eoir practice manual expert witness
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eoir practice manual expert witnessIt does not constitute legal advice. You should always consult an attorney regarding your matter. Also, an affirmative asylum applicant whose application is denied the Asylum Office can renew their application for asylum, withholding and CAT before the IJ. The asylum application is heard de novo before the IJ. Unlike the asylum interview, removal proceedings are adversarial, with an attorney from Immigration and Customs Enforcement (ICE) (most often) fighting against relief for the applicant. This valuable guide is available at. The court date in the Notice to Appear (NTA) that the applicant first receives will be for an MCH date. On MCH dates, the IJ deals with administrative issues, including scheduling, filing applications, pleadings to the immigration charges, and other issues that arise. Most IJs take cases where the respondents are represented by counsel first, and some IJs hear pro bono cases before cases with private attorneys. It is important to let the IJ know if you are working on the case pro bono and if you are not generally an immigration practitioner. If the IJ or ICE attorney says anything that you don’t understand, ask them to clarify. Even if they seem irritated at having to slow the proceedings down, you are responsible for doing anything the IJ or ICE attorney directs you to do, and complying with any deadlines they impose, so it’s imperative that you understand what they tell you. Even if the attorney has represented the applicant before the Asylum Office, they must submit an EOIR-28 to become the attorney of record for the removal proceedings (and must use the court’s “eRegistry” to obtain an EOIR ID number: see ). The attorney should hand the clerk the completed EOIR-28 and let the clerk know which number on the calendar their case is. The attorney should then sit and wait for the case to be called. Most IJs call the case by the last three digits of the respondent’s A-Number or by the attorney’s name.http://skalamatbaa.com/userfiles/dk-digital-dvd-player-manual.xml
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On the record, the IJ will state the nature of the proceedings and ask your client if they understand what is happening. If an individual appears without counsel, the IJ will usually ask the individual if they would like a continuance in order to seek legal counsel. There generally are not interpreters present for the MCH, and normally the only conversation the IJ will have directly with the respondent is to confirm that he wants the attorney present to represent them. Although the respondent plays a minor role at MCHs, they must be present for all of them (unless the IJ explicitly waives their presence) or they will be ordered removed in absentia. Generally, MCH dates are adjourned for relatively short period of time, such as three to six weeks. If not, they should say so and ask for a copy. The IJ will often grant continuances so that the attorney can go over the NTA with the client to determine whether the charges are correct—and if there is any question (even remotely) about their accuracy, then a continuance should be sought. These charges generally look like this: If all of the information is correct, the attorney should admit the charges. If any of the facts are incorrect (such as the date of entry into the United States), the attorney should deny the charge and state the correct fact. In most asylum cases, such as in the example above, the charge of removability will simply be that the respondent overstayed their visa, or entered without a lawful visa. If this is true, this charge should be admitted. If the respondent is charged with a criminal ground of removability, the issues are more complicated, and the attorney should thoroughly research the charge prior to the MCH date. Criminal grounds of removability and their consequences are beyond the scope of this manual. In order to be eligible to apply for asylum, the respondent, through the attorney, must admit removability under one of the grounds.http://trimpeks.com.tr/userfiles/dk-msd600m-manual.xml The IJ will then identify the client’s country of origin as the country of removal. Assuming that the respondent, through counsel, admits removability, the IJ will ask what forms of relief the respondent is seeking. The attorney will then respond, “asylum, withholding of removal, and relief under the Convention against Torture.” A grant of VD allows the respondent to depart the United States on his own rather than being deported if he is unsuccessful with his other applications. If the applicant has the ability to travel to a country other than their country of origin if they are unsuccessful with their asylum application, the attorney should request VD.This time period is generally 30 to 45 days, but if you let the IJ know that you are working on the case pro bono and have a busy caseload, the IJ will probably give approximately 45 days. It is generally best to make sure that you have adequate time to fully prepare the asylum application. If your client is renewing their request for asylum, withholding, and CAT protection, the IJ will likely indicate that any amendments to the I-589 asylum application should be tendered to the court at the same time as other pre-trail submissions prior to an IH. The old I-589 is still part of the record, however, so it is important that the answers in both versions be consistent or that any inconsistencies be fully explained. If the attorney representing the applicant in court prepared the I-589 for the Asylum Office, there generally would not be a reason to prepare a new one for court. If an applicant has never had his biometrics captured, or if it has been more than 15 months since