Category: IMMIGRATION LAW & POLICY — Summer 2018

SYSTEMIC FAILURE: 9TH Circuit’s Most Recent Reversal Of BIA Demonstrates Disturbing Lack Of Basic Judicial Competence At All Levels Of EOIR – But, Even The 9th’s Rebuke Misses The Real Point – There Can Be No Due Process In Complex Cases Of This Type Without Legal Representation! – Arrey v. Barr

Arrey v Barr — 9th — Firm Resettlement

Arrey v. Barr, 9th Cir., 02-16-19, Published

SUMMARY BY COURT STAFF:

The panel granted in part a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Cameroon, and remanded.

The panel rejected petitioner’s contention that she was deprived of her due process right to a full and fair hearing based on the denial of her right to retained counsel and an unbiased fact finder. The panel held that the IJ in this case provided petitioner reasonable time to locate an attorney, where the IJ provided several continuances so she could do so, warned her repeatedly that he would not grant further continuances, and attempted to call her attorney when he failed to appear on the day of her merits hearing. The panel also held that although the IJ was rude and harsh with petitioner, petitioner failed to establish that the IJ’s conduct prejudiced her, where the IJ held a complete hearing and made a thorough decision that fully examined the underlying factual matters, and any potential prejudice caused by the IJ’s questionable adverse credibility determination was cured by the Board’s subsequent decision assuming the credibility of petitioner’s testimony in full.

The panel held that the Board committed three legal errors in its application of the firm resettlement bar, which precludes asylum relief if an applicant was firmly resettled in another country prior to arriving in the United States. First, the panel held that the Board erred by failing to consider whether the conditions of petitioner’s offer of resettlement in South Africa were too restricted for her to be firmly resettled. Second, the panel held that the Board erred by applying the firm resettlement rule not as a mandatory bar to petitioner’s asylum claim, but instead as a limitation on the evidence the Board considered in support of her claim for relief from removal to Cameroon, thus causing the Board to improperly ignore evidence of the abuse petitioner suffered in Cameroon before fleeing to South Africa, as well as evidence of the nature of her relationship with her abuser. Third, the panel held that the Board erred by applying the firm resettlement bar to petitioner’s withholding of removal claim, which is not subject to the firm resettlement bar.

Turning to petitioner’s CAT claim, the panel held that substantial evidence did not support the Board’s determination that petitioner could avoid future harm through internal relocation in Cameroon.

The panel remanded petitioner’s asylum, withholding, and CAT claims for further proceedings consistent with its opinion.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

 

PANEL: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block,* District Judge.

* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation.

OPINION BY:  Judge Gould

KEY QUOTE:

Petitioner Delphine Arrey petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision dismissing her appeal of an immigration judge’s (“IJ”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We conclude that the IJ did not deny Arrey her due process rights to counsel and an unbiased factfinder. As to Arrey’s asylum and withholding of removal claims, we conclude that the Board erred as a matter of law in its analysis and application of the “firm resettlement” rule. As to Arrey’s claim for relief under CAT, we conclude that substantial evidence does not support the Board’s determination that Arrey could safely relocate in another area of Cameroon. We grant the petition in part and remand for reconsideration of Arrey’s claims consistent with our opinion.

**************************************************

Even the 9th Circuit “blew” the fundamental issue here: No matter how annoying the respondent’s conduct might have been, there was no way to conduct a fair hearing in a case of this complexity without counsel present.  

From this recitation of facts, it’s pretty obvious that the respondent had no idea what “firm resettlement” was or how the process for proving or disproving it worked. Going ahead with the hearing created a miscarriage of justice that simply wasted time by going all the way the 9th Circuit and then being returned for competent judicial adjudication applying the correct standards. Haste makes waste.

And the overwhelming backlog that obviously was on the judge’s mind here was not created by this respondent and her attorney; no, it primarily results from “aimless docket reshuffling,” poor administration, Congressional neglect, and “designed to fail policies” by politicos in the DOJ (under the improper and unethical political influence of the DHS) which went into “overdrive” under Sessions.

Getting to the merits, beyond apparently correctly setting forth the respondent’s name and “A number,” the Immigration Judge and the BIA got largely everything else in this case wrong! The basic errors range from a “clearly erroneous” adverse credibility ruling, to a legally incorrect standard for “firm resettlement,” to an idiotically nonsensical ruling that “threats and one attempted assault of rape” did not “rise to the level of persecution” (cases involving these facts were routinely granted by the BIA during my tenure and, to my knowledge, were uniformly granted by IJs in Arlington; indeed, I can’t even imagine an ICE Assistant Chief Counsel during my tenure in Arlington arguing the contrary), to wrong evidentiary determinations, to another completely nonsensical finding on internal relocation.

