Virtually incredible: rethinking deference to demeanor when assessing credibility in asylum cases conducted by video teleconference

• Author: Liz Bradley/Hillary Farber
• Position: Visiting Assistant Practice Professor of Law, Transnational Legal Clinic, University of Pennsylvania Carey Law School/Professor of Law, University of Massachusetts School of Law
• Pages: 515-570

ARTICLES

VIRTUALLY INCREDIBLE: RETHINKING

DEFERENCE TO DEMEANOR WHEN ASSESSING

CREDIBILITY IN ASYLUM CASES CONDUCTED

BY VIDEO TELECONFERENCE

LIZ BRADLEY* & HILLARY FARBER**

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 de-

meanor-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 extraor-

dinary 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

* Visiting Assistant Practice Professor of Law, Transnational Legal Clinic, University of

Pennsylvania Carey Law School. © 2022, Liz Bradley & Hillary Farber.

** Professor of Law, University of Massachusetts School of Law.

515

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 bene-

fits of our technological advancements while instilling greater confidence in

the fair adjudication of humanitarian protection claims.

TABLE OF CONTENTS

INTRODUCTION ......................................... 517

I. USE OF VIDEO TELECONFERENCE IN IMMIGRATION COURT . . . . . . . . 521

II. LEGAL FRAMEWORK FOR DEMEANOR-BASED CREDIBILITY FINDINGS IN

ASYLUM, WITHHOLDING OF REMOVAL, AND CONVENTION AGAINST

TORTURE CASES .................................... 526

III. DEMEANOR IS AN UNRELIABLE METRIC FOR CREDIBILITY

ASSESSMENTS, PARTICULARLY IN IMMIGRATION PROCEEDINGS . . . . . . 534

A. Empirical Studies Show Demeanor Assessments are

Unreliable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534

B. Cross-Cultural Misunderstandings Are Endemic to

Immigration Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 536

C. Demeanor Assessments Get Lost in Translation . . . . . . . . 539

D. Impacts of Trauma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541

IV. VTC EXACERBATES THE TENUOUS RELATIONSHIP BETWEEN

DEMEANOR AND TRUTHFULNESS . . . . . . . . . . . . . . . . . . . . . . . . . 543

A. Studies Find That Immigrants with VTC Hearings Are More

Likely to Be Deported ........................... 544

B. Eye Contact Is a Vital Part of Assessing Truthfulness in

Western Culture and Impossible to Achieve over VTC. . . . 546

C. Body Language Cues Are Unavailable, Perceptions Are

Distorted over VTC. . . . . . . . . . . . . . . . . . . . . . . . . . . . 547

D. Remoteness and the Carceral Setting Diminish the

Formality of the Proceeding, Reduce Engagement, Trust,

and Rapport .................................. 551

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E. Technical Malfunctions Are Pervasive and Cause a Loss of

Physical and Emotional Connectedness between

Respondent and Judge.......................... 554

F. Remote Interpretation Is Not Equivalent to In-Person

Interpretation ................................ 556

V. CURRENT AGENCY POLICIES AND LEGAL FRAMEWORKS ARE

INSUFFICIENT TO SAFEGUARD AGAINST FALLIBLE DEMEANOR FINDINGS

IN VTC HEARINGS .................................. 558

A. EOIR Data on the Impact of VTC Is Inconsistent,

Incomplete, and Unreliable....................... 559

B. Appellate Challenges to Adverse Demeanor Findings in

VTC Hearings Acknowledge Problems but Provide Little

Remedy ..................................... 563

VI. PROPOSALS FOR REFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569

INTRODUCTION

The COVID-19 pandemic launched a technology proliferation that has for-

ever changed our lives and our institutions.

1

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 court-

room. 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.

2

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.

1. See generally Jason Zweig, The Overnight Business Boom That Took a Century; Why a Global

Pandemic Transformed Videocalling from a Technology Most People Didn’t Like to the Technology

Everybody Had to Have, WALL ST. J. (Nov. 13, 2020), https://perma.cc/QBF9-L8BS (“For decades,

dozens of companies kept trying to foist videocalling onto an unready and unwilling public. Then, like a

bolt from the blue, the coronavirus thrust nearly everyone into isolation. Videocalling went from a

technology most people didn’t like or want to the technology everybody had to have.”).

2. How COVID-19 Has Pushed Companies over the Technology Tipping Point—and Transformed

Business Forever, MCKINSEY & COMPANY (Oct. 2020), https://perma.cc/XRC2-X6WA; Rauf Arif, In the

Post Covid-19 World, Zoom Is Here to Stay, FORBES (Feb. 26, 2021), https://perma.cc/BNV7-QPVU;

Kara Swisher, Tech in the Post Pandemic World, N.Y. TIMES (Apr. 20, 2021), https://perma.cc/VVJ8-

YBHF.

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