they were last taken, the applicant must request a biometrics appointment from USCIS. To so initiate clearances, send USCIS (1) a copy of the first three pages of the I-589 that was filed in court, (2) a copy of your EOIR-28 and (3) the instruction sheet found here.https://www.thebiketube.com/acros-canoscan-lide-100-user-manual Please note that you should file the biometrics request at least 3-4 months before your IH in order to allow for sufficient processing time. If biometrics have not cleared by time an IH is scheduled, the IJ is likely to allow you to present your witnesses and other evidence at the IH and will then adjourn the IH for a final decision after biometrics have cleared. If your case has been adjourned for this very reason, and if biometrics have still not cleared by the time of your rescheduled hearing, you may file a motion to adjourn. Neither the applicant nor their counsel will be informed if biometrics have cleared; only the ICE attorney will have access to that information. It is a good idea to call the ICE attorney a few days prior to your final IH to inquiry whether your client’s biometrics are cleared. Unlike at the asylum interview, in immigration court, a professional interpreter is supplied by the Court for the IH. Even if a respondent wants to supply their own interpreter, they cannot. Although the interpreters used by the immigration courts are professionals, they are not always very good. The attorney should assure the client that interpreters are bound by rules of confidentiality and would lose their jobs if they discussed asylum cases outside of court. The attorney can ask the IJ at the MCH whether the IJ will allow the interpreter to be there as back up on the IH date in case the applicant doesn’t understand a question, or whether the IJ’s policy is to require the entire hearing to be conducted either in English or in the applicant’s native language. The IJ usually asks how much time will be necessary to complete the IH. You should ask for at least three or four hours, and do not hesitate to ask for more time if you really think you need it. You will find that three is the bare minimum for presenting a thorough case. Unfortunately, the IJs are rather hesitant to schedule more than four hours for a hearing.https://www.accessoriperdisabili.com/images/compaq-presario-900-series-service-manual.pdf Once the hearing date is set, the MCH is adjourned. At a minimum, all documents for non-detained cases are due no less than 15 days before the IH (see the Immigration Court Practice Manual for details). Some IJs require documents specific to the applicant’s case (as opposed to background, country condition materials) to be submitted 30 or 60 days before the IH. Mostly, detained individuals have their IH date set only one or two months in advance. Corroboration can come in the form of oral testimony or written documentation.An IJ may choose to give hearsay evidence less weight than other evidence, but the fact that it is hearsay does not make it inadmissible. Thus, for example, a letter from an applicant’s former lover confirming that the two were once harassed by the police would probably be admissible. The attorney should put the witness’s full name and reason for testifying, for example, “Jose Doe, respondent’s life partner.” If it’s unclear whether or not a particular witness will be able to testify, it is better to list the person on the witness list. There’s no rule that every potential witness must testify. However, it is unusual to have such witnesses who were present for the persecution, either because the client knows no one in the area who can be a useful witness or because those who could testify are fearful of doing so. Thus, if the applicant has a same-sex partner in the United States, the partner should testify about their relationship.An IJ would not knowingly allow an undocumented immigrant to testify, and merely entering the immigration court would put the undocumented immigrant at grave risk of being placed in removal proceedings. Additionally, you should include the expert’s CV and an affidavit of what the expert intends to testify about. Failing to submit these documents in advance of the hearing will likely lead to the ICE attorney arguing against allowing the expert to testify because the attorney could not adequately prepare cross-examination. Expert witnesses, however, should only be called if their testimony adds something new to the case and is not merely a summary of the documentary evidence and affidavits submitted previously. In these situations, it is crucial to find an expert witness. Expert witnesses can also address specific issues which may arise in the case, such as why it would be unreasonable to expect the applicant to relocate internally within the country of origin. Likewise, for some countries with positive media attention about gains made in LGBTQ rights, having an expert explain that, for example, a well-attended gay pride march does not translate into protection from homophobic violence by the police, can be vital to the case. Testimony should focus on the specific elements of the respondent’s claim. It is not enough that a witness offer general testimony. The witness must be able to specifically corroborate elements of the respondent’s own testimony. Sometimes, witnesses offered are people who have traveled extensively in your client’s country or are active in political or advocacy organizations with a pronounced point of view about that particular country. Such witnesses’ credentials as “experts” are often problematic. In the event that a witness’s “expertise” is called into question at the hearing, you should be prepared to argue on behalf of their credentials or, if unsuccessful, to go forward effectively if the witness is not accepted. Even if the ICE