In other words, this was a “rubber stamp” by BIA “judges” of a staff attorney’s writeup with canned “any reason to deny” language. It was not a fair and impartial adjudication by an “expert” group of appellate judges.

Far from it. If a student had turned this in as an exam answer to a hypothetical case on my Georgetown Law final exam, it would have received “zero credit.” So, how is it “OK” to have a system where individuals in what are supposed to be senior judicial positions, requiring great expertise in immigration, asylum, and human rights law, perform in a manner that would have been deemed unacceptable for L2s and L3s?

It isn’t; and it’s up to the Article III Courts and Congress to get some backbone and some integrity and put an end to this travesty. Yeah, this is “only one case.” But, it involves a human life. Cameroon is a horrible country; credible Cameroonian asylum cases were routinely granted in the Arlington Immigration Court, normally without appeal by ICE.

And for every case where a respondent is lucky enough to get a “Court of Appeals intervention,” dozens of individuals, many without lawyers or the faintest knowledge of what’s happening, are “railroaded” through this fundamentally unfair and constitutionally defective system. This, rather than the bogus wall, or an influx of desperate refugee families seeking asylum, is our true “national emergency” involving immigration: The disdain by our current Administration for the rule of law, human rights, judicial quality, simple human decency, and Due Process of Law under our Constitution! 

Congrats to Attorney Ron Richey, an “Arlington Immigration Court regular,” who appeared before me many times, for fighting for due process and justice in another jurisdiction. You are an inspiration to all of us in the “New Due Process Army!”

PWS

03-01-19

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!

“JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS” — My Remarks To The Americas Conference Of The International Association Of Refugee & Migration Judges, August 4, 2018

IMPLICIT BIAS IARMJ 08-03-18

JUST SAY NO TO 1939:  HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

 

By Paul Wickham Schmidt,

U.S. Immigration Judge, Retired

 

Americas Conference

International Association of Refugee & Migration Judges

 

Georgetown Law

August 4, 2018

 

INTRODUCTION

 

Good afternoon. I am pleased to be here. Some twenty years ago, along with then Chief U.S. Immigration Judge Michael J. Creppy, I helped found this Association, in Warsaw. I believe that I’m the only “survivor” of that illustrious group of “Original Charter Signers” present today. And, whoever now has possession of that sacred Charter can attest that my signature today remains exactly as it was then, boldly scrawling over those of my colleagues and the last paragraph of the document.

 

As the Americas’ Chapter Vice President, welcome and thank you for coming, supporting, and contributing to our organization and this great conference. I also welcome you to the beautiful campus of Georgetown Law where I am on the adjunct faculty.

 

I thank Dean Treanor; my long-time friend and colleague Professor Andy Schoenholtz, and all the other wonderful members of our Georgetown family; the IARMJ; Associate Director Jennifer Higgins, Dimple Dhabalia, and the rest of their team at USCIS; and, of course, our Americas President Justice Russell Zinn and the amazing Ross Patee from the Canadian Immigration and Refugee Board who have been so supportive and worked so hard to make this conference a success.

 

I recognize that this is the coveted “immediately after lunch slot” when folks might rather be taking a nap. But, as the American country singer Toby Keith would say “It’s me, baby, with you wake up call!” In other words, I’m going to give you a glimpse into the “parallel universe” being operted in the United States.

 

In the past, at this point I would give my comprehensive disclaimer. Now that I’m retired, I can skip that part. But, I do want to “hold harmless” both the Association and Georgetown for my remarks. The views I express this afternoon are mine, and mine alone. I’m going to tell you exactly what I think. No “party line,” no “bureaucratic doublespeak,” so “sugar coating.” Just the truth, the whole truth, and nothing but the truth!

 

I have good news and bad news. The good news is that we don’t have an implicit bias problem in the U.S. asylum adjudication system. The bad news: The bias is now, unfortunately, quite explicit.

 

Here’s a quote about refugees: “I guarantee you they are bad. They are not going to be wonderful people who go on to work for the local milk people.”

 

Here’s another one: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

 

Here’s another referencing the presence of an estimated 11 million undocumented residents of the U.S.: “Over the last 30 years, there have been many reasons for this failure. I’d like to talk about just one—the fraud and abuse in our asylum system.”

 

Here’s yet another: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”

 

You might think that these anti-asylum, and in many cases anti-Latino, anti-female, anti-child, anti-asylum seeker, de-humanizing statements were made by members of some fringe, xenophobic group. But no, the first two are from our President; the second two are from our Attorney General.

