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CA7 Addresses Deceit in Asylum Claims; Upholds Adverse Credibility Finding

Mitondo v. Mukasey, (7th Cir. April 24, 2008)

So what gives the liar away? The major clue, apart from factual gaffes and inconsistencies that amount to confessions, is the amount of detail. When it comes to lying, the more information you give away, the greater your chances that some of it will come back to haunt you. As a result, liars tend to say less, to provide fewer details.

Petitioner, a citizen of the Democratic Republic of Congo (DRC), sought asylum based on his support for the Union for Democracy and Social Progress (UDPS), an opposition party. Petitioner claimed that he was arrested during a demonstration in May 2005, beaten, and subjected to forced labor. He claimed that priests helped him escape to Zambia where a second group of priests arranged for him to travel to Glasgow. In Glasgow he received a stolen French passport and entered the United States with a voucher to stay at a youth hostel in Chicago.

The immigration judge accepted that Petitioner was a member of the UDPS based on party records and affidavits from party officials. The IJ, however, was skeptical about Petitioner's story that he was arrested and beaten in May 2005 because the voucher he received in Glasgow was issued under the name "V. Mitondo" before he had escaped from his captors in the DRC. Petitioner was asked to explain this discrepancy and responded that he didn't know how the travel documents were arranged. The IJ granted a six-week continuance and Petitioner then testified that a person with the name Vital Mitondo had planned to travel to the United States, but had backed out. Petitioner's photo and had then replaced his in the false passport and he had been given his hostel voucher. The IJ was still skeptical and had the passport sent to a forensics lab which determined that the passport had not been altered with a photo substitution. The IJ then denied Petitioner's asylum application finding that Petitioner had lied to enter the United States on a false French passport and had also lied about the events of May 2005. The IJ identified the following three discrepancies: 1) the hostel voucher was issued before Petitioner claimed that he had met the priests, 2) Petitioner testified that he took over the travel documents from someone else which was inconsistent with his earlier testimony that he did not know how the travel documents were arranged, and 3) the forensic evidence undercut Petitioner's second story that his photo was added to the passport that was initially issued to someone else. The BIA affirmed the IJ's decision.

On review the Seventh Circuit held that it had jurisdiction to review Petitioner's claim even though he was placed in asylum only proceedings and no formal order of removal had been entered against him, citing Jimenez Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008).

With regard to the adverse credibility determination, Petitioner argued on appeal that the discrepancies identified by the IJ did not go to the heart of the asylum claim. The court noted that Petitioner's asylum claim was filed after the date of enactment of the REAL ID Act that this would be the first time the court would apply the new credibility provisions under the REAL ID Act. The court found that the statute abrogated decisions that focused on whether an inaccuracy or falsehood went to the heart of an asylum claim, citing INA §208(b)(1)(B)(iii). The court noted that asylum cases pose "thorny challenges in evaluating testimony" and that most claims could neither be confirmed nor refuted by documentary evidence.

The court rejected the theory that one can judge the honesty of an applicant by his demeanor, noting that this belief had been tested and rejected by social scientists. The court looked to several articles published by experts, notably Richard Wiseman, for guidance on how to determine when someone is lying. The court found that what gives liars away is the amount of detail they give. Quoting Wiseman, the court noted that liars tend to say less and to provide fewer details. They also tend to give fewer references about themselves and their feelings. When it comes to unimportant details, liars tend to demonstrate super power memories and often recall the smallest of details. The court stated that in an immigration case, an applicant who is repeating a story fed to him by handlers may be able to testify up to a point, but then run out of information at the place where the briefing stopped. The court noted that the IJ suspected this in Petitioner's case because at his first hearing Petitioner professed ignorance about his travel documents, and then recited a detailed story at his second hearing. The court found, as a result, that substantial evidence supported the IJ's adverse credibility finding.

The court held that INA §208(b)(1)(B)(iii) permits the fact finder to us the details of the applicant's story to evaluate the truth, but cautioned that an IJ may not make an irrational assumption, such as about how dictators subjugate their citizens, or how the society of a foreign nation operates, because these are subjects on which proof is available.

The petition for review was denied.

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Cite as AILA Doc. No. 08052173.

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