In order to secure that most basic of human rights – physical security – asylum seekers within our borders must frequently defend against their deportation in contested court proceedings. Asylum seekers may testify on the stand for hours detailing the horrors they endured before arriving in the United States, often through an interpreter. A government prosecutor cross examines them and argues for their deportation. Frequently these cases end with the immigration judge denying asylum on the basis of a wildly subjective determination that the applicant is not “credible.” All too often the denial is based on minor perceived inconsistencies picked out of hours of detailed testimony about traumatic events the asylum seeker endured months or years earlier.
In a decision both compassionate and logical, the federal Court of Appeals for the Fourth Circuit has put the immigration court system on notice that this type of irresponsible decision making cannot stand. In the case of Faustin Mukadi Ilunga, a Congolese man who fled to the United States after his government imprisoned and tortured him, the Court called the immigration agency’s lower decision denying asylum “unsettling.” Mr. Ilunga and his attorneys have been arguing just that – for more than six years.
Mr. Ilunga arrived in the United States in 2008 and immediately informed an immigration official that he was seeking asylum, having fled his country for political reasons. Only months earlier he had escaped from a Congolese prison where he suffered stabbings and torture because of his involvement in the political opposition. Immigration officials detained Mr. Ilunga, and it was during his time in detention that a CAIR Coalition representative first met him. CAIR Coalition secured pro bono representation for Mr. Ilunga through the law firm of Cooley LLP, and Cooley’s tremendous legal team has fought tirelessly on his behalf ever since.
Mr. Ilunga’s story is a case study in the injustices asylum seekers face in our immigration system. Despite a tremendous amount of evidence corroborating his story and hours of exhaustive and consistent evidence, the Immigration Judge denied Mr. Ilunga’s asylum claim because she found his testimony inconsistent with regard to three minor details and because she found his demeanor to raise “concerns regarding plausibility and vagueness.” Mr. Ilunga and his attorneys knew that the Immigration Judge was seeing inconsistencies where none existed. They also knew that she was imposing her own personal biases on a man speaking through an interpreter about unimaginable episodes of torture and abuse. Mr. Ilunga and his attorneys appealed, but the Board of Immigration Appeals agreed with the Immigration Judge.
Years later we are grateful to the three judges on the Fourth Circuit Court of Appeals who have intervened and injected some humanity into the immigration decision-making apparatus. The Court discussed thoughtfully some of the most critical issues underlying asylum adjudications:
- The impact of trauma on memory and demeanor during testimony: Mr. Ilunga argued on appeal that it was normal to appear “uncomfortable” when testifying about one’s own history of torture and trauma, and that this appearance of discomfort should not have given the Immigration Judge a basis to doubt his credibility. The Board of Immigration Appeals disagreed. This disagreement, the Fourth Circuit said, “manifests a basic misunderstanding of the human condition.” The Court instructed immigration adjudicators to weigh the impact of trauma on memory and demeanor when considering an asylum applicant’s credibility. This recognition of the enduring and devastating impact traumatic experiences can have on memory and the psyche is momentous.
- The importance of translation errors and language-based misunderstandings in immigration court: The Court reminded immigration adjudicators that inconsistency in an asylum applicant’s testimony is not sufficient reason to doubt the applicant’s credibility if there is reason to believe that inconsistency stems from interpreter error or language-related misunderstandings. The Court went on to provide specific examples of evidence that might demonstrate incompetent translation in the lower court proceeding.
- The dangers of bias in immigration adjudication: The Court pointedly reminded immigration judges that they may not “cherry pick” facts from the record when making a determination regarding an asylum applicant’s credibility. Further, the Court reiterated that immigration judges cannot resort to mere “speculation and conjecture” when making determinations about whether a given piece of evidence supporting an asylum claim is reliable.
It is our hope that this decision will pave the way for more compassionate and just decision making in our immigration courts. And for Mr. Illunga, we hope safety is at long last within his reach. ***
The full decision in Mukadi Ilunga v. Holder, Case No. 13-2064, is available here.
CAIR Coalition applauds the legal team at Cooley LLP, now heading into their seventh year of representing Mr. Ilunga: Charles Charpentier; Dana Moss; Joshua Siegel; Maureen Alger; Erich Veitenheimer; Lori Mason; Sarah Talkovsky; and Bonnie Nelson. Their unflagging belief in their client in the face of a sometimes cruel system serves as an inspiration.
