sécurité Presidentielle or RSP), the president of Burkina Faso’s bodyguard, between 2009 and 2015.
In December 2015 and again in August 2016, the respondent applied for visas that would allow him and his family to enter the United States.
So far, so good, but his problems arose when he denied on those applications that he had ever served in the military and that he had ever received what the BIA described as “specialized weapons training”.
If press reports are true, you’d likely lie about having been in the RSP, too. According to the news outlet Quartz in July 2022:
Analysts say that [former president Blaise] Compaoré, wary of the military’s history of overthrowing governments, purposely positioned the RSP as a counterweight to the army. The unit is believed to be paid, trained, and treated better than the regular military and has been described as a “parallel army” that operates above the law. The RSP has been accused of firing on unarmed protesters and killing investigative journalists.
Not that T-D-E- has been accused of “firing on unarmed protestors” or “killing investigative journalists”. Instead, the government simply contends he failed to answer truthfully (i.e., “lied”) about his military service when he sought a visa to come to the United States.
T-D-E- admitted that he had lied when he applied in 2015, because “he was trying to hide the fact that he had been in the military”, and while he contended that he was never “asked about serving in the military or firearms training” when he applied for a visa in 2016, he later said he gave “incorrect information on his visa application because he was in despair and danger and just wanted to leave Burkina Faso”.
Even though the IJ in T-D-E-‘s case “explicitly found the respondent’s misrepresentations on these visa applications indicative of a propensity to engage in dishonesty in pursuit of an immigration benefit”, the judge nonetheless concluded he was “credible”.
Why? Because T-D-E- thereafter “readily admitted that he purposely failed to disclose” those details for the simple reason that he didn’t want his visa to be denied.
The Asylum “Credibility” Rules
There’s a common saying in immigration circles: “Persecutors don’t provide affidavits.”
Consequently, unlike most immigration “benefits” or other “relief” from removal, the rules governing the evidence that an applicant must present to prove eligibility for asylum and its associated humanitarian protections (“statutory withholding” under section 241(b)(3) of the Immigration and Nationality Act, “INA”, and protection under the Convention Against Torture, or “CAT”) are deliberately lax.
Those rules are set out in the asylum statute at section 208(b)(1)(B) of the INA and provide that the alien bears the burden of proof to prove eligibility for protection but may be able to bear that burden “without corroboration”.
The caveats to those rules, however, provide that applicants can only bear their burden without corroboration if: (1) “the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the” alien satisfies the statutory standards for asylum; and (2) if aliens can “reasonably obtain” corroborating evidence for their claims, they must do so.
And Congress provided IJs with standards they can follow in determining whether the alien’s testimony and application is credible (or not) as well.
Specifically, section 208(b)(1)(B)(iii) of the INA, “Credibility determination”, states, in pertinent part:
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements ... , the internal consistency of each such statement, the consistency of such statements with other evidence of record ... , and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.
While that may seem like common sense, Congress felt compelled to add those standards to the INA in 2005 because some reviewing federal circuit courts had a habit of flyspecking and rejecting negative IJ credibility findings when they thought the evidence called for a different conclusion than the trial-level judge had arrived at.
That said, and while the applicant bears the burden of proof and is not presumed to be credible, if the IJ fails to make an adverse credibility finding, the alien enjoys “a rebuttable presumption of credibility on appeal”.
The “Ring of Truth”
Finally, by regulation, the BIA can only reverse an IJ’s credibility findings if they are “clearly erroneous” — an intermediate review standard that’s more stringent than a “preponderance of evidence” but less strict than “beyond a reasonable doubt” — and refrain from a de novo review of the IJ’s findings of fact.
The reason why the INA and the regulations are so deferential to IJ factual and credibility determinations is simple: Immigration judges are the only adjudicators who hear the alien’s testimony.
Or, as the Ninth Circuit put it more than 40 years ago:
An immigration judge alone is in a position to observe an alien's tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He is, by virtue of his acquired skill, uniquely qualified to decide whether an alien's testimony has about it the ring of truth.
An Applicant’s Admission that He Previously Lied “Does not Establish Credibility”
Even those deferential IJ fact and credibility standards have their limits, however, which brings me back to Matter of T-D-E-, where a clearly frustrated Board stated bluntly, “the respondent’s admission that he previously lied on applications for visas to enter the United States does not establish credibility”.
Instead, the BIA concurred with a different finding by the IJ, that the respondent’s admissions were “indicative of a propensity to engage in dishonesty for purposes of seeking an immigration benefit”.
The immigration judge should have stopped there, but plainly didn’t, though it was far from the only error the Board identified.
The BIA also remanded the case because T-D-E-‘s excuses for lying on his 2016 visa application were undermined by the facts on the record.
As noted, the respondent claimed he had to lie when applying for that visa out of fear for his continued well-being in his home country, and yet, the Board noted, T-D-E- testified that he didn’t “leave Burkina Faso until 2021, approximately 5 years after filing his second visa application”.
That is, admittedly, kind of a discrepancy.
Finally, the BIA remanded the case to the IJ to clean up some unfinished business.
T-D-E- offered a witness to support his application, but he could have made a better choice because that:
witness falsely testified during the hearing that he was never wanted for arrest or charged with a crime when, in fact, an international arrest warrant was entered against him and he was convicted in absentia for alleged involvement in a military coup in 2015.
To the IJ’s credit, the court found the witness was “not persuasive” and therefore “afforded his testimony limited weight”. What the IJ failed to do, however, was explicitly find that the witness wasn’t credible.
As noted, there are specific and arcane rules that govern such determinations in asylum (and statutory and CAT) proceedings, so the BIA felt compelled to direct the IJ to more clearly close that loop on remand, as well.
Congress Can’t Legislate Common Sense
Congress drafted commonsense rules intended to ensure both that: (1) valid asylum claims aren’t denied simply because aliens can’t, through no fault of their own, obtain key evidence; and (2) aliens don’t take advantage of lax rules to lie about their claims simply to receive asylum.
There’s a difference between “commonsense” and “common sense”, however, and Congress can’t legislate the latter.
In countless interactions, from personal relationships to business ones, we all operate under a baseline rule: Don’t trust a liar, especially when the benefits of lying are great and the downsides limited. Thanks to the BIA, immigration judges can now follow that fundamental rule of human existence in their courtrooms, as well.