 

These are the very officials who should be insuring that the life-saving humanitarian protection purposes of the Refugee Act of 1980 and the Convention Against Torture are fully carried out and that our country fully complies with the letter and spirit of the 1951 Convention Relating to the Status of Refugees which is binding on our country under the 1967 Protocol.

 

Let me read you a quote that I published yesterday on my blog, immigrationcourtside.com, from a young civil servant resigning their position with “EOIR,” otherwise known as our Immigration Court system, or, alternatively, as the sad little donkey from Winnie the Pooh.

 

I was born and raised in a country that bears an indelible and shameful scar—the birth and spreading of fascism. An ideology that, through its different permutations, almost brought the world as we know it to an end. Sadly, history has taught me that good countries do bad things—sometimes indescribably atrocious things. So, I have very little tolerance for authoritarianism, extremism, and unilateral and undemocratic usurpations of Constitutional rights. I believe that DOJ-EOIR’s plan to implement individual annual numerical performance measures—i.e., quotas—on Immigration Judges violates the Due Process clause of the Fifth Amendment of the United States Constitution, and the DOJ’s own mission to “ensure the fair and impartial administration of justice.” This is not the job I signed up for. I strongly believe in the positive value of government, and that the legitimacy of our agency—and any other governmental institution for that matter—is given by “the People’s” belief in its integrity, fairness, and commitment to serve “the People.” But when the government, with its unparalleled might and coercive force, infringes on constitutionally enshrined rights, I only have two choices: (1) to become complicitous in what I believe is a flagrant constitutional violation, or (2) to resign and to hold the government accountable as a private citizen. I choose to resign because I cannot in good conscience continue serving my country within EOIR.

 

Strong words, my friends. But, words that are absolutely indicative of the travesty of justice unfolding daily in the U.S. Immigration Courts, particularly with respect to women, children, and other asylum seekers –- the most vulnerable among us. Indeed, the conspicuous absence from this conference of anyone currently serving as a judge in the U.S. Immigration Courts tells you all you really need to know about what’s happening in today’s U.S. justice system.

 

Today, as we meet to thoughtfully discuss how to save refugees, the reality is that U.S. Government officials are working feverishly at the White House and the U.S. Department of Justice on plans to end the U.S. refugee and asylum programs as we know them and to reduce U.S. legal immigration to about “zero.”

 

Sadly, the U.S. is not alone in these high-level attacks on the very foundations of our Convention and international protection. National leaders in Europe and other so-called “liberal democracies” — who appear to have erased the forces and circumstances that led to World War II and its aftermath from their collective memory banks — have made similar statements deriding the influence of immigrants and the arrival of desperate asylum seekers. In short, here and elsewhere our Convention and our entire international protection system are under attacks unprecedented during my career of more than four decades in the area of immigration and refugee protection.

 

As a result, judges and adjudicators throughout the world, like you, are under extreme pressure to narrow interpretations, expedite hearings, view asylum seekers in a negative manner, and produce more denials of protection.

 

So, how do we as adjudicators remain loyal to the principles of our Convention and retain our own integrity under such pressures? And, more to the point, what can I, as someone no longer involved in the day-to-day fray, contribute to you and this conference?

 

Of course, you could always do what I did — retire and fulfill a longtime dream of becoming an internet “gonzo journalist.” But, I recognize that not everyone is in a position to do that.

 

Moreover, if all the “good guys” who believe in our Convention, human rights, human dignity, and fair process leave the scene, who will be left to vindicate the rights of refugees and asylum seekers to protection? Certainly not the political folks who are nominally in charge of the protection system in the US and elsewhere.

 

So, this afternoon, I’m returning to that which brought this Association together two decades ago in Warsaw: our united commitment to the letter and spirit of the 1951 Convention; additionally, our commitment to fairness, education, international approaches, group problem solving, promoting best practices, and mutual support.

 

In the balance of my presentation, I’m going to tell you four things, taken from our Convention, that I hope will help you survive, prosper, and advance the aims of our Convention in an age of nationalist, anti-refugee, anti-asylum, anti-immigrant rhetoric.

 

 

 

 

BODY

 

Protect, Don’t Reject

 

First, “protect, don’t reject.” Our noble Convention was inspired by the horrors of World War II and its aftermath. Many of you will have a chance to see this first hand at the Holocaust Museum.

