Alleged Rape Victim Loses Asylum Appeal

In what may be a heartbreaking miscarriage of justice, last week a unanimous panel of the 9th Circuit Court of Appeals rejected an asylum appeal by a woman from Colombia, a lesbian, who claims to have been raped by military personnel in her home country.  As is frequently the case in these asylum appeals, the court issued a brief unpublished opinion that does not go into very much detail, and makes it difficult to judge whether this is a tragic miscarriage of justice or an appropriately skeptical rejection of an asylum petitioner's claim.  The case is Sierra-Cordona v. Holder, 2010 Westlaw 4629028 (9th Cir., Nov. 16, 2010).

The panel wrote that the Immigration Judge "determined that she was not credible.  Although Sierra-Cordona testified that she was raped by military men because she is a lesbian, she neglected to mention this incident in her initial interview with an asylum officer and in her application.  She only raised this claim a day before her hearing.  It is not clear from the record that her lawyer was responsible for omitting this rape incident.  While it is true that in some circumstances failure to disclose an instance of rape prior to an asylum hearing cannot alone support an adverse credibility finding, the BIA found the record as a whole undermines Sierra-Cordona's credibility.  The BIA noted the IJ identified and properly evaluated a number of inconsistencies and omissions in the record.  The evidence does not compel a contrary conclusion."

The court also noted that there was some confusion about which of two attorneys were representing the plaintiff during this asylum process, but that this was sorted out well before the asylum hearing, and found that the BIA did not abuse its discretion by denying her motion to reopen the case for more evidence.

Is this a case of somebody who was traumatized by a sexual assault by military personnel in her home country and then could not bring herself to speak openly about it to anybody, much less a strange government official conducting her preliminary asylum interview — possibly at the airport on her arrival in the US — until finally she became convinced that the only way to gain asylum would be to reveal this terrible secret  about which she felt great shame and stress?  In that case, it might well be understandable that she did not mention it to anybody until the eve of the hearing, and that her resulting testimony might exhibit inconsistencies with the prior record compiled in the case based on her statements at the initial and subsequent interviews.  The court's brief opinion does not go into any details about these circumstances, so it is really impossible to judge, but reading lots of these opinions over time suggests that it is possible that an error is being made here.

On the other hand, the IJ's who hear these cases encounter plenty of stories ginned up at the last minute in a desperate bid to win asylum in the U.S., and they are properly suspicious of such stories, especially when they might raise serious inconsistencies with a prior record compiled from statements given under oath.  It is difficult to judge. 

But one is grateful to Westlaw for publishing these officially "unpublished" opinions, making it possible to shine some light on the process.  It is a shame that the crushing numbers of appeals have led the circuit courts to institute summary proceedings and to produce brief, uninformative unofficially published decisions that may tend to keep the operation of this system out of public view.  Every now and then an investigative article surfaces in the press — a recent piece in The Nation pointed out the persistent problems of the lack of consistency in the asylum process — but the mass media are not doing much to keep the public informed about how the asylum process functions.

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