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September 3, 2008

8th Circuit Says No to Wikipedia as Evidence

The Eight Circuit is not a fan of Wikipedia, at least when the online source is used for the legal basis of a ruling of the Board of Immigrant Appeals.  The case is Lamilem Badasa v. Michael Mukasey, (07-2276, 2008 WL 3981817) on appeal from an order of the Board of Immigration Appeals.  Badasa applied for asylum under 8 U.S.C. § 1158 and Article III of the Convention Against Torture.  Badasa's documents were deemed not credible in establishing her identity.  She moved to reopen her case as she possessed a new document, a laissez-passer, issued by the government of Ethiopia.  The Department of Homeland Security, as a party to the immigration proceeding, submitted a definition of laissez-passer sourced from Wikipedia which the Immigration Judge accepted.  This document is a single-use, one way travel document issued on the basis of information supplied by the traveler.  The IJ affirmed the denial of the first examination.

The case went to the Board of Immigration Appeals who said the decision that the laissez-passer document did not establish Badasa's identity was not clearly erroneous.  The BIA also noted that it was uncomfortable with Wikipedia as a source, but there was other evidence supporting the IJ's conclusion.  The Eight Circuit looked at this and said the case had to go back as while there might be other evidence beyond Wikipedia, the BIA never stated what it was. 

From the Court's opinion:

We know only that the BIA thinks that if, hypothetically, the IJ had not considered Wikipedia and reached the same conclusion, then that conclusion would not be clearly erroneous. But we do not know 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. Because the BIA’s ultimate conclusion that Badasa failed to establish her identity is not adequately explained, we must remand for further proceedings. See Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007).

The Court had a few scathing words for the use of Wikipedia as the basis for a legal decision.  Wikipedia is not good for establishing facts in evidence used as the basis for a legal judgment given that, by its own admission, Wikipedia content may be in flux, not verified, or written by individuals with agendas.  Recall Stephen Colbert urging his viewers to change the entry on the African Elephant to say that the population had tripled and was not endangered.  Nothing was further from the truth.  Wikipedia editors had to lock that particular entry from further vandalism.  Colbert proved the point that saying something and reality may be two different things. 

Federal courts have cited Wikipedia 167 times as of today as referenced in Westlaw.  Most of the citations are used to elaborate on a definition or explain a concept.  However, almost all of these references cite other sources that are fixed or substantial enough that the issue in the Eight Circuit is not present.  Some of the courts do give disclaimers about the viability of Wikipedia as a source even though they use the web site.  One litigant tried to use an article from Wikipedia as evidence of ineffective assistance of counsel after pleading guilty in an arms possession case.  See United States v. Allen (10th Circuit, July 29, 2008, 2008 WL 2894006).  The Allen Court didn't bite on that one, dismissing the appeal out of hand.  The lesson?  Wikipedia is not the best source for information used in legal arguments.  [MG}

September 3, 2008 | Permalink


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