Thread by @NicoletteGlazer

Just as I was dreading embarking on briefing "perceived inconsistencies" ... looky, look we got handed yet another zook from the BIA on how to deny asylum and insulate it from judicial review: Matter of Y-I-M-

here is the link to the decision

justice.gov/eoir/page/file…

negative credibility determinations are so prevalent these days (thanks Congress!, for coming up w the shi*y REAL ID Act) and inconsistencies are stretched to absurdity by judges & TAs now IJs are free to not even bring an inconsistency to the attention of the applicant:

"When an inconsistency is obvious or apparent, it is not necessary to bring it to an applicant’s attention. [] In such a case, “it can properly be assumed that the asylum applicant and his counsel are aware of [the inconsistencies],” and it is “the applicant’s responsibility to..

... to proffer, with or without prompting, an explanation for what appears on its face to be a clear contradiction.”
Are you F* kidding me?!? What is "obvious" and what is "not apparent" is so illusive and subjective in this field that this is plainly absurd.

Most asylum seekers testify through interpreters (and not to be a B*itch but so many contract interpreters in immigration court are plainly incompetent & would never be qualified as interpreters in real courts) ... so often what the applicant actually says and what get to IJ ...

... in English thorough the interpreter is distorted and often plainly bears little resemblance to the substance of the testimony conveyed.

Even with a good interpreter semantics and diction affect the flow of the testimony. TAs sometimes seize on the slightest deviation or ambiguity between a written statement in support of I-589 and in court testimony to claim implausibility or inconsistency.

At least when a "perceived inconsistency" is brought to the attention of the applicant the person can profer an explanation and offer additional evidence or testimony in rebuttal. Although an IJ is never required to accept the explanation at least we can establish a record.

No longer so, says BIA. IJ and TA can stay mum until closing argument (for TA) or decision for (IJ) to slam an asylum seeker with negative credibility determination based on failure to rebut or explain inconsistencies. At time evidentiary record is closed & unless IJ grants ...

... an opportunity to reopen to allow for rebutal or at least for a written position by counsel.

but back to Matter of Y-I-M decision. According to BIA "Where an inconsistency is not obvious, the key consideration is whether it is reasonable to assume that the applicant was aware of it and had an opportunity to offer an explanation before the Immigration Judge relied on it"

Wow! Just take a moment to think about this puppy!
* perceived inconsistency [subjective]
❕
* assume whether applicant is aware [of what IJ is thinking]
❕
* apply a reasonable person standard
🤔 Shuuure ... because we could have a grasp of what *a reasonable person subjected..

... to vicious cross examination and who has to explain details of being tortured and maimed* would perceive or anticipate a jurist will be thinking. Uh-huh!

But there is another layer in Matter of I-Y-M, a not so-subtle dig @ immigr counsel: citing to Martinez v. Holder, 734 F.3d 105, 112 (1st Cir. 2013) for "noting that the applicant, who was represented by counsel, had “many missed opportunities” for clarification of his testimony)

"The applicant’s representative may also decide to elicit testimony on direct examination, or on redirect to clarify inconsistencies that are brought out during the hearing, ***particularly if they are not obvious or apparent***." Wait what?

In one of my cases an asylum applicant had written a declaration stating he was attacked from behind while walking down a street. In court he elaborated the where, what, who, and how and in the process explained that multiple ppl attacked him from behind and explained ...

... that he had been ambushed and they were waiting for him in the side streets ... after TA finished cross that did not go into these facts, the IJ said "here is the perceived inconsistency: decl said from behind but you now said they came from the side streets ... xplain"

Neither I or the applicant got what the IJ was talking about. Applicant explained that they had come from behind and having his back to them he had no way to see from where they came from but that he had looked behind just before the attack and saw noone on the deserted street so

... he opined that the attackers must have been hiding in the dark crossing streets. Made sense to me. Nope the judge said, negative credibility. We briefed the heck out of this on appeal and the BIA reversed but under this new decision IJ does not have the duty to identify

perceived inconsistency and can proceed in his decision to identify the 'unidentified' perceive inconsistency which would not have been explained as a basis for a negative credibility determination. Go appeal on such a record.

Here it is #immigration twitter: “[an Immigration Judge’s] responsibility to identify, in advance of judgment, perceived inconsistencies[] is not tantamount to a duty to assist the counseled asylum applicant in putting forward an affirmative asylum claim in the first place.”

Ok! So let look at the inconsistencies that doomed the asylum applicant in Matter of I-Y-M:
Inconsistency No. 1: asylum seeker testified that he had received an alternative military service accommodation in '07 & '08 ending his service w no rank, or
rank = to a private. ...

but military id doc "showed that he had been promoted to 'senior soldier' during that time." When the DHS attorney asked him to explain this inconsistency, the applicant stated he was unaware of the rank change.
IJ: inconsistent, U must be lying
BIA: reasonable & correct

Inconsistency no. 2: asylum applicant testified that after he was injured in Aug 2014, he obtained medical treatment in an outpatient clinic for 2 months, but he changed his testimony on cross-examination to state that he had only been treated for 5 weeks, ending in Sept 2014.

medical document said that the applicant was treated until October 3, 2014. When the DHS attorney asked him to explain this inconsistency, the applicant testified that this was the length of time recommended for treatment, but he
ended treatment early.
IJ: inconsistent
BIA: yep.

Now I read it up to here and I was hmmm we in deep ... but then in the next few paragraphs thinks went ... well you tell me.

BIA said those 2 inconsistency are a big deal but this is not all that supported the negative credibility determination. It was also based on implausibility.

IJ found credibility was "further undermined" coz his written statement "failed to mention his travel to Hungary, which allegedly occurred only a day or 2 after he suffered extensive injuries. [&] did not testify on direct that he went to Hungary to obtain a false passport."

BIA: "The applicant’s explanation for the absence of this information was vague. []Additionally, the applicant provided no explanation for how an Interpol warrant was issued against him." Ahhh the infamous 'red notices' that are not warrants but who is counting ...

But wait, there is more! Don't forget corroboration, BIA says.

IJ also found that appl didnt provide sufficient corroborating evidence to overcome lack of credibility but
* IJ discounted the medical doc and military ID

* gave no wight to testimony of expert

Applicant should have provided doc of attending church & copy of police complaint

The absurdity of 'negative credibility' determinations as in this case where asylum seeker had counsel, documents, and provided an expert witness gives you a glimpse on why so few asylum cases are successful. Almost everyone in MPP has no counsel, no docs, no understanding ...

... of what the whole legal process is about nor what is the burden of proof. Ppl have no chance. Decisions like this one will stay on the books well after #MPP is gone. Asylum law will never be the same. END/