 

Our Convention is a solemn commitment not to repeat disgraceful incidents such as the vessel St. Louis, which has also been memorialized in that Museum. For those of you who don’t know, in 1939 just prior to the outbreak of World War II a ship of German Jewish refugees unsuccessfully sought refuge in Cuba, the United States, and Canada, only to be rejected for some of the same spurious and racist reasons we now hear on a regular basis used to describe, deride, and de-humanize refugees. As a result, they were forced to return to Europe on the eve of World War II, where hundreds who should and could have been saved instead perished in the Holocaust that followed.

 

Since the beginning of our Convention, the UNHCR has urged signatory countries to implement and carry out “a generous asylum policy!” Beyond that, paragraphs 26 and 27 of the UN Handbookreiterate “Recommendation E” of the Convention delegates. This is the hope that Convention refugee protections will be extended to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition.

 

Therefore, I call on each of you to be constantly looking for legitimate ways in which to extend, rather than restrict, the life-saving protections offered by our Convention.

 

Give The “Benefit Of The Doubt”

 

Second, “give the benefit of the doubt.” Throughout our Convention, there is a consistent theme of recognizing the difficult, often desperate, situation of refugees and asylum seekers and attendant difficulties in proof, recollection, and presentation of claims. Therefore, our Convention exhorts us in at least four separate paragraphs, to give the applicant “the benefit of the doubt” in assessing and adjudicating claims.

 

As a sitting judge, I found that this, along with the intentionally generous “well-founded fear” standard, enunciated in the “refugee” definition and reinforced in 1987 by the U.S. Supreme Court and early decisions of our Board of Immigration Appeals implementing the Supreme Court’s directive, often tipped the balance in favor of asylum seekers in “close cases.”

 

 

 

 

Don’t Blame The Victims

 

Third, “don’t blame the victims.” The purpose of our Convention is to protect victims of persecution, not to blame them for all societal ills, real and fabricated, that face a receiving signatory country. Too much of today’s heated rhetoric characterizes legitimate asylum seekers and their families as threats to the security, welfare, heath, and stability of some of the richest and most powerful countries in the world, based on scant to non-existent evidence and xenophobic myths.

 

In my experience, nobody really wants to be a refugee. Almost everyone would prefer living a peaceful, productive stable life in their country of nationality. But, for reasons beyond the refugee’s control, that is not always possible.

 

Yes, there are some instances of asylum fraud. But, my experience has been that our DHS does an excellent job of ferreting out, prosecuting, and taking down the major fraud operations. And, they seldom, if ever, involve the types of claims we’re now seeing at our Southern Border.

 

I’m also aware that receiving significant numbers of refugee claimants over a relatively short period of time can place burdens on receiving countries. But, the answer certainly is not to blame the desperate individuals fleeing for their lives and their often pro bono advocates!

 

The answer set forth in our Convention is for signatory countries to work together and with the UNHCR to address the issues that are causing refugee flows and to cooperate in distributing refugee populations and in achieving generous uniform interpretations of the Convention to discourage “forum shopping.” Clearly, cranking up denials, using inhumane and unnecessary detention, stirring up xenophobic fervor, and limiting or blocking proper access to the refugee and asylum adjudication system are neither appropriate nor effective solutions under our Convention.

 

 

 

 

Give Detailed, Well-Reasoned, Individualized Decisions

 

Fourth, and finally, “give detailed, well-reasoned, individualized decisions.” These are the types of decisions encouraged by our Convention and to promote which our Association was formed. Avoid stereotypes and generalities based on national origin; avoid personal judgments on the decision to flee or seek asylum; avoid political statements; be able to explain your decision in legally sufficient, yet plainly understandable terms to the applicant, and where necessary, to the national government.

 

Most of all, treat refugee and asylum applicants with impartiality and the uniform respect, sensitivity, and fairness to which each is entitled, regardless of whether or not their claim under our Convention succeeds.

 

CONCLUSION

 

In conclusion, I fully recognize that times are tough in the “refugee world.” Indeed, as I tell my Georgetown students, each morning when I wake up, I’m thankful for two things: first, that I woke up, never a given at my age; second, that I’m not a refugee.

 

But, I submit that tough times are exactly when great, independent, and courageous judging and adjudication are necessary to protect both applicants from harm and governments from doing unwise and sometimes illegal and immoral things that they will later regret.

 

I have offered you four fairly straightforward ways in which adhering to the spirit of our Convention can help you, as judges and adjudicators, retain integrity while complying with the law: protect, don’t reject; give the benefit of the doubt; don’t blame the victims; and give detailed, well-reasoned, individualized decisions.

 

Hopefully, these suggestions will also insure that all of you will still be around and employed for our next conference.

