Citing Wikipedia — Harmless Error?
A warm thank-you to Concurring Opinions for the invitation to return as a guest blogger! I enjoyed myself so much last time that I couldn’t resist returning despite being on leave.
On to the juicy stuff. Much of my scholarship focuses on documenting and analyzing the disastrous state of our immigration system. I’m not alone in my fascination with this topic; in July, the Department of Justice’s Office of the Inspector General released a report on politicized hiring, over one third of which is devoted to immigration courts and the Board of Immigration Appeals, and the Government Accountability Office will soon release a report documenting the countless problems with the immigration courts.
Moreover, I know that all of you law professors out there have received at least one student paper (if not multiple papers) that cites Wikipedia. This is one of my pet peeves and always garners a “FIND PRIMARY SOURCE!!” notation in the margins. But now I have an Eighth Circuit case, Badasa v. Mukasey, to which I can refer my students. Yes indeed, the Department of Homeland Security trial attorney submitted “information from an Internet website known as Wikipedia”, to be fair, among other documents, to establish the meaning of the term laissez-passer. (Note that the relevant Wikipedia page even warns the reader: “This article does not cite any references or sources.”)
As if it wasn’t bad enough to have a full-grown lawyer who graduated from law school, passed the Bar, and got a job with our government citing Wikipedia in court, the Immigration Judge relied on the Wikipedia information and other unnamed documents to establish that Ms. Badasa had failed to prove her identity and thus to deny her asylum claim. This incompetence would almost be humorous if it weren’t for the dire consequences of rejecting a valid asylum application and returning a refugee to a country in which they face torture and possibly death.
On to the Board of Immigration Appeals (BIA), the immigration system’s administrative appellate body. After rapping the judge lightly on the knuckles by stating that it did “not condone or encourage the use of resources such as Wikipedia.com in reaching pivotal decisions in immigration proceedings” and noting that the judge’s decision “may have appeared more solid had Wikipedia.com not been referenced”, the BIA declined to find that Ms. Badasa was prejudiced because the judge’s decision was supported by enough non-Wikipedia evidence to find no clear error. What??!??
Thankfully, the 8th Circuit stepped in and restored some sanity. After a thorough description of the perils of Wikipedia (that my Wikipedia-citing students will soon be reading), the Court noted that “[t]he BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum.” And one of my favorite cites of all times, from R. Jason Richards’ Courting Wikipedia: “Since when did a Web site that any Internet surfer can edit become an authoritative source by which law students could write passing papers, experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?” An excellent question.
Finding the deferential “clear error” standard inappropriate here, the 8th Circuit remanded the case to the BIA to determine “whether the IJ would have reached the same conclusion without Wikipedia, or whether (and if so, why) the BIA believes that the IJ’s consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ’s decision.” Word.
Hat tip to Prof. Kevin Johnson at the ImmigrationProf Blog.