The Vulnerability of Asylum Adjudications to Subconscious Cultural Biases: Demanding American Narrative Norms

By Schroeder, Jeanette L. | Boston University Law Review, January 1, 2017 | Go to article overview

The Vulnerability of Asylum Adjudications to Subconscious Cultural Biases: Demanding American Narrative Norms


Schroeder, Jeanette L., Boston University Law Review


INTRODUCTION

This Note explores how various factors unique to asylum adjudications- (1)substantial obstacles to obtaining corroborating evidence of persecution; (2) the high stakes of credibility determinations; (3) vague statutory guidelines for making such determinations; and (4) exceedingly limited judicial review- combine to make particular groups of asylum applicants distinctly susceptible to subconscious cultural biases.

Although there is a growing body of research on the ways implicit biases impact judges' and juries' factual determinations,1 few articles have sought to address how cultural narrative norms influence judicial expectations of "credible" testimony. Such scholarship is increasingly essential in the aftermath of the REAL ID Act of 2005 ("REAL ID Act"),2 which created a substantial risk that not what asylum applicants say but rather the way in which they say it will definitively determine their right to remain in the United States.

The primary purpose of this Note is to shed light on a subject matter that is often neglected despite academia's recent fascination with implicit racism, sexism, and homophobia.3 We must remember that such issues are merely the tip of the iceberg. countless forms of subconscious biases, both independently and in conjunction, currently impede judicial objectivity in modern American jurisprudence. Acknowledging that we will likely never be able to entirely eliminate such biases, this Note proposes various ways to address one group of subconscious cultural biases-those stemming from culturally imposed narrative expectations.

I. BACKGROUND

"Asylum is an immigration benefit [granted by the U.S. Department of Homeland Security4] that allows certain foreign nationals who fear persecution to remain lawfully in the [United States] indefinitely."5 In addition to providing protection from forcible deportation, for many asylum is a pathway to U.S. citizenship.6

Yet the road to asylum is not an easy one. Asylum applicants face numerous obstacles to obtaining a legal grant of asylum. They are forced to navigate a complex legal system and to satisfy an exceedingly high burden of proof.7 At the same time, many applicants must undergo immigration proceedings without any legal representation. Nationally, 14.6% of asylum seekers are unrepresented.8 Women with children are disproportionately unrepresented in immigration courts, with more than 70% lacking legal representation.9 In the highly subjective system of asylum adjudications, such representation can often mean the difference between legal protection and forcible deportation, because unrepresented litigants are often left without any assistance to navigate complex cultural expectations that subconsciously impact immigration judges' credibility determinations.10 In fact, a study of more than 26,000 immigration cases throughout the United States involving women with children found that 98.5% of individuals without representation were forcibly deported while only 73.7% of individuals with representation were forcibly deported.11 Yet, because the Supreme Court has explicitly held that deportation is not "punitive,"12 despite recognizing that "deportation is a drastic measure and at times the equivalent of banishment or exile,"13 asylum applicants cannot invoke the Sixth Amendment right to effective assistance of counsel, which is reserved for only criminal proceedings.14

In addition to the difficulties of navigating the American legal system as a foreigner, often without representation, many asylum applicants face substantial obstacles to obtaining corroborating evidence of their persecution. The systemic lack of documentation evidencing incidents of persecution coupled with vague statutory guidelines for making credibility determinations in the absence of such evidence make asylum adjudications susceptible to subconscious biases.15 Biases stemming from immigration judges' and asylum applicants' differing perceptions of time, tendencies regarding explicit and implicit communication, and observational norms can adversely impact such determinations. …

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