RIEFINGS~ - University of Houston Law Center BRIEFINGS application and prepare for the individual hearing and the consequences that it may have on stopping the asylum clock (see nn

~,~J

1 From the Publisher of INTERPRETER RELEASES

RIEFINGS~ PracticalAnalysisoflmmigrationandNationalitylssues

PREPARING AND PRESENTING AN ASYLUM CASEIN IMMIGRATION COURT

ROBERT H. ETNYRE, JR.*

This Briefing principally addresses the pro-cedure and evidence for presenting an asylumclaim in immigration court as well as the prep-aration of the applicant and the case in light ofthis procedure and evidence. It does not considerthe substantive law of asylum, withholding ofremoval, or relief under the Convention AgainstTorture. For an analysis of this substantive law,there are a number of publications, among them,Anker, Law of Asylum in the United States, ~~ 4:1to 7:45 (Thomson West 2012), Germain, AsylumPrimer, 6th Ed., pp. 23-158 and 291-311 (Ameri-can Immigration Lawyers Association 2010), andVail, Essentials of Removal and Relief: Repre-senting Individuals in Immigration Proceedings,pp. 137-183 (American Immigration Lawyers As-sociation 2006).

This Issue in Brie f

IMMIGRATION COURT PRACTICEMANUAL

MASTER CALENDAR HEARINGS

DOCUMENTATION MATTERS PRIOR TO THEINDIVIDUAL HEARING

NONDOCUMENTATION MATTERS PRIOR TOTHE INDIVIDUAL HEARING

INDIVIDUAL HEARING

APPEALS

REFERENCES

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IMMIGRATION COURT PRACTICEMANUAL

Prior to July 1, 2008, the practice in immigra-tion courts was controlled in part by the local rulesof immigration courts for separate geographicalareas. For example, unless otherwise directed byan individual immigration judge for a particularcase, much of the practice in Houston itnrnigra-tion courts was governed by the 2000 Edition oftheir local rules. However, on July 1, 2008, the Im-rnigration Court Practice Manual, prepared by theOffice of the Chief Immigration Judge of the Ex-ecutive Office for Immigration Review, went intoeffect and now controls the practice in all U.S. im-migration courts,l just as a lawyer cannot practicein a U.S. federal district court withouf consultingthe Federal Rules of Civil or Criminal Procedure,a lawyer practicing in any U.S. immigration courtmust consult and follow the defailed requirementsof the Immigration Court Practice Manual. Thecurrent version of the Immigration Court PracticeManual can be found on the website of the Execu-tive Office for Immigration Review (EOIR).2

Robert Etnyre is an attorney at Royston, Rayzor, Vickery f~Williams, L.L,P, in Houston, Texas, whose practice focuses onthe trial and appeal of maritime and insurance coverage cases.Beginning in 1987, he began representing asylum seekers ona pro Bono basis, and, over the years, he has represented morethan 100 asylum. applicants in federal immigration courts, atThe Board of Immigration Appeals, and before federal appel-late courts. This Briefing has been written with the hope thatit may benefit the many lawyers in the U.S. who representasylum seekers on a pro Bono basis. The author would liketo thank Nancy Falgout and the late Joe Vail for all of theiradvice, guidance, and support on asylum cases over the pastmany years,

NO. 12-08 August 2012

AUGUST 2012

MASTER CALENDAR HEARINGS

In immigration courts, master calendar hear-ings are utilized to consider a variety of mattersprior to an individual or "merits" hearing. Withrespect to asylum cases, there usually is one butsometimes two or more master calendar hearings.The first master calendar hearing generally ad-dresses some or all of the issues described below innn. 7-77 and accompanying text (First Master Cal-endar Hearing). Also, at Appendix M, the Immigra-tion Court Practice Manual has provided a sampleoral pleading which sets out the matters that maybe addressed at the first master calendar hearing.Although not presently used by many of the im-migration courts, at Appendix L, the IrrunigrationCourt Practice Manual additionally contains asample written pleading for use at the first mastercalendar hearing. In a defensive asylum case wherean asylum application has not yet been filed, a sec-ond master calendar hearing often is held to file theasylum application before the immigration judgein open court. Additional master calendar hearingssometimes are held to address other specific mat-ters prior to the individual hearing.

