The Reliability of Airport Statements in Removal Proceedings

In August 2016 I organized and moderated the mandatory international religious freedom training panel at the immigration judges’ legal training conference in Washington, D.C.  One of the panelists from the U.S. Commission on International Religious Freedom (“USCIRF”) informed me of a just-published report she had co-authored.

The report, titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, is the follow-up to a 2005 study by USCIRF of the treatment of arriving asylum seekers in their interactions with the various components of DHS and the Department of Justice involved in the expedited removal process.  What jumped out at me from the report was the first key recommendation to EOIR: “Retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

The new report referenced the Commission’s 2005 findings, which it described as “alarming.”  The earlier study found that “although they resemble verbatim transcripts, the I-867 sworn statements” taken from arrivees by agents of DHS’s Customs and Border Patrol (“CBP”) component “were neither verbatim nor reliable, often indicating that information was conveyed when in fact it was not and sometimes including answers to questions that were never asked.  Yet immigration judges often used these unreliable documents against asylum seekers when adjudicating their cases.”

The 2016 report found similar problems with the airport statements taken a decade later.  The study found the use of identical answers by CBP agents in filling out the form I-867 “transcript,” including clearly erroneous answers (i.e. a male applicant purportedly being asked, and answering, whether he was pregnant, and a four year old child purportedly stating that he came to the U.S. to work).  For the record, USCIRF is a bipartisan organ of the federal government.  So this is a government-issued report making these findings.

The U.S. Court of Appeals for the Second Circuit has long recognized the problems inherent in the reliability of airport statements.  In Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004), the Second Circuit held that “a record of the interview that merely summarizes or paraphrases the alien’s statements is inherently less reliable than a verbatim account or transcript.”  The court determined that the airport statement in that case bore “hallmarks of reliability, as it is typewritten, signed by Ramseachire, and initialed on each page.  The record also indicates that he was given the opportunity to make corrections to the transcription.”

But was that truly the case?  The USCIRF study (the first of which was published a year after the Ramsameachire decision) shows that the Second Circuit’s reliance may have been misplaced.  The USCIRF researchers found instances in which the statement was not read back; when asked, a CBP agent stated “that he only reads back the contents if the interviewee requests it because it takes too long, and that the interviewee initialing each page only indicates that s/he received a copy of that page.”  

As noted in the USCIRF study, the problems with airport statements go beyond merely summarizing or paraphrasing, to include actual misstatements and omissions.  But the I-867 statements as prepared by the CBP agents give the appearance of being verbatim transcripts, and further claim to contain multiple safeguards to guarantee their accuracy which, pursuant to the findings of the USCIRF studies, may not have actually been employed.  And based upon the appearance of those safeguards, immigration judges have relied on the contents of these statements to reach adverse credibility findings that result in the denial of asylum.  And as in Ramseachire, many of those credibility findings are being affirmed on appeal.

This is not to say that all airport statements are unreliable.  But the point is that, as in Ramseachire, courts see something that looks like a verbatim transcript, see additional signs that safeguards were employed to ensure accuracy, and as a result, afford the document more evidentiary weight than it might actually deserve.  Under such circumstances, an immigration judge might reasonably rely on an airport statement purporting that the respondent had stated he came to the U.S. to work when in fact, he or she said no such thing.  And the judge might discredit the respondent’s denial of such statement when the words are recorded in a seemingly verbatim transcript bearing the respondent’s signature and initials which says it was read back to him and found accurate.

Attorneys and immigration judges should therefore be aware of the report and its findings.  The link to the report is:  https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf

Copyright 2017 Jeffrey S. Chase.  All rights reserved.