Immigration judges have broad discretion in their cases, which includes determining whether a person applying for asylum in the United States demonstrates adequate credibility in their demeanor as they explain their reasons for requesting asylum.
In a review of a Board of Immigration Appeals (BIA) decision, the Fifth Circuit Court of Appeals cited “Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference,” co-authored by University of Pennsylvania Carey Law School Visiting Assistant Practice Professor Liz Bradley when it formally recognized the ambiguities that come with such discretion and questioned whether the practice is “perhaps unfounded” in light of contemporary research.
Ndudzi v. Garland
In Ndudzi v. Garland, the Fifth Circuit vacated and remanded a BIA decision denying Mariana Ndudzi’s application for asylum.
Ndudzi, who is a citizen and native of Angola, argued that the BIA erred in finding her not credible – a finding that was made in part due to Ndudzi’s “agitated” demeanor throughout the proceedings, including when she was asked about “being separated from her children” for more than a year.
In its review of this finding, the Fifth Circuit noted that it is standard practice to defer to an immigration judge’s determination of an applicant’s demeanor. Yet, as the opinion reads, “[s]uch deference is perhaps unfounded…given the wealth of contemporary psychological research suggesting that subjective perception of a witness’ demeanor is an unreliable indicator of the witness’ veracity.”
In support of this statement, the Fifth Circuit cites several academic articles, including Bradley’s article, which she co-authored with University of Massachusetts School of Law Professor Hillary B. Farber:
In relevant part, the authors write that “[d]ecades of research by social scientists have shown that the nonverbal ‘cues’ commonly associated with deception are based on false assumptions.” Moreover, “cross-cultural misunderstandings of nonverbal cues” can arise when there are cultural differences between an asylee and an Immigration Judge. This potential for misunderstanding is acute when testimony involves language barriers and requires an interpreter.
Ultimately, the Fifth Circuit’s opinion turned on an amalgam of factors, and Ndudzi’s demeanor was not the deciding element of the decision.
“We’re hopeful that the Fifth Circuit’s recognition of the unreliability of demeanor assessments marks a shift in how courts review asylum seekers’ credibility,” Bradley said. “Demeanor assessments are premised on outdated and biased assumptions and should have no place in modern courtrooms.”
Bradley and Farber presented their research at “International Workshops: Changing Landscapes in Immigration Detention,” an international and interdisciplinary immigration conference in Spain.