 

Thanks for listening, have a great rest of our conference, and do great things! May Due Process and the spirit of our noble Convention and our great organization guide you every day in your work and in your personal life! Due Process forever!

 

 

(08-06-18)

************************************

PWS

08-06-18

 

 

 

 

Related posts:

  1. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
  2. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

LAW YOU CAN USE: HON. DOROTHY HARBECK: “Objections in Immigration Court: Dost Thou Protest Too Much or Too Little?”

Objections in Immigration Court: Dost Thou Protest Too Much or Too Little?1

Hon. Dorothy Harbeck 2

5 Stetson J. Advoc. & L. 1 (2018)

I. Introduction

An objection is generally an expression or feeling of disapproval or opposition. In court, an objection is a reason for disagreeing with some introduction of evidence. 3  In most courts, the reasons and protocols for various objections are set forth in codified rules of evidence; however, the procedures in immigration courts are not so clearly defined since the Federal Rules of Evidence (F.R.E.) are not strictly applied in immigration courts. The rules of evidence applicable to criminal proceedings do not apply to removal hearings. Relevance and fundamental fairness are the only bars to admissibility of evidence in deportation cases. 4  Immigration courts are creatures of statute. They were created under the Immigration & Nationality Act (INA) as part of the Department of Justice (DOJ), specifically the Executive Office for Immigration Review (EOIR). The EOIR has a Practice Manual as well as guidance memoranda. 5  The trials are before the bench (with no jury) and a Digital Audio Recording (DAR) is made of the proceedings. Lawyers conduct direct and cross examinations and sometimes — but not often enough — make objections. The F.R.E. can provide some guidance in immigration court practice, although immigration proceedings are not bound by the strict rules of evidence. 6  The relevant F.R.E. citation for each objection has been included. Objections to questions must first be made at the trial court level, because if the objection is not made there, an argument based on that objection cannot be asserted on appeal. 7  In immigration court, as in other courts, evidentiary objections must be made in a timely fashion, and the grounds must, therefore, be identified with particularity. 8
The purpose of this article is to discuss verbal objections in immigration court removal/deportation proceedings. It is notan exhaustive and limiting list. It is merely a discussion of the main fourteen objections out of many potential objections that generally make the most sense in immigration court proceedings. This article does not include any objections based upon the potential mental capacity of a witness. The EOIR has extensive criteria for dealing with witnesses that exhibit such issues and that is well beyond the scope of this discussion. 9  Further, unlike many articles providing a “hip pocket” guide to objections at a trial court level, this article does not examine hearsay objections since hearsay is allowed in immigration court unless its use is fundamentally unfair. 10  The general rule with respect to evidence in immigration proceedings is that admissibility is favored, as long as the evidence is shown to be probative of relevant matters and its use is fundamentally fair so as not to deprive the alien of due process of law. 11
Since I was inspired to write this guide by the line from Shakespeare’s Hamlet where Queen Gertrude comments that a character in a play protests too much, I discuss each of the fourteen objections as though they were part of Shakespeare’s next best known medium, the fourteen line sonnet. 12  A Shakespearean sonnet has three four-line quatrains and then a two line “volta,” or twist, at the end. I have divided up three general groups of objections and saved the best two for the end.

II. The First Quatrain — Questions that Elicit an Organic Response

Argumentative

DISCUSSION: This is not an objection to opposing counsel making a good point. It should be used when the questioning attorney is not asking a question and is instead making an argument of law or application of law that should be argued in summation. It is only valid when the witness is not being asked a question that he or she can properly answer.
F.R.E. Reference: Argumentative (611(a))
RESPONSE: “Your Honor, I am testing the testimony of this witness.” 13

Form

DISCUSSION: An objection that the “form” is improper is a generalization; it is a sort of “catch-all” when the sense is that there is something wrong with a question. The objection is generally dealt with by a direction to counsel to rephrase. The best objections to “form” should state the specific issue.
RESPONSE: “Your Honor, may counsel be requested to inform the court in what specific way is the form of my question insufficient, so that I can remedy any problem?” (Then, when informed, restate the question to eliminate the bad form.)

Compound Question/Double Question

DISCUSSION: The question is really two questions posed as one. This objection should only be used when the question is misleading and the answer could be misconstrued by the jury.
F.R.E. Reference: Compound (611(a))
RESPONSE: Separate the question into the two parts.

Confusing/Vague/Ambiguous

DISCUSSION: Confusing/vague/misleading/ambiguous are all words that convey the objection that the question is not posed in a clear and precise manner so that the witness knows with certainty what information is being sought.
RESPONSE: “Your Honor, I can restate that question.”

