Revista Temas de Derecho Constitucional

148 Revista Temas de Derecho Constitucional asylum for peace activists in particular. 5 It may be argued that Venezuelans who are politically opposed to the abuses of the Maduro regime may see themselves as acting in favor of peace and democracy. Nevertheless, the plight of Venezuelans seeking asylum is that they are likely be subject to several challenges with trying to access asylum, in part due to systemic dysfunction within the immigration system in the North, including: misapplication of the credibility standard, “credibility fatigue”, uneven evaluation of evidence, and a failure to recognize a nexus to a political opinion. This article reviews six recent asylum cases involving politically active Venezuelans who sought asylum in Canada or the United States to illuminate dilemmas in their case processing. The conclusion underscores the importance of proper oversight by federal appeals judges to correct arbitrary decision- making in asylum cases at the lower levels and uphold the accessibility of asylum as a peace mechanism, as well as recognizing the need for broader systemic reforms. Credibility Although the 1951 Conventionon the Status of Refugees does not address credibility, the majority of asylum claims are rejected based on a negative credibility assessment. The first case was decided by the Refugee Appeal Division of the Immigration and Refugee Board of Canada, TB8-05173, on June 21, 2019. In this case, the appellant worked for a government agency and attended two opposition protests. He alleged that a group of colectivos attacked the protesters, including the appellant, choking and beating him severely- The appellant choose not to seek medical attention. One month later, he was attacked by two strangers who threatened to kill himand his family and warned himnot to criticize Maduro, or else leave Venezuela. He claimed to have received threatening phone calls and was subject to surveillance at work. Over five weeks after the attack, he fled to Carupano where he signed a political declaration and attended a political event. He then later fled to Canada. He requested asylum but was rejected for lack of credibility. The Refugee Board did not consider it plausible that the appellant would not seek medical assistance. They also did not find it credible that he did not change his cell phone after he began receiving threatening phone calls. He said that he needed the phone for work. The Refugee Board also discounted his choice to seek vacation leave from work when he went into hiding and then extend it went he arrived in Canada. The Refugee Board did not believe that he would be granted vacation time by an employer that had him under surveillance. The Refugee Board also questioned why he waited over five weeks to leave Caracas and why he participated in political activities in Carupano. The Appeals Judge disagreed with Refugee Board’s credibility findings, concluding that theRefugeeBoardhad engaged inarbitrary speculation. The Appeals judge underscored the presumption of truth required in asylum hearings and the danger of engaging in subjective assessments of what is rational behavior. 6 The judge further explained that 5 On constitutional asylum, see Mila Versteeg, The Political Economy of the Constitutional Right to Asylum, 102 CORNELL L. REV. 1219, 1318 (2017). 6 Citing Valtchev. v. Canada (Minister of Citizenship and Immigration), 2001 FCT6