Preparation of the Applicant for the FirstMaster Calendar Hearing

In view of the matters that likely will be ad-dressed at the first master calendar hearing, theapplicant's lawyer should meet with the applicantat least two or three times before the hearing toconsider and discuss the following issues if appro-priate for the particular case.

(1) consideration of whether a motion to trans-fer the case to a more convenient geographi-cal location should be filed (see nn. 15-23and accompanying text for a further discus-sion of matters regarding change of venue);

(2) an overview of the asylum process in iinmi-gration court and any necessary appeals;

IMMIGRATION BRIEFINGS

(3) a detailed review of the facts pertaining tothe applicant's asylum claim;

(4) a consideration of whether any witnessesother than the applicant, including expertwitnesses, will be needed (see nn. 132-134and accompanying text and nn. 259-266and accompanying text regarding the se-lection of expert witnesses);

(5) a consideration of all individual docu-mentation that will be required (see nn.122-131 and accompanying text (Individu-al Documentation) for a further discussionof this issue);

(6) a determination of the accuracy of the fac-tual allegations in the notice to appear andwhether it was properly served on the ap-plicant (see nn. 24-26 and accompanyingtext (Pleading to the Allegations) fora fur-ther discussion of this matter);

(7) a determination of whether any additionalrelief, particularly voluntary departure,should be sought beyond asylum, with-holding of removal, and relief under theConvention Against Torture (see nn. 28-32and accompanying text for a further dis-cussion regarding voluntary departure);

(8) a determination of the language in whichthe applicant should testify (see nn. 35-36and accompanying text for informationpertaining to this issue);

(9) if the asylum application already has beenfiled, a determination of whether the asy-lum application ,needs to be amended (seenn. 37-42 and accompanying text (Submis-sion ofAsylum Application) for additionalinformation regarding amended asylumapplications);

(10) a consideration of the amount of timeneeded to properly prepare the asylum

This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was notnecessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering Iegal or other professional advice andthis publication is not a substitute for the advice of an attorney, If you require legal or other expert advice, you should seek the services of a competent attorney orother professional.

Immigration Briefings CUSPS 002-557) is issued monthly 12 times per year;published and copyrighted by West. Address correspondence to: Editor, 50Broad St. East, Rochester, NY 14694. For subscription information: call (800)227 -9428, or write West, Credit Order Processing, 610 Opperman Drive, PO Box64833, St. Paul, MN 55164-0833. Periodical Postage Paid at St. Paul, MN.POSTMASTER: Send address changes to I mmigration Briefings, 610 OppermanDrive, PO Box 64833, St. Paul, MN 55164-0833.

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In response to IRS Circular 230 requirements, Thomson Reuters advises that any discussions of Federal tax issues in its publications and products, or in third-party pu6iications and products on its platforms, are not intended to be used and may not in fact be used to avoid any penalties under the Internal Revenue Code,or to promote, market, or recommend any transaction or subject addressed therein.

O 2012 Thomson Reuters2


application and prepare for the individualhearing and the consequences that it mayhave on stopping the asylum clock (seenn. 50-77 and accompanying text fora fur-ther discussion of the asylum clock);

(11) a discussion of when the applicant may beentitled to work authorization, particularlyin light of any delays that maybe needed tochange venue or prepare for a master hear-ing or individual hearing (see nn. 50-77 andaccompanying text for a further discussionof the work authorization issue);

(12) a preparation of the Notice of Entry of Ap-pearance as Attorney or Representativebefore the IiYUnigration Court (Form EOIR-28)3 and Notice of Entry of Appearance asAttorney or Representative (Form G-28)

