INTRODUCTION AND SUMMARY OF THE ARGUMENT

The Ninth Circuit correctly held that, when both the immigration judge and the Board of Immigration Appeals (“BIA”) decline to find that an asylum applicant is non-credible, appellate courts cannot—for the first time on appeal—make an adverse credibility finding themselves. Appellate courts must accept that testimony as credible. As Respondents explain, this holding accords with both the asylum statute and bedrock principles of administrative law. Amici write here to underscore why it is so important that appellate courts refrain from stepping into the shoes of an immigration judge and make a credibility determination in the first instance.

In asylum cases, credibility determinations are both essential and fraught. On the one side, asylum seekers are often fleeing the specter of persecution or torture, including horrors such as domestic violence, sexual abuse, and human trafficking. In U.S. immigration courts half a world away, non-testimonial evidence may be hard to come by—so the most important evidence will often be the asylum seekers’ own words about what they experienced.

On the other side, however, science teaches that traumatic experiences—which are often what trigger asylum applications in the first place—can have longlasting effects on how survivors recount their experiences, as asylum seekers must do in asylum interviews and hearings. The survivor’s demeanor may be detached, nervous, or hesitant. The survivor may have gaps in memory or may be too ashamed, or afraid, to provide a detailed account. Or the survivor’s narrative may shift over time, as the survivor comes to terms with horrific experiences. An appellate judge reviewing a cold transcript, untrained in trauma, can mistake these effects for red flags that the survivor is not credible. But in fact, far from undermining credibility, these effects are consistent with suffering the kind of persecution that asylum exists to protect against.

Immigration judges are far better placed than appellate judges to evaluate an asylum seeker’s testimony and place the effects of trauma into the context of the overall record. Not only do immigration judges observe an asylum seeker first hand, but during their time on the bench, they often acquire significant experience with asylum cases and the trauma that such cases often implicate. Specialized training also exists to help immigration judges understand how to account for trauma in assessing witnesses. When that training is properly administered and deployed, immigration judges can learn to recognize the difference between lay stereotypes about credibility and what credibility actually looks like when a trauma survivor testifies in an asylum case (or indeed, any matter adjudicated by an immigration judge).

Appellate courts lack these critical tools. They have not seen the applicants, nor can they assess the tenor of the applicants’ testimony in the context of the whole record. And appellate courts do not receive any training as scaffolding against mistaking trauma’s artifacts for lack of credibility. If an appellate court attempts to assess an applicant’s credibility when the immigration judge has not explicitly done so on the record, the court may be faced with a case in which the applicant lacks traditional indicia of credible testimony—for example, because the applicant testified inconsistently about details like dates or the number of attackers at a specific event. And on a cold record, the appellate court will be unable to reliably weigh whether such inconsistencies indicate non-credible testimony, or whether these inconsistencies are foreseeable side effects of trauma.

For these reasons, Congress allocated to appellate courts the responsibility to review adverse credibility determinations, but it placed the role of making those determinations in the first instance with immigration judges, who can draw on both their experience with asylum cases—cases often accompanied by trauma—and their ability to directly hear the testimony. That is not to say that immigration judges always get it right. Appellate courts review adverse credibility determinations under established appellate standards and sometimes properly reverse adverse credibility determinations that fail to pass muster under those standards. But just as it is important that appellate judges faithfully carry out their duty to review credibility determinations, it is critical that appellate judges refrain from stepping into immigration judges’ shoes by making initial credibility determinations on a cold record.

Amici thus respectfully submit that the correct approach is the one the Ninth Circuit adopted: When neither the immigration judge nor the BIA has made a non-credibility finding, reviewing courts should not do so. Instead, they should treat the applicant’s testimony as credible. That does not mean the applicant will win— because even credible testimony may be insufficient to carry the applicant’s burden to show error in the denial of asylum. But it does mean that appellate judges must stick to their assigned role and decline to make their own credibility judgments when Congress vested the responsibility for doing so elsewhere.

Summary

The Ninth Circuit correctly ruled that higher courts cannot decide for the first time that an asylum applicant is not credible if the immigration judge and the Board of Immigration Appeals (BIA) have not made such a finding. Higher courts must accept the testimony as truthful. This aligns with both asylum law and basic administrative principles. It is crucial for higher courts to avoid making initial credibility decisions.

Credibility judgments in asylum cases are both vital and complex. Asylum seekers often flee severe persecution, including domestic violence, sexual abuse, and human trafficking. In U.S. immigration courts, non-testimonial evidence can be scarce, making the applicant's own account of their experiences the most important evidence.

However, scientific understanding shows that traumatic experiences, which often lead to asylum applications, can profoundly affect how survivors recount events. A survivor might appear distant, nervous, or hesitant. Memory gaps may exist, or the survivor might be too ashamed or afraid to give a detailed account. The narrative may also change over time as the survivor processes horrific experiences. An appellate judge, reviewing only written records and lacking trauma training, might misinterpret these effects as signs of dishonesty. In reality, these effects are consistent with the type of persecution that asylum law is designed to address, rather than undermining credibility.

