Academic journal article
By Kagan, Michael
Vanderbilt Journal of Transnational Law , Vol. 43, No. 5
Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in RSD interviews indicates that RSD decision makers operated from several implicit assumptions about how to conduct religious-credibility assessment. Attempts to test the sincerity of religious faith via knowledge quizzes and inquiries into subjective beliefs have questionable logical justifications and are fraught with significant risks. By contrast, the most logically defensible approaches are based on the "eye of the persecutor" test, which focuses on observable triggers of persecution that put individuals at risk.
TABLE OF CONTENTS I. INTRODUCTION II. METHODOLOGY A. A Gap in Standards B. Defining the Question C. Analyzing Questions in Refugee Status Determination (RSD) D. Source of Interview Transcripts III. BACKGROUND ON ERITREAN PENTECOSTAL ASYLUM SEEKERS IN EGYPT A. Pentecostalism in East Africa B. Religious Repression in Eritrea C. Eritrean Refugee Claims Under International Refugee Law IV. QUESTIONS AND ASSUMPTIONS USED IN RELIGIOUS REFUGEE CASES IN CAIRO A. The Sincerity Test B. Neutral Questions on Religious Beliefs and Practices C. Religious Knowledge Quiz D. Theological Clarification or Dispute E. Weaknesses of the Sincerity Test F. The Eyes of the Persecutor Test G. Narrative Focus H. Open Versus Closed Questions V. TOWARD A MORE SYSTEMATIC APPROACH
Refugee status determination (RSD) is a special type of adjudication where officials from secular governments and the United Nations conduct formal hearings into religious faith. The interviews are lengthy and often intense, sometimes forcing people to recite Bible citations, to tell how and why they started going to one church instead of another, or to explain for the record why they pray in a particular way. These awkward scenes are not anticipated by any doctrinal dispute in refugee law. While substantial controversy has arisen about the international definition of a refugee, (1) few governments would contest that a person whose life or freedom is in danger because of her religious beliefs is a refugee under international law. Given the 1951 Refugee Convention's roots in the aftermath of the Nazi Holocaust, one might consider religious persecution cases to be prototypical refugee claims, especially when the persecution emanates from a central government.
Yet, when asylum seekers from Iran, China, Eritrea, and elsewhere file refugee claims based on their adherence to a banned religious movement or fear of punishment for conversion, they encounter significant practical challenges in winning refugee protection. When asylum adjudicators set out to decide whether to accept such refugee claims, they can quickly find themselves administering a process akin to a religious trial. In one case, for example, an American appellate court admonished a government attorney for "administer[ing] a sort of mini-catechism." (2) The source of this difficulty is not the substantive legal criteria for refugee status, but rather evidentiary difficulties in convincing adjudicators that asylum seekers are indeed members of a targeted religious group. Other writers call this the problem of the "religious imposter. …