Counsel is Testifying/Misstates Evidence/Misquotes Witness/Improper Characterization of Evidence

DISCUSSION: Basically, in immigration court, this is when a lawyer is leading his or her own witness on direct or deliberately misstating facts on cross. The immigration judge has inherent power to administer the trial so that it is fair. The value of making this objection is to both wake up the witness to pay attention and not mindlessly answer the question, and also to call the attention of the immigration judge to the fact that the earlier testimony was different.
RESPONSE: “Your Honor, it is not a misstatement, and certainly the court and jury have heard the evidence.” If the issue is counsel testifying, then, depending on the type of question, the best response is to revert back to non-leading who, what, where, when, how and why questions.

Narrative

DISCUSSION: This type of objection in immigration court is really only useful with expert witnesses. The point being that the immigration judge wants to hear from the respondent in a general narrative form, since so much of the respondent’s case will depend upon whether the immigration judge finds him or her credible. However, objecting to a long narrative by an expert witness has the advantage of preventing an expert witness or other verbally gifted witness from captivating the attention of the immigration judge.
RESPONSE: “Your Honor, this simply asks for a short description of the expert’s methodology.”

III. The Second Quatrain — Questions Based on What Has Happened in Court

Assumes Facts Not in Evidence

DISCUSSION: Facts which are not in evidence cannot be used as the basis of a question, unless the immigration judge allows the question “subject to later connecting up.” Generally, in the interest of good administration and usage of time, the immigration judge may allow the missing facts to be brought in later.
RESPONSE: “Your Honor, we will have those facts later in the case, but this witness is here now and it is the best use of time to ask that question now.”

Beyond The Scope of Direct/Cross/Redirect Examination

DISCUSSION: The testimony sought was not covered by the opposing counsel while questioning the witness and is not relevant to any of the previous issues covered. In the testimony of an expert, the scope of what is within the direct examination is not limited to the exact items the expert talked about. Because the expert is an expert in an entire field and is there to explain items in the field of endeavor, the scope of direct is usually understood to be everything in the expert’s field of knowledge that bears on the case in issue.
F.R.E. Reference: Beyond Scope (of Direct, Cross) (1002).
RESPONSE: “Your Honor, this is within the scope of the direct examination (cross-examination) because [explain].”

Speculative

DISCUSSION: The witness does not have first-hand knowledge of the fact about which he or she is testifying. Greater freedom is allowed with expert witnesses, but still the expert is limited by Rule 702 strictures. Expert witnesses are allowed in immigration court proceedings. 14
F.R.E. Reference: Speculation (602; 701)
RESPONSE: “Your Honor, this is an expert giving an expert opinion within the scope of her expertise.”

Foundation/Lack of Personal Knowledge

DISCUSSION: The predicate evidence has not been entered that would make this evidence admissible. This is a good objection to make when the evidence about to come in is objectionable in some way. The objecting attorney must identify what is necessary to correct the lack of foundation for the deponent to answer. 15  If the witness is a layperson, the usual foundation objection is a lack of showing that the witness has personal knowledge of the facts which the question seeks. If the witness is an expert, the usual foundation objection is a lack of showing that the expert is qualified to give the opinion sought. A (non-expert) witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but not must, consist of the testimony of the witness. With some qualifications, experts can testify to facts they used in their process of building an opinion, even if they do not have personal knowledge of the facts supporting the opinion.
F.R.E. Reference: Rule 602, 703; Lack of Foundation (602; 901(a))
RESPONSE: [Establish by preliminary questions that the person has actual personal knowledge.]

IV. The Third Quatrain — Imagery: Questions Based On Rules

Best Evidence Rule

“OBJECTION: Your Honor, this is not the best evidence. The original document is the best evidence.”
DISCUSSION: This objection can be used when the evidence being solicited is not the best source of the information. 16 It usually occurs when a witness is being asked a question about a document that is available to be entered into evidence. The document should be entered as proof of its contents. There are three aspects to the “Best Evidence Rule.” The first aspect is the one most often invoked: ordinarily a non-expert witness is not allowed to describe what is in a document without the document itself being introduced into evidence. Put the document into evidence first, and then have the lay witness talk about what is in it. The second aspect is requiring the original document to be introduced into evidence instead of a copy — if the original is available. Requiring the original document (the best evidence) to be available for examination insures that nothing has been altered in any way. The original document is not always available, especially in cases where a respondent may be fleeing persecution/prosecution. The third aspect is a summary of voluminous documents. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
F.R.E. Reference: Rules 1002, 1003, 1006.
RESPONSE: Dependent on the aspect of the Best Evidence rule involved in the objection: [Offer the document into evidence] [“Your Honor, this is admissible as a copy under Evidence Rule 1003”] [“Your Honor, this is a summary admissible under Evidence Rule 1006”].

