Posted on June 25, 2021

The Supreme Court in the first week of June 2021 ruled about a presumption of credibility in asylum cases pending appeal. The court held that reviewing courts cannot treat an asylum seeker’s testimony as credible unless an immigration judge first finds the applicant credible. The presumption of credibility may arise in some appeals before the Board of Immigration Appeals (BIA). The “rebuttable presumption of credibility on appeal” applies absent an explicit credibility determination.

For asylum applications filed after May 11, 2005 a court must make a determination of the applicant’s credibility. An immigration judge does not presume that the testimony of the asylum applicant he is about to hear is credible, i.e. is being trustworthy or believable. The immigration judge listens to the applicant’s testimony and reviews provided evidence and then decides if the applicant’s testimony is credible, plausible and trustworthy. So, in asylum cases there is no presumption of credibility.

After the immigration judge issues unfavorable decision, the applicant can appeal this decision to the Board of Immigration Appeals (BIA). If the immigration judge failed to make an explicit “adverse credibility determination” during a hearing, noncitizens shall “have a rebuttable presumption of credibility” if they appeal the immigration judge’s decision to the BIA. It means that if the immigration judge does not clearly make a credibility finding, the noncitizen’s testimony is presumed to be true when the case is on appeal.

However, cases pending before any federal court do not constitute “appeals.” There is only one appeal in asylum cases, and it is from the immigration court to the BIA. Subsequent judicial review takes place not by appeal, but by means of a “petition for review,” which the law describes as “the sole and exclusive means for judicial review of an order of removal.” Thus, the federal courts cannot treat an asylum seeker’s testimony as credible when the immigration court’s decision is silent about credibility. The credibility finding is vested with an immigration judge. In asylum cases, the immigration judge is responsible for making credibility determinations as trier-of-fact.