attorney does not object to a particular witness, the IJ may refuse to allow such testimony on their own motion. Additionally, sometimes, even if allowed to testify, a witness’s political bias is so strong and so obvious that their testimony carries little weight with the IJ. This is particularly important if your client has memory problems or a flat, unemotional affect. Similarly, it may be helpful to have a doctor or other qualified expert testify if your client has been tortured or beaten. If the doctor has knowledge about the applicant’s country and can testify as to unavailability of similar HIV treatment options there, they should also be prepared to testify about this. If your client does not have any other way to corroborate the fact that they are LGBTQ-identified, having a therapist who the applicant sees regularly testify that he believes that the applicant really is LGBTQ-identified based on their therapy sessions can be very helpful. Such testimony can be particularly important if the applicant has a challenging issue in their case, such as a prior opposite-sex marriage, which may cause the IJ to question the veracity of the applicant’s sexual orientation or gender identity. The attorney must submit a motion before the call-up date requesting that the IJ allow telephonic testimony. The motion can be short but should explain why telephonic testimony is necessary (e.g., if the expert resides in Florida for a Pennsylvania case, and the respondent is indigent). On the one hand, this is logical. The IJ does not have the expertise to determine whether or not a foreign government record is authentic, particularly when the record is in a foreign language and may come from a very different culture. The problem, however, is that the regulations place a burden on the asylum applicant who has fled their country of origin to have their documents authenticated by the very government from which they have fled. In practice, this means contacting a family member or friend in the country of origin who is willing to go through several steps of authentication with local government officials leading up to an authentication stamp by the U.S. embassy. Some IJs will allow unauthenticated documents into evidence, and others will not. In any event, it is important for the applicant to try to follow the authentication steps and document the efforts he made to do so if authentication is not possible. 2 Also, always make 100 certain with your client that all documents they are submitting are genuine. In many countries it is easy to buy “official” documents, and your client may not understand how seriously DHS will take the submission of fraudulent documents. Sometimes the ICE attorney will send an official document to forensics to be tested for authenticity. This can include sending the document to the U.S. consulate in the applicant’s home country and making inquiries (e.g., as to whether the police officer who signed the arrest record actually works in the station that issued the form). If your client submits any foreign documents, it is imperative that you make them understand that they must be 100 sure that the documents are real, and they should check with their friend or family member who obtained them to be sure. The brief should not be overly long (probably no longer than 20 pages), and it should focus on the particular facts of the case as well as any challenging issues, or particular legal issues in the case. You should not spend an inordinate amount of time researching and writing the general standard for asylum, and can probably obtain a sample brief with boilerplate language for the introductory section from the organization that referred the case to you. Use bold headings to make it as easy as possible for the reader to find the relevant sections, and clearly cite to the materials you’ve submitted. If your client has missed the one-year filing deadline, lay out a clear argument for which exception they are claiming and how their facts fit that exception. The act of writing the brief will also be very helpful to the attorney in becoming fully familiar with all submitted materials and with crafting arguments to address legal issues in the case. This conversation may be helpful in determining what the ICE attorney sees as the weakness(es) in your case. Note that the ICE attorney who appeared at the MCH will probably not be the attorney for the IH. Cases scheduled for IHs are assigned to ICE attorneys ten days in advance. If the case is adjourned after an IH has commenced, the ICE attorney should not change. Since ICE attorneys are generally not assigned to the case until ten days before the IH, if there are issues to address before then, it may be difficult to find an attorney who will return a phone call or review the file. If there is a serious concern which must be addressed, it’s a good idea to put it in writing and send a copy to the immigration court, after leaving a couple of unanswered phone messages. Such situations are unlikely, because the ICE attorney will be principally concerned with the issue of credibility and probably will not stipulate to anything until they have observed the client’s testimony and conducted some cross-examination. However, in such cases, it may be useful to ask the ICE attorney at the close of the IH if they will stipulate to eligibility and not oppose asylum or, failing that, if they will waive appeal if the respondent wins, thus ending the case immediately. If at all possible, you should try to watch a case that’s before the same IJ who will be hearing your case so that you get a feel for the IJ’s style. Removal proceedings are generally open to the public, though a respondent can request that asylum hearings can be closed. If you want to watch an asylum hearing, the organization which referred your