Presenters 10/13/2015. Effective Use of Evidence and Expert Witnesses in Immigration Court

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1 Effective Use of Evidence and Expert Witnesses in Immigration Court Presenters Michelle Mendez, CLINIC Staff Attorney Martin Gauto, CLINIC Staff Attorney 1

2 Next Webinar Effective Trial Advocacy Wed, 11/18/15, 2:00 3:30PM EST Register here: Agenda Evidentiary considerations Expert witnesses Objections EVIDENTIARY CONSIDERATIONS 2

3 Respondent s Burden to Demonstrate Eligibility for Relief Be ready to address any potential bars to relief / inadmissibility issues Criminal, misrepresentation/fraud, statutory bars, etc. INA 240(c)(2) -- respondent must show that they are clearly and beyond doubt entitled to be admitted and not inadmissible under section 212. Must satisfy basic statutory/regulatory eligibility requirements INA 240(c)(4) -- Burden on respondent seeking relief to establish that s/he satisfies eligibility requirements, and with respect to relief requiring discretion, that the noncitizen merits favorable exercise of discretion Role of Evidence Every legally significant fact in a case must be proven by evidence A legally significant fact is a fact that must be proven in order to win the case 8 Determining Facts to Prove Lorena, from Honduras, was recently detained at the border and placed in removal proceedings. She had been living with her family in San Pedro Sula but had to escape to the U.S. when her brother was murdered and her life was threatened by a violent local gang. Lorena applied for asylum at the asylum office but her case was not approved and was referred back to immigration court. She would like to pursue her asylum case before the IJ. 1. Elements for Asylum? 2. Legally significant facts to establish? 3. What evidence can you use to establish these facts? 9 3

4 Determining Facts to Prove 1. Element #1: Well-founded fear Legally significant fact? Evidence? 2. Element #2: Of future persecution Legally significant fact? Evidence? 3. Element #3: Based on a protected ground Legally significant fact? Evidence? 10 Types of Evidence Testimonial Documentary Demonstrative or Real (e.g. photos, charts) 11 Credibility Credibility is determined by the totality of the circumstances and may be based on factors such as the witness demeanor or candor. (REAL ID Act of 2005) Great deference given to immigration judges to determine credibility 4

5 Rules of Evidence Limited formal rule of evidence in removal proceedings. See 8 CFR Sec General rule: favors admissibility as long as the evidence is shown to be: probative of relevant matter fundamentally fair Federal Rules of Evidence don t apply 13 Authentication of Evidence Authentication is required. Iran v. INS, 656 F.2d 469, 472 (9th Cir. 1981) No clear standards IJ may consider testimony 14 Exhibits & Submission of Evidence At the individual hearing, the judge organizes all documentary or physical evidence is into exhibits which are numbered and usually tabbed Document submitted to court is not of record until admitted into evidence by the judge 15 5

6 EXPERT WITNESSES Opinion Testimony/Expert Witnesses In general, witnesses can t testify about opinion One exception is an expert witness, a person who has specialized knowledge. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (determining the standard for admitting expert testimony in federal courts) 17 Expert Witnesses Federal Rule of Evidence 702 If scientific, technical, or other specialized knowledge will assist trier of fact to understand evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in form of an opinion or otherwise 18 6

7 Expert Witnesses Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (determining the standard for admitting expert testimony in federal courts) Immigration Judges, like other trial judges generally, are often required to determine factual disputes regarding matters on which they possess little or no knowledge or substantive expertise, and, in making such determinations, they typically rely on evidence, including expert testimony, presented by the parties. Matter of Marcal Neto, 25 I&N Dec. 169, 176 (BIA 2010) ICPM 3.3 when submitting your witness list you must include the CV or resume of the proposed expert 19 Expert Witnesses Qualifying your witness as an expert. Answer 3 big questions: Who is she? Why is she here? Can I trust her? Introduction Education, training, and experience Teachings & Publications, if any, and professional associations Previous experience as expert witness Expert Witnesses If the TA challenges whether your witness is in fact an expert, then the TA may voir dire the witness i.e., question him/her on his/her qualifications 21 7

8 Expert Witness Preparation Prepare for direct and cross as with any other witness Stick to relevant details 22 Witness Preparation If IJ does not accept your witness as an expert, then move to permit witness testimony under INA 240(b)(4)(B) & 8 CFR (a)(4) alien s statutory right to present evidence in his/her behalf Or move IJ to permit testimony by witness as someone w/ material or relevant evidence. INA 240(b)(1) and 8 CFR OBJECTIONS 8

9 Objections Objections to evidence, where appropriate, should be made to create a record for appeal Common objections are for: Relevance Fairness (Due Process) To the form of questions and answers during direct and cross examination 25 Relevance This standard of relevance is considered a liberal one. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993); see also 8 C.F.R (a) Relevant evidence tends to prove or disprove a fact or legal issue in dispute Example: If Lorena seeks to present evidence in her asylum case about hardship of being separated from friends in U.S. if forced to return to Honduras, TA likely to object on relevance grounds 26 Objections to Form of Questions Include Leading (where answer contained in the question) Repetitive, asked and answered Argumentative Assumes fact not in evidence or mistakes facts in evidence Confusing, misleading, ambiguous Calls for legal conclusion Compound question 27 9

10 Objections to Answer Counsel may object to an answer and move to strike where response is: Irrelevant Immaterial Privileged Unresponsive Opinion Narrative Speculative 28 Objection to Interpretation Immigration courts arrange for an interpreter both during master calendar hearings (i.e., scheduling hearings) and individual hearings (i.e., merit hearings). EOIR requests that the parties provide specific information, such as the name of the language, the dialect, and the geographic location where the dialect is spoken to ensure that EOIR provides interpreters with the correct linguistic skills. See Immigration Court Practice Manual, Chapter 4.12(o)(i) Where interpreter incompetently interprets question or response, can object to interpretation 29 10

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