Opinion

DISCUSSION: An improper lay (non-expert) opinion is when a witness is giving testimony that does not require an expertise, but is still an opinion that does not assist the jury in its understanding of the case. In regard to an expert, this objection is made to the competence of the expert due to the inability of the expert to pass the voir dire requirements for experts. If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized expert knowledge.
F.R.E. Reference: Rule 701, 702.
RESPONSE to Objection Regarding Expert: “Your Honor, the witness is an expert and entitled to draw a conclusion.”

Privileged Communication

DISCUSSION: A privilege is a right of an individual not to testify.
Some general privileges are:
  • Attorney-Client 17
  • Attorney Work Product
  • Husband-Wife 18
  • Mental Health Records 19
  • Physician-Patient
  • Psychotherapist-Patient
RESPONSE: “Your Honor, the matter is not privileged because….”

Public Policy

DISCUSSION: The objection regarding public policy does not consist of an optional right of an individual not to testify. The objection based on public policy refers to a non-optional class of evidence that cannot be introduced, no matter that the person who holds the evidence wants to testify. Subjects forbidden by state and federal law are wide:
  • Medical Expense Payments. Evidence of the payment of medical expenses to show liability for negligence leading to the medical expenses is inadmissible.
  • Medical Review Records. Most states forbid discoverability or admissibility of the records of a medical review committee of a hospital. It is a legislative policy decision to promote the ability of a hospital to discover medical malpractice above that of the injured person to discover the malpractice.
  • Parole Evidence Rule. The “parole evidence rule” has long been a rule of law in the English speaking world. In the absence of fraud or mutual mistake, oral statements are not admissible to modify, vary, or contradict the plain terms of a valid written contract between two parties.
  • Witness is Attorney. Ethical rules prohibit a lawyer from serving simultaneously as a witness and an advocate. Generally, a party’s lawyer who attempts to testify is subject to having to choose between being a witness or continuing as a lawyer in a case.
F.R.E. Reference: 409
RESPONSE: [Depends on the statute or rule involved.]

V. The Couplet — The Volta: The Takeaway, Most Important Objections

Leading on Direct Examination

DISCUSSION: The question on direct suggests an answer. This is (1) not an objection on cross, and (2) actually allowed in some circumstances. The important factor is not whether the question is leading, irrelevant, or without foundation, but rather whether the answer would assist the immigration judge in formulating his or her opinion. The special inquiry officer should weigh this objective along with his obligation to keep the record within bounds when ruling upon objections made by either counsel for the alien or the trial attorney. 20  The problem with a leading question is that the question itself suggests the answer that the examiner wants to have. A leading question often, but not always, can be answered with a “yes.” To encourage witnesses telling facts in their own way, leading questions are not allowed on direct examination when an attorney is examining his/her own friendly or neutral witness. When an attorney has called a hostile witness (which may be someone other than the adverse party), leading questions are allowed in direct examination. Leading questions are always proper in cross-examinations.
F.R.E. Reference: Leading (611(c))
RESPONSE: “Your Honor, this question is only preliminary to move us quickly to the matters in issue.” OR “Your Honor, the witness is a hostile witness.” Depending on the type of question, the best response is often to revert back to non-leading who, what, where, when, how and why questions. 21

Rule 403 (Undue Waste of Time or Undue Prejudice/Immaterial/Irrelevant/Repetitive/Asked and Answered/Cumulative/Surprise)

DISCUSSION: The argument is that the evidence being introduced is highly prejudicial to your client and this prejudice far outweighs the probative value. An objectionable piece of evidence is one that not only hurts your case but is also not sufficiently relevant to the merits of your opponent’s case to be let in.
In immigration court, all relevant evidence should be admitted. 22  Determining “probative value” or “weight” is at the discretion of the immigration judge. 23  The amount of “unfair prejudicial effect” also is determined by the judge. The word “unfair” is the key. In determining whether to exclude evidence, immigration judges should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.
F.R.E. Reference: More Prejudicial Than Probative (401–403); Non-responsive (611a).
RESPONSE: “Your Honor, the exclusion of relevant evidence for unfairness is an extraordinary remedy. There is nothing unfair about this evidence.”
Do not be afraid to object in immigration court. The Federal Rules of Evidence are not strictly followed; however, evidence must be relevant and fundamentally fair. If the evidence is not, no protest is too much.

