The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying levels of actual expertise that different executive agencies bring to bear. These weaknesses are particularly acute in immigration appeals and help explain why the 2002 streamlining of the Board of Immigration Appeals has proven problematic for the federal courts. Appellate courts often take advantage of the inherent ambiguities of the deference doctrine to prevent unacceptable results, but this approach does little to repair the essential flaws in the doctrine and exposes courts to criticism that they are acting arbitrarily. A more coherent way to understand how appellate courts use deference in practice would be to apply a balancing analysis similar to the procedural due process doctrine.
5 Drexel L. Rev. 101 (2012).
Kagan, Michael, "Dubious Deference: Reassessing Appellate Standards of Review in Immigration Appeals" (2013). Scholarly Works. 782.