Under pressure to turn away noncitizens who fabricate religious affiliation to improve their chances of gaining asylum, immigration judges are known to ask asylum seekers doctrinal questions about their purported religions to assess their overall credibility. Immigration judges administer these “religious tests” with broad statutory authority to make credibility determinations and without meaningful review by the Board of Immigration Appeals or the federal Courts of Appeals. Although “religious tests” are currently allowed in immigration court, they are strictly forbidden in federal court because of an Establishment Clause principle called the “religious question doctrine,” which forbids government tribunals from weighing in on intrafaith doctrinal disputes or holding claimants’ beliefs and practices to judicial standards of orthodoxy. This Note highlights the difference in how religious tests are treated in these two adjudicative contexts and argues that for both constitutional and institutional reasons—that is, because of the Establishment Clause’s mandates and the government’s incompetence in adjudicating intimate issues of personal identity—appellate courts should forbid religious testing in asylum proceedings just as they do in federal courtrooms. To the extent that the government has a legitimate interest in preventing so-called “religious imposters” from gaining asylum, immigration judges can further that interest by gauging the sincerity and not the orthodoxy of applicants’ beliefs, just as federal judges do.
LawReview
