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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Interestingly, when we came in as new counsel the bulk of the trial was completed but both sides wanted some further testimony on the only issue in the case - specifically, Mr. Acosta's membership and participation in the Peruvian Army in the late 1980's during the internal conflict in Peru. The Department of Homeland Security was taking the position that Mr. Acosta should be barred from adjustment of status because he assisted in acts of torture, extrajudicial killing, and persecution of detainees who were members or suspected members of the Shining Path Communist Party of Peru. As Counsel for Mr. Acosta, it was our position that even if there was a persecutor bar to adjustment of status (there is not), Mr. Acosta's actions while in the military in Peru did not meet the requisite standard and, as a matter of discretion, he should not be barred from relief.
By way of background, Mr. Acosta joined the Peruvian military as a soldier in 1986. In 1987, he was promoted first to corporeal soldier and then later that year to sergeant. In 1988, he enrolled in military school for nursing and he graduated with the title of sub-officer in June 1989. However, by 1991 he decided to abandon the military. During his tenure in the military, Mr. Acosta did in fact work in the anti-terrorism section and he was ordered to guard and transport prisoners who were arrested by the intelligence service. The important distinction, though, is that Mr. Acosta himself never interrogated or tortured anyone. In fact, quite the opposite is true in that he protested transferring and guarding the prisoners on several occasions and he himself was the victim of punishment and abuse.
After reviewing years of transcripts and audio recordings of prior hearings and reviewing all of the evidence that had been submitted into the record over the past ten years, Ms. Xenides conducted two additional hearings where Mr. Acosta gave additional and very detailed, specific testimony about his involvement in the Peruvian military nearly 30 years ago. His memory is spectacular. The rest of the case came down to legal arguments and briefing, which lasted another year.
There is wide variation among the federal circuit courts' use of the persecutor bar which arguably stems from the disparate understandings of what level of intent and involvement with the persecutory act is required to trigger the bar under the Immigration and Nationality Act. Much of the case law developed in direct response to Nazi concentration camp guards in the wake of the Holocaust. The bright line "objective test" rules that were promulgated to address that very specific issue are increasingly less applicable in today's world, where the lines between persecutor and persecuted have blurred significantly. For example, child soldiers exemplify the reality of the outdated black and white moral simplicity that much of the case law suggests. The case law demonstrates a problematic, inconsistent application of the law in the absence of a unifying, guiding principle because some courts have been willing to label actors like a guard, a driver, a translator, or an escort as persecutors while other courts have found similar actors like a nurse, a guard, and a soldier to not be persecutors.
In reviewing the case law on the subject from several circuits, Ms. Xenides found that most relevant to Mr. Acosta's situation were cases where there was tangential participation and proximity to the persecutory act. Thus, the question for the court to decide was whether he assisted or otherwise participated in persecution and whether there was some nexus between his actions and the persecution of others. In a delightful twist, one of the cases that Ms. Xenides relied on for her legal argument was Balachova v. Mukasey, 547 F.3d 374, 386 (2d Cir. 2008), which is a case that YMF Partner Mr. Raymond Fasano prevailed on in the Second Circuit Court of Appeals in 2008. In Balachova, the Court of Appeals outlined a test to determine if a respondent meets the criteria to be considered a persecutor: the alien must have been involved in acts of persecution on account of the victim's protected status, the alien must have "assisted" the persecution (the court defined "assistance in persecution" as active conduct having direct consequences for the victims, not passive conduct tangential to the actual acts of oppression"), and, the alien must have sufficient knowledge that his actions may assist in persecution. Ms. Xenides successfully argued that Mr. Acosta did not meet any of these criteria.
Finally, in December 2016, over ten years after his removal proceedings began, the Immigration Judge rendered her decision in favor of Mr. Acosta, finding that the government's arguments were "unpersuasive" and granting Mr. Acosta his permanent residency in the United States. The Judge found that he testified credibly and that his conduct did not rise to the level of persecution so as to bring it under the grounds of inadmissibility for relief.
Mr. Acosta told Ms. Xenides he still turns on YMF's TV show every morning at 7am, but his wife jokingly told him he can stop watching now because his case was finally granted.]]>