Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference

57 Pages Posted: 25 May 2022 Last revised: 18 Aug 2022

See all articles by Liz Bradley

Liz Bradley

University of Pennsylvania Carey Law School

Hillary B. Farber

University of Massachusetts School of Law at Dartmouth

Date Written: May 18, 2022

Abstract

The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video “to the maximum extent practicable.” In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences.

This Article takes a deep dive into the law and social science regarding demeanor-based credibility assessments and examines the potential impact of VTC on the adjudication of asylum, withholding of removal, and Convention Against Torture (CAT) claims. With empirical and doctrinal grounding, it recommends a prohibition on adverse credibility findings based on demeanor for hearings conducted via video. The assumptions that underpin the extraordinary deference afforded to immigration judges’ demeanor assessments are incongruous with the realities of virtual hearings. Demeanor is an unreliable metric for credibility, even for in-person hearings. Video distorts how we interact and further strains the tenuous relationship between demeanor and truthfulness. The current legal framework is ill-suited to safeguard against erroneous demeanor findings. A prohibition on demeanor-based adverse credibility findings for hearings conducted via VTC would embrace the benefits of our technological advancements while instilling greater confidence in the fair adjudication of humanitarian protection claims.

Keywords: Immigration courts, asylum claims, refugees, deportation, international humanitarian law, remote hearings, video teleconferences, nonverbal & cross-cultural communication, demeanor, credibility, fair & impartial adjudication

Suggested Citation

Bradley, Liz and Farber, Hillary B., Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference (May 18, 2022). Georgetown Immigration Law Journal, Vol. 36, p. 515, 2022, U of Penn Law School, Public Law Research Paper No. 22-25, Available at SSRN: https://ssrn.com/abstract=4117796

Liz Bradley (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Hillary B. Farber

University of Massachusetts School of Law at Dartmouth ( email )

333 Faunce Corner Road
North Dartmouth, MA 02747-1252
United States
508-985-1140 (Phone)

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