(13) a completion of a Freedom of InformationAct (FOIA) request to the Department ofHomeland Security (DHS) (see nn. 110-121and accompanying text for a further dis-cussion of FOIA requests);

(14) a discussion of the need for the. appli-cant to notify the applicant's attorney ofany change of address within a few daysof moving and, if necessary, the comple-tion of the Change of Address form (FormEOIR-33/IC)5 (see nn. 12-14 and accompa-nying text for additional information re-garding changes of address);

(15) a determination of the date when the one-year deadline for filing an asylum appli-cation expires to make sure that the ap-plication is filed by the deadline and, ifnecessary, whether any exceptions to theone-year deadline are available (see nn.37-42 and accompanying text for a furtherdiscussion regarding the filing of asylumapplications); and

(16) the need to be on time for the master cal-endar hearing and all other hearings (seenn. 254-255 and accompanying text for afurther consideration of this issue).

If the applicant's attorney is unable to be fullyprepared for the first master calendar hearing, heor she usually can appear on the scheduled date,along with the applicant, and request additionaltime for attorney preparation, which typically isgranted. The request for additional time to preparefor the master calendar hearing, however, likelywill result in the asylum clock being stopped.b


AUGUST 2072

First Master Calendar Hearing

Appearances. Appearance of the applicant'sattorney by telephone at a master calendar hear-ing can be requested by oral or written motion ifthe applicant's attorney is from out of town, hasa legitimate and unavoidable scheduling conflictwith another court, or has some other reason.' Theapplicant's attorney must appear in person unlessthe motion to permit telephonic appearance hasbeen granted.$ Use of a cell phone for a telephonicappearance is not allowed unless expressly per-mitted by the immigration judge.9 If the appli-cant's attorney is allowed to appear telephoni-cally, the applicant still must be present in personunless his or her appearance has been waived bythe immigration judge,'o

Advisals. The iizu~nigration judge is required toadvise the applicant of the right to legal representa-tion at no cost to the government, the right to exam-ine and cross-examine witnesses, the right to pres-ent and object to evidence, the availability of freelegal services, and the consequences of knowinglyfiling a frivolous asylum application.11 The immigra-tion judge usually will asl< the applicant's attorneyto waive these advisals, and he or she ordinarilyshould do so as these matters can be discussed withthe applicant during the preliminary meetings.

Change of Address. An applicant is requiredto notify the immigration court within five work-ing days of any change in his or her address ortelephone number. The form to use is the Alien'sChange of Address form (Form EOIR-33/IC).1zNotification of any change in address or telephonenumber in a pleading, application for relief, mo-tion, or other communication to the immigrationcourt is not recognized.13 An applicant also is re-quired to notify U.S. Citizenship and ImmigrationServices (USCIS) within 10 days of any change ofaddress; the form to use is the Alien's Change ofAddress Card (Form AR-11).14

Motions to Change Venue. If the applicant hasmoved to a new location or has some other reasonwhy a change of venue would be appropriate, theapplicant's attorney should bring this issue to theattention of the immigration judge by written mo-tion before the first master calendar hearing or assoon as possible thereafter.

The Immigration Court Practice Manual de-scribes the required contents of a motion to changevenue as including the following: (1) the date andtime of the next scheduled hearing, (2) the ad-mission or denial of the factual allegations and

AUGUST 20]_2

charges) in the notice to appear, (3) a designationof a country of removal (which should be declinedin an asylum case for the reasons discussed in nn.33-34 and accompanying text), (4) a statementthat the applicant will be requesting asylum, andif appropriate, withholding of removal and reliefunder the Convention Against Torture, (5) the ap-plicant's new address and telephone number, ifany, and a properly completed Change of Addressform (Form EOIR 33/IC), and (6) a detailed expla-nation of the reasons for the request.ls The motionshould be filed with a cover page entitled "Motionto Change Venue" and comply with the deadlinesand requirements of filing.16 Until the motion isgranted, the applicant must appear at all hearingsas originally scheduled.l'

