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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, September 5, 2008

WikiJudge?: 8th Circuit Finds That Immigration Judge Improperly Relied Upon Wikipedia In Asylum Case

In Budasa v. Mukasey, 2008 WL 3981817 (8th Cir. 2008), the Eighth Circuit granted a petition for review of an order of the Board of Immigration (BIA) based upon improper consideration of evidence from internet encyclopedia Wikipedia.  In Mukasey, Lamilem Badasa entered the U.S. illegally using a fraudulent Italian passport and later applied for asylum and relief under Article III of the Convention Against Torture. The Immigration Judge (IJ) found that Badasa's claim was not credible because she had submitted fraudulent documents designed to establish her identity  The BIA initially dismissed Badasa's administrative appeal, also concluding that she had failed to establish her identity. Badasa thereafter moved to reopen her case based on a travel document recently acquired from the Ethiopian government, known as a laissez-passer, which Badasa alleged would establish her identity.  The BIA then reopened the case and remanded it to the IJ for further consideration.

On remand, the IJ used information, including evidence from Wikipedia, to conclude that laissez-passer is a single-use, one-way travel document that is issued based on information provided by the applicant. On this basis, the IJ concluded that the Ethiopian government's issuance of the travel document did not change her prior decision regarding Badasa's failure to prove her identity and denied the application for asylum, and the BIA affirmed.

Badasa then appealed to the Eighth Circuit, which reversed, finding that:

     "Wikipedia describes itself as 'the free encyclopedia that anyone can edit,' urges readers to '[f]ind something that can be improved, whether content, grammar or formatting, and make it better,' and assures them that '[y]ou can't break Wikipedia,' because '[a]nything can be fixed or improved later....' Wikipedia's own 'overview' explains that 'many articles start out by giving one-perhaps not particularly evenhanded-view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form....'  Other articles, the site acknowledges, 'may become caught up in a heavily unbalanced viewpoint and can take some time-months perhaps-to regain a better-balanced consensus....' As a consequence, Wikipedia observes, the website's 'radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.'"

Based upon these factors, the Eighth Circuit found that the IJ improperly relied upon the evidence from Wikipedia and that it was impossible to determine whether she would have reached the same conclusion if she had not considered this evidence.  Thus, it granted the petition for review and remanded to the BIA.

Now, this was a case for asylum, so "fairness rather than the rules of evidence govern[ed] the admissibility of evidence." Turn v. Gonzales, 485 F.3d 1014, 1028 (8th Cir. 2007).  Nonetheless, it seems clear to me that a judge would have made the same ruling a case governed by the Federal Rules of Evidence.  Specifically, because there are multiple, unidentifiable authors of each Wikipedia entry, there are hearsay issues with such evidence under Article VIII of the Rules and authentication issues under Article IX.  Furthermore, because Wikipedia itself acknowledges that articles can be biased and "in a bad state," it's very possible that they are substantially more misleading, etc. than probative, violating Federal Rule of Evidence 403.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/09/wikipedia-inadm.html

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