Category Archives: Administrative Law

Assessing Credibility and Demeanor of Witnesses who Testify Through Interpreters

Judge Posner's decision in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007), which I mentioned yesterday has an interesting twist.

It's one of the great fetishes of US law that triers of fact, be they juries, judges, or administrative officials (including ALJs and Immigration Judges), deserve deference for their credibility determinations as they saw the live witness and the reviewer of the cold record did not. We don't question jury determinations — they're a black box, and juries are not called upon to give reasons for their decisions as to who to believe. The same is not true, however, of either judges or administrators. We expect them to issue reasoned opinions, and call foul when they fail to and when the reasons they give fail to hold water.

Indeed, one of the puzzles of administrative law is the so-called Universal Camera problem — suppose that an initial trier of fact reached one decision on the evidence but that the higher-ups in the agency appeals process reached an opposite conclusion. When the matter goes to the court of appeals, what weight should the court put on the trier's views? The issue implicates two competing values in administrative law: on the one hand the great deference to the front-line assessment of credibility, on the other hand the command in the Administrative Procedure Act that the agency, in deciding a matter, has full power to determine it (i.e. that its hands are not tied by lower-level officials). It's very hard for both of these to be true at once: if we give weight to demeanor then the front-line official has de facto power to limit the decisions of his/her bosses. If on the other hand we don't give any extra credence to the factual findings of the person who actually received the evidence, we've undermined an ancient principle of Anglo-American jurisprudence. We square that circle by saying that the trier's decision is part of the record that binds the agency. So it's free to make any decision, but its decision must be based on the record. The trier, we say only somewhat convincingly, hasn't bound the agency, he's just made part of the record.

Comes now Judge Posner in Apouviepseakoda to ask a really good question about credibility determinations by administrative agencies (and implicitly also by judges, although not juries):

The fact that she was testifying through an interpreter has a significance that my colleagues do not appreciate when they say that “The IJ spent 6 hours in a hearingroom, face to face, with Ms. Apouviepseakoda. We have never met her.” I take this to be an allusion to the common though not necessarily correct belief that being present when a witness testifies greatly assists a judge or juror in determining whether the witness is telling the truth. Even if so in general, it cannot be so when the witness is a foreigner testifying through an interpreter, especially if the judge cannot even hear the foreigner, but only the interpreter. Reading the facial expressions or body language of a foreigner for signs of lying is not a skill that either we or Judge Brahos possess.

We understand the dilemma facing immigration judges in asylum cases. The applicant for asylum normally bases his claim almost entirely on his own testimony, and it is extremely difficult for the judge to determine whether the testimony is accurate. Often it is given through a translator, and even if the applicant testifies in English, as a foreigner his demeanor will be difficult for the immigration judge to “read” as an aid to determining the applicant's credibility. Unfortunately, the Department of Homeland Security and the Justice Department, which share responsibility for processing asylum claims, have, so far as appears, failed to provide the immigration judges and the members of the Board of Immigration Appeals with any systematic guidance on the resolution of credibility issues in these cases. The departments have not conducted studies of patterns of true and false representations made by such applicants, of sources of corroboration and refutation, or of the actual consequences to asylum applicants who are denied asylum and removed to the country that they claim will persecute them. Without such systematic evidence (which the State Department's country reports on human rights violations, though useful, do not provide), immigration judges are likely to continue grasping at straws—minor contradictions that prove nothing, absence of documents that may in fact be unavailable in the applicant's country or to an asylum applicant, and patterns of behavior that would indeed be anomalous in the conditions prevailing in the United States but may not be in Third World countries—in an effort to avoid giving all asylum applicants a free pass. The departments seem committed to case by case adjudication in circumstances in which a lack of background knowledge denies the adjudicators the cultural competence required to make reliable determinations of credibility.

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Posted in Administrative Law, Law: Civil Procedure | 7 Comments

How Bad Does an Immigration Judge Have to be to Get Reversed?

As a series of court decisions from around the country have made clear, our immigration courts — the administrative bodies that, among other things, hear asylum applications — are a disgrace. The major cause is underfunding, requiring the Immigration Judges to shoulder huge caseloads and make decisions at a speed that probably makes quality work next to impossible.

