Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference
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.
Immigration courts, asylum claims, refugees, deportation, international humanitarian law, remote hearings, video teleconferences, nonverbal & cross-cultural communication, demeanor, credibility, fair & impartial adjudication
Georgetown Immigration Law Journal
Bradley, Liz and Farber, Hillary, "Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference" (2022). Faculty Scholarship at Penn Carey Law. 2832.
Immigration Law Commons, International and Intercultural Communication Commons, International Humanitarian Law Commons, Judges Commons, Law and Society Commons, Migration Studies Commons, Other Legal Studies Commons
36 Geo. Immigr. L.J. 515 (2022)