case to you, or other local non-profits, can probably match you with an upcoming hearing to observe. The request for the adjournment must be made in writing and should be made as soon as possible after the need for the adjournment arises. Often you won’t receive a response to the adjournment request until a day or two before the scheduled hearing, so it’s safest to continue to prepare as if the adjournment will not be granted (although this may negate the purpose of the adjournment request). Therefore, preparing the applicant fully for the hearing is crucial to the outcome of the case. You should try to speak with practitioners in this area to learn as much as possible about the IJ’s style before the hearing. Some IJs are very controlling and will take over much of the questioning themselves, others are very passive, and still others may be “yellers” or abusive to litigants. It’s best to know what to expect and prepare accordingly. The website contains a (somewhat dated) listing of statistics of asylum grant rates for IJs around the country.One method for doing this is to begin with the final version of the declaration and go through it, breaking it down into open-ended questions. Although strict evidentiary rules do not apply, the ICE attorney will object if you ask questions which are too leading in nature. For CAT, this means eliciting testimony about the applicant’s future fear of torture; for VD, this means eliciting testimony that the client was present in the United States for at least a year before the NTA was issued, that they are a person of good moral character, have never failed to depart pursuant to a prior VD grant, have never been convicted of an aggravated felony, possess travel documents, and actually intend to depart. When IJs hear cases with unrepresented respondents, they ask the bulk of the questions, so IJs often become impatient with slow, methodical questioning by the respondent’s attorney, and the IJ may jump in and ask questions to speed the process along. The client should be fully prepared to listen carefully to questions by the IJ and to respond in the event that the IJ takes over the questioning from you. It is also important that you do not become flustered if this happens. The IJ will probably ask a few questions, then hand the questioning back over to you. If the IJ already covered something that you had intended to cover, don’t just return to your written the questions about the same incident, or the IJ will become more impatient with you. It is best to prepare the applicant for the harshest cross imaginable. You should look for any weakness or discrepancy in the case and work with the client to come up with truthful explanations that damage the case as little as possible. You should never give the client the questions to “study.” It is imperative at the hearing that the client think about the question and respond to the question by remembering the experience that they went through. If they memorize the “correct” answers, their testimony will sound rote and unconvincing. The client should reread their declaration, I-589, and supporting documents. The applicant should “study” the dates, because discrepancies between the oral testimony and written testimony can lead to an adverse credibility finding. In addition, all witnesses, particularly respondents, are generally very nervous and thus likely to forget certain things. For example, clients often forget dates or even years in which events happened. Though this is quite normal human behavior, often both ICE attorneys and IJs tend to think that if a client cannot remember in which year an important event occurred, then the account is not credible. As a result, you must try to convince the client in advance that it is very important to remember such details and testify to them to the best of their recollection. You should you run through a mock hearing with your client and practice some cross-examination questions with them. After building trust with your client, it is important that you mentally prepare them to face seemingly hostile questioning from the ICE attorney and IJ. They should not feel compelled to wear a suit, but they should not wear jeans and a t-shirt either. Some immigration courts (notably New York’s) can have long lines with extensive security to enter the building. In New York, the attorney and client should meet outside the building together, and have the written hearing notice handy to show the security guards. The attorney should always arrange to meet the client at least 30 minutes before the scheduled hearing in case there is a problem getting into the building. Most federal buildings have cafes if it becomes necessary to kill time. If the respondent is not in Court within a few minutes after the scheduled hearing time, they can be ordered removed in absentia. Asylum hearings are confidential, and IHs are generally closed to the public. It is, however, possible for multiple members of the law firm team to attend the IH. There’s really nothing to do about this but be flexible. ICE attorneys act as “prosecutors,” attempting to disprove the applicant’s eligibility for asylum. Witnesses are sworn, and both sides have the opportunity for direct and cross-examination. IJs are usually also very involved in questioning your client. However, immigration proceedings are not governed by the Administrative Procedures Act (APA), and tend to be more informal than those governed by APA standards. 