The factors that an immigration judge mayevaluate regarding a motion to change venue in-clude the applicant's current residence, the loca-tion of the witnesses, the administrative needsof the immigration courts, and DHS' interests.18Despite the apparent practices of some immigra-tion courts, an applicant should not be requiredto admit and concede the allegations of the noticeto appear as a prerequisite for a motion to changevenue.19 Once a change of venue has been grant-ed, the receiving immigration judge ordinarily isrequired to follow any previously issued ordersbased on the law of the case doctrine.20

If an applicant's motion to change venue isgranted, the asylum clock likely will be stoppedfrom the date when the motion was granted untilthe date of the next hearing.21 At the next hearing inthe new venue, the new immigration judge may re-start the asylum clock or keep it stopped, depend-ing on the reason for the adjournment.22 Becausethe granting of an applicant's motion to changevenue likely will cause the asylum clock to stop, theapplicant and his or her attorney should discuss theadvantages of a more convenient forum and the po-tential disadvantage of the delay in receiving workauthorization and then decide whether a motion tochange venue should be filed.23

Pleading to the Allegations. Prior to the firstmaster calendar hearing, in most cases other thanthose proceeding under expedited removal, theapplicant will have been served with a notice toappear by the DHS. At the master calendar hear-ing, the applicant will be asked to admit or denyservice of the notice to appear.

In asylum proceedings, the notice to appeartypically will contain four factual allegations:(1) the applicant is not a citizen or national of

4


the United States, (2) the applicant is a native ofthe country from which he or she is fleeing and /:~ `.is a citizen of that country, (3) the date, manner,

~ ;

and place of the applicant's entry into the UnitedStates, and (4) the reason that the applicant is notauthorized to remain in the United States. Basedon these allegations, a charge of removability willbe made under the pertinent section or sections ofthe Immigration and Nationality Act (INA).

The applicable regulation requires the appli-cant to "plead to the notice to appear by statingwhether he or she admits or denies the factual al-legations and his or her removability under thecharges contained therein."24 Typically, if the ap-plicant admits the factual allegations, he or she isfound to be removable as charged. Sometimes, thesecond, third, or fourth allegations contained inthe notice to appear are factually incorrect. Thus,during one of the conferences with the applicantprior to the first master calendar hearing, the ap-plicant's lawyer should go over each one of theallegations and review the documentation provid-ed by the applicant to confirm the accuracy of theallegations. If the allegations are incorrect in anyrespect, they should be denied at the master calen-dar hearing. Similarly, if the charge of removabil-ity cites an incorrect section of the INA, it shouldnot be conceded.

For applicants who were not admitted or pa-roled into the United States, the government hasthe burden of establishing alienage.~s In most asy-lum cases, the government meets this burden by(1) the applicant's admissions at the master cal-endar hearing, (2) in an affirmative case, by thesworn information contained in the applicant'spreviously filed asylum application, or (3) by theadmission into evidence of the Record of Deport-able/Inadmissible Alien (Form I-213). Thus, in adefensive asylum case where the applicant maynot want to concede alienage, the applicant's at-torney must be prepared to move to suppress theRecord of Deportable/Inadmissible Alien andthen, if necessary, request time to file a written mo-tion to suppress and/or terminate proceedings.zb

Statement of Relief Sought. If removabilityhas been established, the applicant will be askedthe forms of relief or defenses to removability thathe or she is seeking.27 Generally, the applicant willask for asylum, withholding of removal, and reliefunder the Convention Against Torture. Voluntary

departure, if available at the conclusion of the re-moval proceeding, also should be considered, andit is discussed next.

O 2012 Thomson Reuters

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`j


Voluntary Departure. Voluntary departure is~, a limited form of relief that may be available un-

der two circumstances.