Immigration judges are in a much better position than appellate judges to evaluate an asylum seeker's testimony and understand how trauma affects the overall record. Immigration judges observe applicants directly and often gain significant experience with asylum cases and related trauma during their time on the bench. Specialized training is available to help immigration judges understand how to consider trauma when assessing witnesses. With proper training, immigration judges can distinguish between common beliefs about credibility and what credibility truly looks like when a trauma survivor testifies in an asylum case or any matter handled by an immigration judge.

Appellate courts lack these essential tools. They do not see the applicants or hear their testimony directly within the full context of the record. Appellate courts also do not receive training to prevent them from mistaking the effects of trauma for a lack of credibility. If an appellate court attempts to judge an applicant's credibility when the immigration judge has not explicitly done so, the court might encounter cases where the applicant lacks typical signs of credible testimony, such as inconsistent details about dates or the number of attackers. When reviewing only a written record, the appellate court cannot reliably determine if such inconsistencies indicate a lack of credibility or are foreseeable effects of trauma.

For these reasons, Congress assigned appellate courts the responsibility to review adverse credibility findings, but placed the initial decision-making authority with immigration judges. These judges can use their experience with asylum cases, which often involve trauma, and their ability to hear testimony directly. This does not mean immigration judges are always correct. Appellate courts review adverse credibility determinations using established standards and sometimes properly reverse findings that do not meet those standards. However, just as it is important for appellate judges to fulfill their duty to review credibility determinations, it is crucial that they refrain from making initial credibility judgments based solely on written records.

Therefore, the correct approach is the one adopted by the Ninth Circuit: If neither the immigration judge nor the BIA has found an applicant not credible, reviewing courts should not do so. Instead, they should treat the applicant's testimony as credible. This does not guarantee the applicant will win, as even credible testimony might be insufficient to prove an error in the asylum denial. However, it ensures that appellate judges adhere to their designated role and do not make their own credibility judgments when Congress has assigned that responsibility elsewhere.

Introduction and Summary of the Argument

The Ninth Circuit Court of Appeals correctly decided that higher courts cannot decide if an asylum applicant is not believable if the immigration judge and the Board of Immigration Appeals (BIA) have not already done so. These higher courts must accept the applicant's testimony as true. This decision aligns with asylum laws and fundamental administrative law principles. This document emphasizes why it is crucial for appeals courts to avoid making initial credibility judgments, a role meant for immigration judges.

In asylum cases, judging whether someone is telling the truth is both vital and complicated. Asylum seekers are often escaping threats of persecution or torture, including severe issues like domestic violence, sexual abuse, and human trafficking. In U.S. immigration courts, obtaining evidence other than testimony can be difficult. Therefore, an applicant's own words about their experiences often become the most important evidence.

However, scientific understanding shows that traumatic experiences, which often lead to asylum applications, can significantly affect how survivors recall their experiences. Asylum seekers must recount these experiences during interviews and hearings. A survivor might appear distant, anxious, or hesitant. They may have memory gaps or feel too ashamed or afraid to give a detailed account. Their story might also change over time as they process horrific events. An appeals judge, who reviews written records without trauma training, might mistakenly see these behaviors as signs that the survivor is not credible. In reality, these effects often support credibility, showing the kind of suffering that asylum laws are designed to address.

Immigration judges are better equipped than appeals judges to evaluate an asylum seeker's testimony and understand how trauma affects the overall case record. Immigration judges directly observe asylum seekers and often gain significant experience with asylum cases and the trauma involved during their time on the bench. Special training is also available to help immigration judges understand how to consider trauma when assessing witnesses. When this training is properly used, immigration judges can learn to distinguish between common assumptions about credibility and what credibility actually looks like for a trauma survivor testifying in an asylum case.

Appeals courts lack these essential tools. They do not see the applicants directly and cannot fully assess the tone of the testimony within the context of the entire record. Appeals courts also do not receive training to prevent them from misinterpreting signs of trauma as a lack of credibility. If an appeals court tries to judge an applicant's credibility when the immigration judge has not explicitly done so, the court might encounter a case where the applicant's testimony lacks traditional markers of credibility. For example, the applicant might have inconsistent details about dates or the number of attackers. When only reviewing a written record, the appeals court cannot reliably determine if these inconsistencies indicate a lack of credibility or if they are predictable effects of trauma.

For these reasons, Congress gave appeals courts the job of reviewing adverse credibility decisions but assigned the initial responsibility for making those decisions to immigration judges. Immigration judges can use their experience with asylum cases, which often involve trauma, and their ability to hear testimony directly. This does not mean immigration judges are always correct. Appeals courts review adverse credibility decisions using established standards and sometimes rightfully reverse decisions that do not meet those standards. However, just as appeals judges must faithfully review credibility determinations, it is equally important that they avoid taking on the role of immigration judges by making initial credibility judgments based on written records.