3 Formal presentation of evidence is generally not required.Asylum-seekers are rarely able to offer evidence beyond their own testimony that would stand up to rigorous rules of evidence. For example, it is understood that producing a third-party declarant is simply out of the question, particularly in the case of an asylum-seeker who fled for their life. Thus, many kinds of evidence that would present difficult issues in other courts may be easily admissible in immigration court. Letters from friends or family members may often be introduced with little difficulty (though not always), as long as they are accompanied by translations. Documentary evidence, such as newspaper articles and general treatises are routinely admitted without objection. Thus, attorneys should not shy away from attempting to admit any evidence as long as an argument can be made that it is probative of the client’s claim in some fashion. Needless to say, however, the IJ will give all of the evidence the weight that they think it deserves. Particularly marginal evidence may be admitted by the IJ but viewed with a great deal of skepticism. Every effort should be made to comply with these regulations or to explain why authentication was not possible. Some IJs will allow documents which have not been authenticated according to the regulations into evidence, while other IJs will not. Make sure that everything you’ve submitted gets properly into the record as evidence. It is important to make certain that names, addresses, dates, A-Numbers, etc.In addition, if you know there will be substantial or even minor inconsistencies between testimony and earlier submissions, such as statements given to a DHS Officer or statements made during a credible fear interview, an attempt should be made at this point to correct inaccuracies and to state clearly the reasons for the inaccuracies. For example, many clients have unwittingly filed boilerplate applications prepared by unethical “notarios” or others and signed applications whose contents they know nothing about. Additionally, some clients initially file applications containing asylum claims that they believe are more acceptable, such as political opinion claims, but which subsequently turn out to be fabrications.Generally, the NTA and related materials have already been admitted as initial exhibits, and the asylum application along with all attached materials will be identified and admitted as a group exhibit. The IJ will simply identify all offered exhibits and ask if there are any objections. There are generally no objections to this, but if the ICE attorney does object to a particular piece of evidence, the IJ will usually permit brief arguments and rule quickly. Occasionally, specific items such as expert witness affidavits or CVs, or pieces of direct evidence such as letters or documents, will draw objections that the IJ is not comfortable ruling on at that point. In these circumstances, the IJ may instead reserve his ruling until the attorney presents the evidence during the course of the case. Other times the IJ will ask the two attorneys to discuss the case before going on the record to see if any agreements can be reached. For applicants with one-year issues, the attorney should seriously discuss the pros and cons of winning withholding of removal as opposed to asylum before the IH date because of this possibility. If the applicant has no colorable exception to the one-year filing deadline, there may not be a downside to accepting such an offer.Some will not permit them if the attorney has filed a pre-hearing memorandum. Either a pre-hearing memorandum or an opening statement is a very good idea, as both are vehicles to briefly summarize the client’s case and, in cases where it is not clear that the case falls within the boundaries of refugee law, to cite supporting case law and distinguish problematic case law. The IJ will review the file and read concise memoranda a day or so before the hearing, and in most cases, will be prepared to issue their oral decision immediately after the close of the hearing. A good memorandum and opening statement, when permitted, can be critical. The respondent’s attorney offers her case first, conducting direct examination, followed by cross-examination by the ICE attorney, and then by redirect examination where necessary. If your expert is located in another part of the country or the world and the cost of producing the expert in person would be prohibitive, most IJs allow telephonic testimony by expert witnesses; however, you will have to submit a motion prior to the call-up date requesting leave to present testimony telephonically. If there are other witnesses (especially expert witnesses, or medical or mental health professionals) with pressing schedules, most IJs will allow them to testify first instead of your client. Any witnesses (other than the respondent) who have not yet testified must wait outside the court room. Thus, if a client intends to have their partner testify, they should be aware that their partner cannot be in the court room for moral support while the applicant is testifying. Witnesses should be instructed to bring something to read and to have a full meal before coming to court because they may have to wait a couple of hours before they testify. The client should be advised to answer questions succinctly without engaging in long narratives, and should state clearly when they do not understand a question. Preliminary information should be gotten out as quickly as possible. Duplicative information can and should be eliminated, where there is no particular reason to bring it out in testimony.It is important that you explain to your client in advance that you are required to ask open-ended questions in awkward format (such as, “did there come a time when you had a problem because of your sexual orientation?”). You should prepare your client for this format of questions as well as for the possibility that on cross-examination they may be limited to “yes” or “no” answers. Again, though there are essentially no rules of procedure or evidence, you should raise objections if the questioning is inappropriate.