This is a very interesting case, especially from a European perspective. In EU asylum law, credibility must be assessed globally and individually, taking into account the applicant’s personal circumstances and the consistency of the core elements of the claim. A discrepancy concerning a collateral detail should not automatically undermine the entire account, particularly where allegations of political persecution and torture are involved.
The Tazo case raises a fundamental question that goes well beyond the individual proceedings: how much evidentiary weight should be given to a single inconsistency, especially one emerging during an initial border interview, when the consequences may be removal to a country where the applicant claims to have suffered persecution?
Your article offers a valuable opportunity for comparative reflection on the different approaches to credibility assessment in the U.S. and European asylum systems. Thank you for sharing it.
Thank you! In theory, in U.S. immigration law, in theory, credibility must be based upon the "totality of circumstances". From my naive perspective, that sounds fairly congruent with the EU's "globally and individually".
But that's just the theory. The reality, as this case shows, is that immigration judges have tremendous discretion to base credibility findings on pretty much whatever they want, and these days they're under a lot of pressure to issue adverse credibility findings.
I'm even seeing an almost unheard-of phenomenon, which is the government appealing *positive* credibility rulings from the judges -- and winning reversals.
Your observation about political pressure is particularly interesting from an Italian perspective. There seems to be an important institutional difference between our systems. In Italy, asylum appeals are decided by ordinary judges who belong to the judiciary and are institutionally separate from the executive branch. Government immigration policy cannot therefore translate into instructions to judges on how individual asylum cases should be decided.
As I understand it, the institutional position of U.S. Immigration Judges is quite different, since the Immigration Courts are part of EOIR within the Department of Justice, even though Immigration Judges are required to exercise independent judgment in individual cases.
There is another difference that I find particularly interesting: in Europe we also have Article 8 of the European Convention on Human Rights, protecting private and family life, which can become relevant in immigration and removal cases independently of the classic refugee-law analysis. I would be interested to know what you consider the closest functional equivalent, if any, in U.S. immigration law.
Perhaps the most interesting comparative question is therefore not only how the U.S. and Europe assess credibility, but how the institutional position of the decision-maker and the different fundamental-rights frameworks affect the final protection afforded to the individual.
Yes, that's correct. In the U.S., both the first hearing (before an immigration judge) and the first appeal (before the Board of Immigration Appeals) happen within the Executive Branch, and can be heavily influenced by the sitting president. Historically EOIR had some institutional independence, but that's no longer the case; judges are being fired and replaced at unprecedented rates.
(In fact, our asylum approval rate traditionally hovered around ~45%. In the last year it's dropped to ~5% -- and that's for cases that actually reach adjudication.)
The second appeal *is* to an independent circuit court -- an "Article III" court. But at that point, the standard of review becomes the limiting factor. The circuit court owes great deference to the decisions of the EOIR. Usually they review for "substantial evidence", which in practice means that most cases have to be upheld.
If I had to guess, at least in the immigration context, I think the closest the U.S. has to Article 8 would be the Fifth Amendment's due process protection. It applies to undocumented immigrants (at least at the moment; there's some debate) and it guarantees, for example the right to a lawyer (at your own expense) and to appeal a decision.
Just wrote about an asylum claim from Cameroon:
"So there we have it.
In Cameroon, Tazo was tortured for his political opinions.
He said a single, incorrect word, to a single CBP officer, on an irrelevant topic.
Because of that one word, Tazo’s asylum claim is denied and he is ordered deported back to Cameroon.
I hate credibility cases."
https://samsramblingss.substack.com/p/suburban-tragedy
This is a very interesting case, especially from a European perspective. In EU asylum law, credibility must be assessed globally and individually, taking into account the applicant’s personal circumstances and the consistency of the core elements of the claim. A discrepancy concerning a collateral detail should not automatically undermine the entire account, particularly where allegations of political persecution and torture are involved.
The Tazo case raises a fundamental question that goes well beyond the individual proceedings: how much evidentiary weight should be given to a single inconsistency, especially one emerging during an initial border interview, when the consequences may be removal to a country where the applicant claims to have suffered persecution?
Your article offers a valuable opportunity for comparative reflection on the different approaches to credibility assessment in the U.S. and European asylum systems. Thank you for sharing it.
Thank you! In theory, in U.S. immigration law, in theory, credibility must be based upon the "totality of circumstances". From my naive perspective, that sounds fairly congruent with the EU's "globally and individually".
But that's just the theory. The reality, as this case shows, is that immigration judges have tremendous discretion to base credibility findings on pretty much whatever they want, and these days they're under a lot of pressure to issue adverse credibility findings.
I'm even seeing an almost unheard-of phenomenon, which is the government appealing *positive* credibility rulings from the judges -- and winning reversals.
Your observation about political pressure is particularly interesting from an Italian perspective. There seems to be an important institutional difference between our systems. In Italy, asylum appeals are decided by ordinary judges who belong to the judiciary and are institutionally separate from the executive branch. Government immigration policy cannot therefore translate into instructions to judges on how individual asylum cases should be decided.
As I understand it, the institutional position of U.S. Immigration Judges is quite different, since the Immigration Courts are part of EOIR within the Department of Justice, even though Immigration Judges are required to exercise independent judgment in individual cases.
There is another difference that I find particularly interesting: in Europe we also have Article 8 of the European Convention on Human Rights, protecting private and family life, which can become relevant in immigration and removal cases independently of the classic refugee-law analysis. I would be interested to know what you consider the closest functional equivalent, if any, in U.S. immigration law.
Perhaps the most interesting comparative question is therefore not only how the U.S. and Europe assess credibility, but how the institutional position of the decision-maker and the different fundamental-rights frameworks affect the final protection afforded to the individual.
Yes, that's correct. In the U.S., both the first hearing (before an immigration judge) and the first appeal (before the Board of Immigration Appeals) happen within the Executive Branch, and can be heavily influenced by the sitting president. Historically EOIR had some institutional independence, but that's no longer the case; judges are being fired and replaced at unprecedented rates.
(In fact, our asylum approval rate traditionally hovered around ~45%. In the last year it's dropped to ~5% -- and that's for cases that actually reach adjudication.)
The second appeal *is* to an independent circuit court -- an "Article III" court. But at that point, the standard of review becomes the limiting factor. The circuit court owes great deference to the decisions of the EOIR. Usually they review for "substantial evidence", which in practice means that most cases have to be upheld.
If I had to guess, at least in the immigration context, I think the closest the U.S. has to Article 8 would be the Fifth Amendment's due process protection. It applies to undocumented immigrants (at least at the moment; there's some debate) and it guarantees, for example the right to a lawyer (at your own expense) and to appeal a decision.