Therefore, it is respectfully submitted that the Ninth Circuit's approach is correct: If neither the immigration judge nor the BIA has found an applicant not credible, reviewing courts should not do so. Instead, they should treat the applicant's testimony as credible. This does not guarantee the applicant will win, as even credible testimony might not be enough to prove an error in an asylum denial. However, it ensures that appeals judges stick to their assigned role and refrain from making their own credibility judgments when Congress has given that responsibility to others.

Summary

The Ninth Circuit Court of Appeals made the correct decision. It ruled that higher courts cannot decide for the first time that an asylum seeker is not truthful if the immigration judge and the Board of Immigration Appeals (BIA) have not already done so. Higher courts must accept the testimony as true. This decision aligns with asylum laws and administrative legal principles. It is important for higher courts not to overstep their role and make initial judgments about someone's truthfulness.

Deciding if an asylum seeker is telling the truth is vital but also complicated. Many asylum seekers are escaping persecution, torture, domestic violence, sexual abuse, or human trafficking. Often, there is little physical evidence in U.S. immigration courts, making the asylum seeker's own story the most important evidence.

However, scientific research shows that traumatic experiences, which are often why people seek asylum, can affect how survivors remember and tell their stories. A survivor might seem distant, anxious, or hesitant. They might have memory gaps or be too ashamed or afraid to give a full account. Their story might also change over time as they process their horrific experiences. An appellate judge, reviewing a written record without trauma training, might see these behaviors as signs of dishonesty. In reality, these are often consistent with someone who has suffered the kind of persecution that asylum laws are meant to protect against.

Immigration judges are in a much better position than appellate judges to assess an asylum seeker's testimony and understand how trauma fits into the overall record. Immigration judges see the asylum seeker directly and often gain extensive experience with asylum cases and trauma over time. Special training helps immigration judges understand how to consider trauma when evaluating witnesses. With proper training, immigration judges can learn to distinguish between common assumptions about truthfulness and what truthfulness actually looks like in a trauma survivor's asylum case.

Appellate courts lack these crucial tools. They do not observe the applicants or experience the way they deliver their testimony within the complete context of the record. Also, appellate courts do not receive training to help them avoid mistaking signs of trauma for a lack of truthfulness. If an appellate court tries to assess an applicant's truthfulness when the immigration judge has not clearly done so, the court might face a case where the applicant's testimony lacks traditional signs of being truthful. For example, the applicant might have been inconsistent about dates or the number of attackers. Reviewing only a written record, the appellate court cannot reliably determine if such inconsistencies mean the testimony is untrue or if they are expected effects of trauma.

For these reasons, Congress gave appellate courts the job of reviewing decisions about truthfulness but assigned the initial responsibility for making those decisions to immigration judges. Immigration judges can use their experience with asylum cases, which often involve trauma, and their ability to hear testimony directly. This does not mean immigration judges are always right. Appellate courts review decisions about truthfulness using established standards and sometimes correctly overturn decisions that do not meet those standards. But just as it is important for appellate judges to review these decisions, it is crucial that they do not take on the role of immigration judges by making initial truthfulness determinations based only on written records.

Therefore, it is respectfully suggested that the Ninth Circuit's approach is correct: If neither the immigration judge nor the BIA has found an applicant not to be truthful, higher courts should not do so. Instead, they should accept the applicant's testimony as truthful. This does not guarantee the applicant will win, because even truthful testimony might not be enough to prove an error in the denial of asylum. However, it means appellate judges must stick to their assigned role and avoid making their own judgments about truthfulness when Congress has given that responsibility to others.

Summary

When people ask for asylum, they tell their stories about why they left their home country. Sometimes, these stories are the most important proof they have. Judges who hear these stories first are called immigration judges. They decide if the person's story is believable. Higher courts, called appellate courts, should not make this decision for the first time.

Why Believability Matters

People seeking asylum often ran away from very bad things, like violence or abuse. It can be hard for them to get other proof. So, what they say is very important.

However, bad experiences can make it hard for people to remember and tell their stories clearly. They might seem nervous, forget parts, or change small details over time. This does not mean they are lying. It can be a normal part of having gone through something very hard. Judges who only read a paper record might think these things mean the person is not telling the truth.

Who Should Decide Believability

Immigration judges are better at deciding if a person's story is believable. They see and hear the person speak. They also learn about how trauma can affect how people tell their stories. This helps them understand if a person's story is true, even if it has some small changes.

Appellate courts do not see the person. They only read papers. They do not get special training on how trauma affects people's stories. If they try to decide if a story is believable, they might make a mistake. They might think small differences in a story mean someone is not telling the truth, when it's really because of trauma.

The Role of Each Court

Congress made rules about who decides if a story is believable. Immigration judges decide first. Appellate courts then check if the immigration judge's decision was fair. Appellate courts should not make their own decision about if a story is believable if the first judge did not say it was not true. They should trust that the story is true. This does not mean the person will always get asylum, but it means the courts are following the rules.