The Ring of Truth: Demeanor and Due Process in U.S. Asylum Law

Abstract

Whether to believe an asylum applicant is one of the most critical issues in asylum law. Many competing interests are in direct conflict: the need to protect people from persecution, the government’s desire to control entry into the country as an exercise of sovereignty, the extreme difficulty of gathering documentary proof of one’s persecution, and the government’s concerns about allowing security threats into the country. It is essential to strike the right balance between these conflicting priorities. The conflict between national welfare and public safety against individual liberty and personal security is not, however, a matter of mere policy preferences. The Constitution demands that whenever government action threatens to deprive an individual of their liberty, that individual must be provided due process. Unfortunately, policymakers have adopted the rhetoric of “security” and cultivated a climate of fear to justify increasing the burdens on refugees to prove their eligibility for asylum. In 2005, the REAL ID Act, claiming to be an effort to maintain security and identify asylum fraud, dictated the factors immigration judges must consider in determining whether an asylum applicant’s testimony is credible and therefore able to support their claim for asylum. Among these factors is the applicant’s “demeanor.”

This Note argues that the consideration of demeanor is a violation of asylum applicants’ due process rights. Though demeanor evidence is pervasive throughout the American legal system, its validity has been called into question by modern psychological studies, and its use has been sharply criticized by legal scholars. Furthermore, unique aspects of asylum adjudication make the use of demeanor especially damaging. Because corroborating evidence is frequently unavailable to asylum applicants, their claims typically turn on their own testimony. To have that testimony found not credible will almost certainly mean denial of the asylum claim. The extraordinary breadth of ways in which demeanor can be assessed, combined with the lack of meaningful judicial review of demeanor determinations, gives immigration judges overwhelming discretion to deny claims for asylum.