Footnotes

 1 William Shakespeare, Gertrude to Hamlet, “The lady doth protest too much, methinks.”
 2 Dorothy A. Harbeck is the Eastern Regional Vice President of the National Association of Immigration Judges (NAIJ). The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of the NAIJ. This article is solely for educational purposes, and it does not serve to substitute for any expert, professional and/or legal representation and advice. Judge Harbeck is also an adjunct Professor of Law at Seton Hall University School of Law in trial skills.
 7 See Matter of Edwards, 20 I. & N. Dec. 191, 196–197 n.4 (BIA 1990) (objections not lodged before the immigration judge are not appropriately raised first on appeal).
 8 Thus, a party who fails to raise a timely and specific objection to the admission of evidence generally does not preserve such an objection as a ground for appeal. Matter of Lemhammad, 20 I. & N. Dec. 316, 325 (BIA 1991); see also Fed. Rule of Evidence 103(a)(1). See United States v. Adamson, 665 F. 2d 649, 660 (5th Cir. 1982); United States v. Arteaga-Limones, 529 F. 2d 1183, 1198 (5th Cir. 1976). See also 8 C.F.R. § 1240.10(a)(4) (the immigration judge shall “advise the respondent that he or she will have a reasonable opportunity to examine and object to the evidence against him or her.”).
 13 The concept of suggesting a lawyer’s response to a judge after the judge has ruled on the objection was suggested to this author by the work of Leonard Bucklin from his Building Trial Notebooks series (James Publishing). Mr. Bucklin is a Felllow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate’s Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements. On the other side of the table, Mr. Bucklin has been placed in Best’s Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His training materials have been used by the New Jersey Institute of Continuing Legal Education in basic skills classes.
 14 Matter of D-R-, 25 I. & N. Dec. 445 (BIA 2011). An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the immigration judge to understand the evidence or to determine a fact in issue. The “spirit of Daubert” is applicable in immigration court. See Pasha v. Gonzales, 433 F. 3d 530 (7th Cir. 2005) (discussing the rubric of expert testimony and referencing the seminal expert report case under the Federal Rules of Evidence, Daubert v. Merrill Pharmaceuticals, 509 U.S. 579 (1993)). The immigration judge has the discretion to exclude expert testimony. Matter of V-K-, 24 I. & N. Dec. 500, fn. 2 (BIA 2008); Akinfolarin v. Gonzales, 423 F. 3d 39, 43 (1st Cir. 2005).
 16 In the Matter of M-, 5 I. & N. Dec. 484 (BIA 1953) (failure to produce reports of Communist Party activity made by the Government witness to the police department is not a violation of the best evidence rule where the sole issue is whether the respondent was a Communist Party member. Such reports did not create Communist Party membership but reflected the witness’s report of such membership; they were not used by the witness or the Government in the hearing; and there was no showing that they were relevant for the purpose of impeachment).
 17 See generally Immigration Court Practice Manual, Chapter 2, Sec. 2.3(d); Matter of Velazquez, 19 I. & N. Dec. 384(BIA 1986); Matter of Athanasopoulos, 13 I. & N. Dec. 827 (BIA 1971) (finding that attorney-client privilege was lost when the representative was in pursuit of a fraudulent claim); see also Ann Naffier, Attorney-Client Privilege for Non-Lawyers? A Study of Board of Immigration Appeals-Accredited Representatives, Prilege, and Confidentially, 59 Drake L. Rev. 584(2011).
 18 Matter of Gonzalez, 16 I. & N. Dec. 44 (BIA 1976); Matter of B-, 5 I. & N. Dec. 738 (BIA 1954).
 19 Matter of B-, 5 I. & N. Dec. 738 (BIA 1954). (The testimony of a physician of the United States Public Health Service in a deportation hearing is competent and not privileged since he is performing a duty provided by applicable law and regulations and the ordinary relationship of physician and patient does not exist).
 21 Dorothy Harbeck, The Commonsense of Direct and Cross Examinations in Immigration Court, 304 New Jersey Law. Mag. (2017) (NAIJ capacity); Dorothy Harbeck, Terms so Plain and Firm as to Command Assent: Preparing and Conducting Optimal Direct Examination of the Respondent, Fed. Law. 13 (Jan./Feb. 2017) (primary author, NAIJ capacity).

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Thanks for sharing, Judge Harbeck.  “Good stuff” as usual! And, for those of you taking “Immigration Law & Policy” with me at Georgetown Law this summer, Judge Harbeck will be a “guest lecturer” at our June 14 class (along with Jones Day’s Worldwide Pro Bono Director Laura Tuell).

 

PWS

05-29-18

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