Immigration: The Effect of Slyusar v. Holder on the “Incredible” REAL ID Act

What was the exact date of your first hair cut?  If you cannot remember and you are an asylum applicant, you may have just earned yourself a deportation order back to the country you were fleeing.  Under the REAL ID Act of 2005 (Act), Immigration Judges (IJ) have an “incredible” amount of power and latitude when making credibility determinations.  With the implementation of the Act, any inconsistency in an applicant’s story is reason enough to earn a deportation order, whether or not the inconsistency went to the heart of the claim for asylum.  An adverse credibility finding is the death blow to the applicant’s claims for asylum and any relief from removal, preventing such claims from being considered on their merits.

A recent decision coming out of the Sixth Circuit Court of Appeals has recognized the troubling precedent that has been set regarding credibility determinations.  The Court in Slyusar v. Holder spent a significant amount of time cautioning the IJs in their future credibility findings.  The Court acknowledged the sweeping power the Act gives to the IJs, but placed special emphasis on the Court’s prior precedent in Ren v. Holder.  The Court in Ren v. Holder noted that the power of the IJ is not the equivalent of a “blank check” enabling the IJ to, “insulate an adverse credibility determination from the Circuit’s review of the reasonableness of that determination.”

The Slyusar Court expressed further concern for precedent that even if an omission or inaccuracy is categorized as de minimis, it may still support an IJ’s adverse credibility finding.  By way of example, the Court observed multiple adverse credibility determinations that are often based on external factors not indicative of truthfulness.  These decisions seem to be in conflict with the actual language of the Act requiring that IJ’s make credibility determinations considering the totality of the circumstances, and all other relevant factors.

The Sixth Circuit appears to be moving to a softer landing on judging an asylum applicant’s credibility.  The final words of the Slyusar Court are used to urge the exercise of due care in evaluating inconsistencies when reaching a credibility determination.  Attorneys and those who work with asylum applicants should keep an eye on future asylum opinions coming out of the Sixth Circuit.  If the trend follows Slyusar, we should be on our way to correcting some of the absurdity of the Act.

Sara Lowry, an attorney in our Livonia office, concentrates her practice on municipal law, litigation, and immigration law.  She may be reached at (734) 261-2400 or slowry@cmda-law.com.