Credibility v. Incredulity: the case forever dismissed, and yet never closed

In Dias’ article in the Feb. 2021 edition of Mother Jones magazine (https://www.motherjones.com/politics/2021/02/the-almost-unbelievable-tortures-of-steven-tendo/), we find the biography of one Steven Tendo; — a sort of male Anastasia; — portrayed as the index-case of an immensely corrupt and unforgiving system of rules governing the admission of refugees. As portrayed by Dias, the immigrations’-courts are known to put the refugees virtually on trial, before a not impartial board of judges: expected, as the journalist says, “to tell their stories consistently, never overlooking details, or volunteering too much information, while still [appearing] unassuming and inoffensive… The way someone sits or stands, how nervous they may appear, how responsive they are, or the pace of their speech can all be used against them. In effect, this has made it easier for immigration judges to deny cases based on [imagined] credibility”.

The injustice of such a demand, goes almost without saying. Even a confirmed citizen with no criminal record is nervous in the presence of authority; and few people, unless specially trained (as among lawyers, authors, scientists, and performers), can “tell their stories consistently, never overlooking details”, at any less than the longest notice. To expect such consistency from refugees, in reciting their most painful and terrible sufferings, and then (as is usually done) to disbelieve and punish them for a ‘smooth’, ‘studied’, ‘practiced’, ‘too pat’, ‘rehearsed’, ‘quick’, ‘ready’; — in other words, for a too consistent answer; — is at best immoral, and at worst illogical: it does not itself consist, to demand consistency and swift reply, and then punish both as signs of dishonesty. To demand, moreover, a refugee to imaginarily re-enact the greatest horrors of its life, as proof of its worthiness to seek refuge, is again contrary to all considerations of charity, generosity, and the reputation of the nation; the raisons d’etre of asylum itself.

The entire process, as described in cases like this (supra), would not look out of place in a police state: it is, in effect, an adoption of the police-court as a model for all legal proceedings, without regard for distinctions between the types of case. As a result, the refugee becomes the defendant, interrogated without mercy (and often, without adequate defense) by skeptical judges, with its guilt, in most cases, a foregone conclusion. Even physical evidence, whether in the form of documents in hand, witnesses at one’s beck and call, or scars on the body, is dismissed without hesitation.

These facts are familiar to anyone acquainted with the American, and indeed with most Occidental juridical processes; there is no common explanatory factor among them, except for the constant allusion (now as in the days of Tolstoy) to ‘the system’, which all obey. This leads an observer to the hypothesis that the rules of legal procedure, and indeed the education and training of lawyers, judges, legislators, jurists, counsels, etc., are formulated to deny more claims than they accept and punish more than they absolve, for reasons now obsolete. There is no official explanation of this, known to the public; but the thrust, or bias of the questions typically raised in court, seems to be toward proving the applicant false, and attributing its desire for entry to nameless, nefarious purposes.

If this hypothesis be proven correct, it raises grave concerns for the state of legal proceedings in the Western Hemisphere, and may require, though no great revolution, at least a series of modifications in the process itself, with the ultimate end of a simpler, juster form of law.