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Overcoming Inconsistencies Where an Asylum Applicant Has Suffered Traumatic Abuse

On Behalf of | Jul 12, 2017 | Uncategorized

People come to the United States for a variety of reasons, one of which is to flee persecution and seek protection through an asylum application. The very nature of fleeing persecution means that the applicant has endured harm that naturally impacts their psyche in devastating ways. That is because what constitutes persecution for asylum purposes are events of trauma, and the consequences of trauma are broad, severe, and long-lasting. Survivors of trauma do not cognitively function or behave in the same way as those who have not survived trauma. It is therefore common for individuals to make false statements to immigration authorities at the border and even have inconsistencies throughout their account of abuse.

Such was the case for our client, “Z,” who fled Ecuador under the most horrendous of circumstances. As a child in Ecuador, Z was sexually assaulted by three different men. After spending some time in the United States, she returned to Ecuador to reunite with her children and met a man she thought would be the father figure her children needed and the devoted partner she deserved. Tragically, and quickly after she moved her children into his home, he revealed his abusive nature through unfounded jealousy, verbal lashings, rape, and physical assaults. At one point, he even locked her in the home during the day when he was at work to prevent her from going anywhere. After a brutal assault, Z made the painful choice to flee Ecuador and seek protection in the United States.

Her nightmare, unfortunately, was not over because during the journey to the border with coyotes, the coyotes not only starved her but also drugged and raped her. Therefore, when she arrived at the border and was apprehended by immigration authorities, she was terrified, tired, starving, and psychologically scared from her horrendous life experiences. She then made false statements to border patrol agents: she gave a false name, said she was from Guatemala, and said she had no fear but wanted to live and work in New York for two years. She admitted the truth shortly thereafter and received a credible fear interview (CFI), yet during the CFI she said that her abuser was physically violent only once.

We therefore knew that the case would have a significant challenge in addition to all the legal elements one must meet for asylum: Z had a credibility concern. In asylum cases, a judge is to make a threshold determination of credibility. In reaching that determination, he is to examine the record as a whole, and statements made at the border are documented and part of the record. Accordingly, false statements made at the border often lead a judge to question an applicant’s credibility. Likewise, inconsistencies in Affidavits and testimony regularly lead to a judge making an adverse credibility determination, thereby discounting the applicant’s fear and killing her asylum application.

The YMF team knew it was our responsibility to establish that a survivor of trauma does not react to situations in the same ways as someone who has never fled their own country to save their life. They also do not convey accounts of abuse in chronological order or even in logical order due to the realities of traumatic memories. We therefore dove deep into Z’s psychological issues, and she started working with a therapist who diagnosed her with PTSD and depression. She exhibited many symptoms of those conditions and even attempted suicide. For that, she took medication and saw her therapist every week. We gathered voluminous records confirming her conditions and the treatment she receives here in the United States. We also fully prepared Z for the types of questions she would be asked, and we encouraged her to not hide her emotions but rather to let them show and even admit during testimony to how the trauma impacted her mental condition and how talking about it made her feel.

Before we began testimony at her final hearing, the Judge and the attorney for the Department of Homeland Security (DHS) made it clear that they had issues with Z’s credibility. Our response was that while they were looking at Z’s false statements at the border as an indicator of dishonesty, the false statements were actually indicative of both her trauma and her fear. It was her mental condition that led to the false statements, and it was the past abuse she endured that led to such a tragic mental condition.  

Z demonstrated great strength as she testified through tears about her life in Ecuador. Her suffering was clearly visible. She also answered questions from YMF counsel, counsel for DHS, and even from the Judge about her false statements at the border and during her CFI. Z explained that she did not assert a fear because she did not trust that she would be protected; that she claimed to be Guatemalan because if she was going to be forced to leave the United States, she wanted to go anywhere but Ecuador; and that she asserted there was only one instance of physical abuse because it was difficult relaying the extent of her ordeal to a stranger. Yet even during testimony, Z’s account of harm contained inconsistencies between direct and cross-examination, and she struggled to answer the question being asked because the memories came flooding back.  

After the attorney for DHS completed his cross-examination, he informed the Judge that credibility was a concern for him because of the inconsistencies during testimony and because of her false statements at the border. Yet the Judge made it clear that although in most similar cases, he would make an adverse credibility determination and deny the asylum application, he was convinced that Z was severely traumatized. That trauma, the Judge stated, was the explanation for her inconsistencies and false statements. He found her credible. The issue then became whether we met the burden of establishing all the elements for asylum, and DHS deferred to the Court and accepted the Judge’s grant.

The most significant takeaway from this case is that false statements and inconsistencies can be fatal to an asylum claim; however, it is crucial for attorneys to look outside the box and develop reasoned arguments to pre-empt that potential fatality. The way to do that is to work with clients and reinforce within them that there is no shame in the psychological suffering they endure after surviving persecution. In fact, receiving help for that suffering and documenting that help are necessary in cases like Z’s.

Traumatic experiences impact a person’s mental and even physical well-being. Memories of the trauma do not play in a survivor’s head like a recording; rather, memories are often fragmented and distorted. Memories of trauma are akin to puzzle pieces dumped out of a box, and a victim of trauma is able to put them together over time through trial and error, which is a painful process. The victim might remember one specific detail of abuse while other details of the same event blend together to form inconsistencies. That naturally impacts the way in which an asylum applicant testifies about the accounts of abuse and even talks about it at the border with immigration authorities. Another well-documented consequence of trauma is that the survivor has a skewed sense of safety and therefore lacks trust in many situations; thus, the trauma impacts their ability to immediately convey a fear to immigration authorities. Those consequences are exactly what can lead to an adverse credibility determination yet the explanation for them is what can save credibility. Z was willing to work with us as we probed into her mental health, and as a result, the Judge found her to be credible and granted her asylum application.

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