Making Your Trial Record: The Importance of Dates

In a recent unpublished decision, Singh v. Sessions, No. 16-161 (2d Cir. June 12, 2017), the U.S. Court of Appeals for the Second Circuit upheld an Immigration Judge’s adverse credibility finding based on the respondent’s wavering as to whether he was born in 1976 or 1977.  The Court concluded that the IJ reasonably found such discrepancy regarding such a basic fact “‘called into question [his] actual identity’ as well as ‘the veracity of the entire claim.’”

Reading this decision caused me to think of my start in private practice nearly 30 years ago.  Most of my clients were from Afghanistan.  One of the most difficult parts of preparing their asylum applications was determining dates - not only the dates relating to events critical to their claim (i.e. when they were arrested; when they fled), but even the most basic info: the dates of their birth.  Looking at my clients’ official government-issued Afghan identity card (tazkira), the date of birth would be entered as, e.g., “was approximately eight years old in 1982.”  As the official government record was a ballpark estimate, it was impossible to determine a precise birthdate; the task was further complicated by the fact that Afghanistan uses a completely different calendar from the west (for the record, one must add two months, 21 days and 621 years to convert the Afghan date to the western calendar).  As both INS and EOIR required a specific day and month of birth, I would enter “January 1.”  When I once attended a Master Calendar hearing on January 2, the INS trial attorney joked that I must have been extremely busy the previous day, celebrating all of my clients’ birthdays.  More than twenty years later, I was surprised to learn from a December 31, 2013 Washington Post article (“In Afghanistan, January 1 is everyone’s birthday” https://www.washingtonpost.com/world/in-afghanistan-its-everyones-birthday/2013/12/31/81c18700-7224-11e3-bc6b-712d770c3715_story.html?utm_term=.6fbc22055bee) that such practice had become a national phenomenon.  The Post article attributed the problem to the lack of a system for registering births during the country’s decades-long civil war, and noted that a similar problem existed in other war-torn countries, including Vietnam, Somalia, and Sudan.  

Thus, the application of the principle approved in Singh v. Sessions , i.e. that an asylum applicant’s confusion about the “basic fact” of his date of birth could be relied on to undermine the veracity of his/her entire claim, would have resulted in most of my Afghan clients being incorrectly found incredible and denied asylum.  For example, one of the Afghans cited in the Washington Post article stated that he was unsure of his real birthday, adding “I think it was sometime in the spring.”  The Second Circuit would apparently find it reasonable based on such an answer to question the individual’s identity, as well as his overall credibility.

Other factors also impact a respondent’s ability to recall dates.  The most universal problem was summarized by attorney Jason Dzubow on his excellent blog The Asylumist:  “Most events are not tied to a particular date in our memories.”  http://www.asylumist.com/2012/01/09/credibility-determinations-are-not-credible/

Dzubow uses as an example a car accident he experienced; he remembers many details, but not the date.  Testing this premise on myself, I know the date I was married, but although I remember other details clearly, I cannot remember the date I first met my wife, or even the date we became engaged.  I was once mugged at knifepoint; not only can’t I remember the day or month it occurred, I could only guess as to the year.  As Dzubow points out, the respondent is not actually testifying in court to the date he actually remembers that an event occurred.  Instead, the respondent is testifying to a date he or she memorized after calculating (or maybe estimating) it in his or her lawyers’ office.  Dzubow thus justly concludes that the ability to regurgitate such dates in immigration court “may be a decent test of the alien’s memory, but it is of little value in assessing his credibility.”

I will add my own observation to that, from my years as an immigration judge: the aforementioned testing of the respondent’s ability to memorize dates may actually hurt the assessment of his or her credibility.  The REAL ID Act allows triers of fact to base a credibility determination in part “on the demeanor, candor, or responsiveness of the applicant or witness.”  In my decisions, my credibility assessment would sometimes include a demeanor observation that “the respondent appeared to be reciting from a memorized script, and not from actual experience.”  I’ve seen similar language in reviewing the decisions of other IJs on appeal.  Where an asylum applicant is forced to recount specific memorized dates multiple times in the course of their hearing, they may have to pause while trying to recall the date in question, often while assuming a facial expression that leads the immigration judge to make the above-cited credibility observation.  Furthermore, where the respondent is honestly testifying to traumatic experiences, PTSD can act to hamper the recall of dates.  A long pause while a traumatized applicant is struggling to recall a date may support a finding by the immigration judge that the respondent “was at times unresponsive.”

Also, realize that in failing to remember the dates of our car accident and mugging, both Dzubow and I are educated professionals, living in a very date-oriented society, working in a very date-oriented profession.  In western culture, one is expected to know their own date of birth and of marriage; the dates of birth of our spouses, children, parents, and other close friends and relatives.  We are expected to know the year we graduated from high school, college, and if applicable, graduate school.  Would we remember any of these dates if we lived in societies in which dates are not treated with the same importance?  Or if we were farmers or sheepherders as opposed to lawyers?

So what strategies should a practitioner use to address these problems?  The issues that may have contributed to your client’s difficulties in recalling dates cannot be successfully argued or documented for the first time on appeal to the BIA.  Board members commonly respond to the raising of a new issue on appeal by citing Matter of Jiminez, 21 I&N Dec. 567, 570 n. 2 (BIA 1996) to conclude that the issue, having not been raised before nor ruled on by the immigration judge, is not properly before the Board.  The standard response to the submission of new evidence on appeal is that as an appellate body, the Board’s function is to review, not create, a record.

It is therefore important to address this issue by creating a record while still before the immigration judge.  You will first have to determine to what extent the written application for asylum and attached statement should rely on specific dates.  Although we generally believe that the more detail that is included in the written application, the better the likelihood of establishing credibility, this rule will not hold true if the respondent cannot recall the dates while testifying.  In preparing the application, it is therefore important to take the time to get to know your client’s capabilities regarding dates.  If they cannot consistently recall the specific date while recounting the claim in your office, how do they describe when an event occurred?  Can they consistently recall that something happened, i.e., two years before they left their country?  Two months after an election, cease-fire, or invasion?  During the planting season?  During Ramadan?

If, for example, your client consistently recalls that an event occurred at the midway point of Ramadan, two years before they departed their country, calculating that to a specific date and then writing that date in your client’s statement will not be helpful if your client cannot then remember the date you came up with.  I would instead suggest writing the statement just as your client is capable of describing it, i.e. “RIght around the midway point of Ramadan, two years before I left my country, I was attacked…”).  Then provide documentation to the immigration judge as to the dates on which Ramadan occurred that year, and as to the date the respondent departed his country.  See if you can obtain documentation (i.e. articles; a statement from a country expert) that this would be a common way to communicate a date in the respondent’s community.  Or have the respondent evaluated by a psychologist to see if there is a psychological reason (including PTSD) that is impeding your client’s ability to recall dates.  

While some immigration judges may not be persuaded by this approach, you will have created a record that will allow you to renew your arguments on appeal to the BIA and, if necessary, the circuit court.

Copyright 2017 Jeffrey S. Chase.  All Rights Reserved.

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