Second Circuit Casts Doubt on Reliability of Border Interviews

The Second Circuit has again cast doubt on the reliability of border interviews in a credibility determination. The court reiterated that “a border interview record is “‘inherently less reliable’ if (1) the record ‘merely summarizes or paraphrases the [noncitizen’s] statements’ rather than include ‘a verbatim account or transcript,” (2) “the questions asked are not designed to elicit the details of an asylum claim, or the . . . officer fails to ask follow-up questions that would aid the [noncitizen] in developing his or her account,’ (3) ‘the [noncitizen] appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country,’ or (4) ‘the [noncitizen’s] answers to the questions posed suggest that the [noncitizen] did not understand English or the translations provided by the interpreter.’” An IJ is required to consider these factors before relying on a border interview for an adverse credibility determination if the record indicates the factors may be relevant.

The full text of Pomavilla-Zaruma v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/doc/20-3230_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/hilite/

BIA Addresses Proper Role of Border and Airport Interview

The Board of Immigration Appeals (BIA) has determined that a judge may take into account statements made during border and airport interviews when assessing an applicant's credibility.  However, the BIA recognized certain limitations on the reliability of these interviews.  "The import of the case law regarding these DHS interviews is that, as a preliminary issue, it is necessary to consider whether there are persuasive reasons to doubt the alien’s understanding of the interviewer’s questions.  The most basic consideration is whether an interpreter was provided if one was requested.  If the alien’s statements from the interview are being contrasted with his or her subsequent testimony, it is important to have a detailed and reliable recitation of the questions and answers from the interview.  Further, to support a finding that the statements are actually inconsistent, the questions asked during the interview should be designed “to elicit the details of an asylum claim,” and the interviewer should ask follow-up questions to develop the alien’s account."  Despite recognizing these limitations, the BIA determined that under the REAL ID Act, there is a presumption that interviews of this nature are proper to consider in an adverse credibility determination.

The full text of Matter of J-C-H-F- can be found here:

https://www.justice.gov/eoir/page/file/1036126/download