But even the pressures of the job don't excuse the conduct documented in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007). Nor, given that the Seventh Circuit has all the time it wants to reach a decision, does it excuse the majority decision to defer to an arbitrary and capricious decision. Judge Posner's dissent is far more persuasive than Judge Evans for the majority — although Posner here fails to persuade Judge Easterbrook, who is the third vote.

Posner points up errors of logic, and notes a judicial demeanor from hell, which together suggest that this was not a fair hearing. The best the majority can say is that the decision, although “odd” is not “so deeply flawed” as to be reversible. If we take it at face value, this looks like the rare case which turned on how deferential a reviewing court should be. But one could be forgiven for reading it as showing a great reluctance on the part of some judges to admit just how bad things are in some IJ's hearing rooms, for to do so would be to open the floodgates to immigration petitions and reversals.

Posted in Administrative Law | 3 Comments

Seacoast Anti-Pollution League v. Costle Overruled

Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), long one of the perennials of administrative law teaching, is no more. It seems that late last month the First Circuit overruled Seacoast in Dominion Energy Brayton Point, LLC v. Johnson, 2006 U.S. App. Lexis 8205, 2006 WL 820405 (1st Cir., March 30).

Seacost is famous for holding that the words “public hearing” in a statute triggered formal adjudication under sec. 554 of the APA. The idea was that if the issues were sufficiently important, Congress should be understood to have assumed that the agency should use the cumbersome full-dress procedures of an on-the-record adjudication. This was not as strange as it may sound to modern ears, as it followed the influential Attorney General’s Manual on the APA.

Other circuits, however, took a different tack, especially after the landmark case of Chevron v. United States. Those courts held that unless Congress explicitly instructed the agency to hold a “formal” hearing (most commonly by saying that the hearing should be “on the record”) the agency could in most cases choose to proceed by the less onerous, although still quite formalized, “informal” rulemaking process.

That makes the Ninth Circuit the sole remaining outlier, based on Marathon Oil Co. v. EPA, 564 F.2d 1263 (9th Cir. 1977). That rule is probably doomed too.

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The good folks at POGO note that the Dept. of Justice isn’t following its own policy strongly suggesting that all agencies provide a link to its Freedom of Information Act (FOIA) request policy on all agency homepages.

Blogged in part because I like all-acronym titles.

Posted in Administrative Law | 2 Comments

Broadcast Flag Dead

Public Knowledge writes:

Public Knowledge is pleased to announce that The U.S. Appeals Court for the D.C. Circuit this morning threw out the Federal Communications Commission's order establishing the so-called “broadcast flag.” In a unanimous opinion, the court agreed with our argument that the FCC exceeded its authority in creating this broadcast flag scheme. Judge Harry T. Edwards, writing for the court, said: “In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims.” This was a case that Public Knowledge organized and financed. We're still looking for help to pay for the case, so please take the opportunity, if you haven't, contribute to PK or become a member. It's easy. See here:

We couldn't have done it without the help of our co-plaintiffs, Consumers Union, Consumer Federation of America, Electronic Frontier Foundation, American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association and the Special Libraries Association.

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Unfortunate Acronym

I am not making this up. From the Federal Register:

The BLS plans to have email data collection in place in all States in 2004 or in early 2005. At this time, six volunteer States are testing the procedures and software of email data collection. OES is enhancing the State Survey Processing and Management (SPAM) computer system to improve the quality and timeliness of the data. OES will convert to the June 6, 2003, definitions of Metropolitan Statistical Areas by 2005.

NOTICES DEPARTMENT OF LABOR Bureau of Labor Statistics Proposed Collection, Comment Request Friday, February 13, 2004 69 FR 7264-01, 2004 WL 256289 (F.R.) .

Want to bet someone won a round of drinks as to whether s/he could sneak that one by the boss?

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Administrative lawyers and policy wonks will be pleased to know that OMB Watch, a very fine bunch, have launched RegWatch, a regulatory policy blog devoted to “quick alerts to the latest news and views about protections of the public interest.” (Thanks Barbara!)

Posted in Administrative Law | 1 Comment