Gauging Credibility in Immigration Proceedings : Immaterial Inconsistencies, Demeanor, and the Rule of Reason

Credibility is a determinative factor in many of the immigration cases adjudicated every year (and, each year, the federal immigration agency adjudicates hundreds of thousands of cases). Given the numbers of affected immigrants and the stakes involved, it is essential that the legislature, agency, and courts employ a well-grounded framework for assessing credibility. In a previous article, I analyzed the then recently enacted REAL ID Act credibility amendments to the Immigration and Nationality Act. This article builds on the previous analysis by discussing the rules and guiding principles recently established by the federal courts of appeals that now govern the adjudication of credibility determinations under the REAL ID Act in certain jurisdictions. Specifically, precedential decisions in the federal courts of appeals have focused on the incorporation of a rule of reason test into credibility determinations, the role that "trivial" inconsistencies play in credibility determinations, and the importance of demeanor in an assessment of credibility. The purpose of addressing these rules and guiding principles is threefold. The first goal is to examine whether they are congruent with the REAL ID Act specifically, and credibility determinations generally. Second, in providing an objective assessment, this article seeks to aid immigration adjudicators and reviewing bodies, either by explaining further the implications of rules that have already been established in a jurisdiction, or by answering the question of whether and how to employ them in jurisdictions that have not yet adopted them. Lastly, this article will highlight some of the issues regarding credibility determinations that apply, to a certain extent, to all agency proceedings where credibility is at issue, and even to those outside the agency context. The express credibility findings required of immigration judges provide a unique window into the "black box" of the decision-making process that often surrounds the credibility assessments of triers of fact