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Excerpted From: Liz Bradley and Hillary Farber, Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference, 36 Georgetown Immigration Law Journal 515 (Winter, 2022) (320 Footnotes) (Full Document)


BradleyAndFarberThe COVID-19 pandemic launched a technology proliferation that has forever changed our lives and our institutions. The pandemic forced us to attain proficiency, if not fluency, in technology that can beam us into a remote classroom, a work meeting, a doctor's appointment, and even a courtroom. Although the story of our post-pandemic world is still unwritten, we know intuitively that when there is a return to 'normalcy,’ there are aspects of our pre-COVID society that will not return to the way they were. Our technology pivot also provides us with an opportunity to reconsider some of the assumptions that underpin the rules, laws, and procedures that govern our institutions to ensure that they too adapt to our changing reality.

During the pandemic, courthouses around the country shuttered their doors to in-person proceedings and embraced video conferencing technology. Courts issued orders and amended rules about what types of cases would be heard, how the public would be able to access the hearings, the platforms used to effectuate the proceedings, and tolled certain deadlines and statutes of limitations. Courts strived to balance procedural due process guarantees with the imperative that the courts continue to function. One common concern among criminal courts was the reluctance to conduct evidentiary hearings virtually. Notwithstanding circumstances where criminal defendants assented to virtual hearings, many courts struggled with whether to continue criminal trials and evidentiary hearings until courtrooms reopened to in-person hearings, citing the Confrontation Clause and America's long-held belief that in-person hearings and face-to-face communication are essential to assess demeanor and ensure the accuracy and fairness of the proceedings.

Immigration courts began using Video Teleconferencing (VTC) in removal proceedings in select jurisdictions long before the global pandemic. In 1996, Congress authorized immigration courts to use VTC in lieu of in-person hearings as they wished, even for evidentiary hearings, without needing to obtain consent from the parties. Roll out of VTC was initially sporadic and largely focused on detained courts. But by 2019, one in six hearings were conducted over VTC. As the pandemic closed schools, offices, and courts around the country, immigration judges significantly increased their use of VTC to adjudicate cases, including claims for asylum, withholding of removal, and protections under the Convention Against Torture (CAT). In early March 2020, the Executive Office for Immigration Review (EOIR) issued the first of many policy memorandums giving guidance on how to adjudicate hearings during the COVID-19 outbreak. Specifically, EOIR Policy Memorandum (PM) 20-10 heralded VTC as a “proven success” and encouraged its use “to the maximum extent practicable,” especially for immigrants in detention. In November 2020, EOIR announced a policy to further expand the use of VTC in immigration hearings, commending VTC as “beneficial to both the immigration courts and the [noncitizen] respondent.” In January 2022, due to rising COVID-19 infection rates, EOIR issued a nationwide order that all hearings be conducted via telephone or video for the month, with limited exceptions.

As courts have increased reliance on video technology, academics, social scientists, and practitioners have amplified their warnings about the ways in which video conferencing can affect perception and participation among those involved in the proceedings. Empirical data confirms that video can distort both how we communicate and how we understand others. Studies on the use of video teleconferencing in immigration proceedings have found that detained respondents who appear at their removal proceedings remotely via a video screen are overall more likely to be deported than detained in-person litigants, lifting the veil of efficiency to reveal the ill effects of virtual hearings. One aspect of concern, and the topic of this paper, is immigration judges' ability to accurately assess a respondent's credibility through VTC.

In immigration court, claims for international humanitarian protections-- asylum, withholding of removal, and protections under the CAT--often turn on whether the applicant is found credible, or believable. By their very nature, claims for humanitarian protections involve individuals who have fled their homes due to fears of persecution or torture. But country instability, treacherous journeys, physical distance, scarcity of resources, and lack of counsel mean that many of these claims cannot be corroborated, nor refuted, by documentary evidence. So immigration judges are often left with the task of determining whether the applicant is telling the truth and thus eligible for protection based on testimony alone. Immigration judges are given extraordinary deference in making credibility findings, which they can base on factors such as an applicant's demeanor, candor, responsiveness, inherent plausibility, and any inconsistencies, inaccuracies, or falsehoods in testimony. Assessments of demeanor outward appearance, look, and behavior--are given particular deference. This deference is grounded on the American legal tradition's belief that assessing demeanor is an accurate way to ascertain the truth and the assumption that trial judges are in the best position to assess demeanor because they observe the applicant in person during live testimony, while the appellate body reviews only the lifeless pages of the written record. Do these assumptions contemplate the challenges inherent in video communication? Are judges hampered in assessing credibility in a culturally competent way through the use of VTC?

This Article examines how VTC impacts demeanor assessments when making credibility determinations in asylum, withholding of removal, and CAT claims and urges us to rethink our deference to these findings in our new virtual world. In Part I, we explore the expansion of VTC technology in immigration courts and some of the attendant benefits. In Part II, we discuss the legal framework that puts credibility at center stage in asylum, withholding of removal, and CAT cases and gives immigration judges almost unreviewable authority to make adverse credibility findings based on demeanor. In Part III, we examine the social science that shows why demeanor-based credibility assessments in immigration removal proceedings are inherently unreliable. In Part IV, we posit that using VTC for any evidentiary hearing where credibility is a determining factor exacerbates the already tenuous relationship between demeanor and truthfulness. In Part V, we explain why current agency policies and legal remedies are insufficient to safeguard against fallible demeanor findings in VTC hearings. Part VI offers recommendations for moving forward. We propose an immediate prohibition on demeanor-based adverse credibility findings in hearings conducted by VTC and urge the United States to join the international community in dropping demeanor as a credibility criterion in all immigration cases. Additional recommendations include requiring a party's consent for virtual merits hearings, increasing transparency and accuracy in EOIR data collection, and recording VTC hearings to facilitate accountability and appellate review.

The significant investment in resources and promises of greater judicial efficiency ensures the continuation of remote hearings in a post-COVID society. But in our technology pivot, we cannot overlook how video teleconferencing can affect perception and depress engagement among participants, which can lead to inaccurate credibility determinations. Adapting our laws and practices to reflect the reality of virtual hearings will allow us to embrace some of the benefits of technology while increasing confidence in the fairness and reliability of our immigration courts.

[. . .]

The pandemic has been and still is a test of our resiliency and adaptability in the face of tragedy and unchartered technological engagement. As we struggle to return to “normalcy,” we have the opportunity to consider how VTC impacts cases involving international humanitarian protections, where an immigration judge's ability to accurately gauge an applicant's demeanor and credibility can have life-or-death consequences. The assumptions that underpin the extraordinary deference afforded to U.S. immigration judges' assessments of an applicant's demeanor are incongruous with the realities of virtual hearings. Demeanor assessments, even in in-person hearings, are fallible and unreliable. 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.

Visiting Assistant Practice Professor of Law, Transnational Legal Clinic, University of Pennsylvania Carey Law School.

Professor of Law, University of Massachusetts School of Law.

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