First, voluntary departure generally is avail-ablebefore the conclusion of a removal proceedingif (1) no other relief, such as asylum, is requestedor if any prior request for relief, such as asylum, iswithdrawn before any grant of voluntary depar-ture, (2) the request is made prior to or at the firstmaster calendar hearing when an individual hear-ing will be scheduled, (3) the applicant concedesremovability and waives appeal on all issues, and(4) the applicant has not been convicted of an ag-gravated felony or has not engaged in terroristactivities.28 Obviously, if an applicant is pursuingan asylum claim, the first type of voluntary depar-ture should not be requested.

Second, voluntary departure generally is avail-able at the conclusion of a removal proceeding if(1) the applicant has been present in the UnitedStates for a period of at least one year before thedate that the notice to appear was issued, (2) theapplicant has the means to depart and the inten-tion to do so, (3) the applicant can establish hisor her good moral character for a period of thepreceding five years, (4) the applicant can post abond of at least $500, and (5) the applicant has notbeen convicted of an aggravated felony or has notengaged in terrorist activities.29 An immigrationjudge only can grant this form of voluntary de-parture for a period of 60 days, although this timeperiod can be extended by the district. directorfor a period of another 60 days.30 If the applicantqualifies, whether to pursue this second form ofvoluntary departure must be carefully consideredbecause of the severe consequences for an appli-cant who does not leave the U.S. within the timeperiod that has been granted.31 A full discussion ofthe advantages and disadvantages of this secondform of voluntary departure is beyond the scopeof this Briefing. The applicant's attorney thereforemay wish to review some of the commentary thataddresses this issue32 and then discuss with theapplicant whether this relief should be sought.

Designation of a Country of Removal. At themaster calendar hearing, the immigration judgewill ask the applicant to designate a country ofremoval if he or she is ordered to be removed.33

Almost always, the applicant will decline to des-ignate acountry of removal because the applicantis afraid to return to his or her home country andhas nowhere else to go. Under these circumstanc-es, the immigration judge generally will designatethe applicant's country of citizenship or national-


AUGUST 20'12

ity as the place to where he or she will be removedif relief cannot be established.34

Designation of a Language for the Individ-ual Hearing. Prior to the master calendar hear-ing, the applicant's attorney should determinethe language in which the applicant would liketo testify. If the applicant or any witnesses needto testify in any language other than English, theimmigration judge should be notified, prefer-ably at the first master calendar hearing, so thatan interpreter to be paid by the government canbe arranged by the court for the individual hear-.ing.35 If it is later determined after the first mastercalendar hearing that an interpreter is needed, awritten motion to request an interpreter shouldbe filed within the deadline established by the Im-migration Court Practice Manua1.36 For additionalissues regarding interpreters, see nn. 273-280 andaccompanying text.

Submission of an Asylum Application. If theasylum application has not yet been filed (for ex-ample, in defensive cases where there has been noaffirmative filing with the Asylum Office), the ap-plicationand one copy can be filed at the first mas-ter calendar hearing if it is completed; if the appli-cation cannot be completed by the time of the firstmaster calendar hearing, the immigration judgeusually will set a date for filing it at a second mas-ter calendar hearing as the original applicationmust be filed in open court at a master calendarhearing.37 The applicant's attorney should makesure that the second master calendar hearing isheld less than one year from the applicant's lastarrival in the United States, or the applicant maybe barred from seeking asylum38 (but not with-holding of removal or Torture Convention reliefl.

If the asylum application already has beenfiled affirmatively with the Asylum Office and thecase is referred to immigration court, it does notneed to be refiled at the first master calendar hear-ing.39 If the application needs to be amended inany respect, the applicant's attorney should notifythe immigration judge at the first master calendarhearing. The immigration judge may set a date forthe amended asylum application to be submittedin open court, although some immigration judgeswill allow an amended asylum application to befiled with the clerk. The filing of an amended asy-lum application must comply with the usual filingdeadlines of the Immigration Court Practice Man-ua1.40 The amended asylum application should beaccompanied by a cover page entitled "Amend-ment to Previously Filed Asylum Application."41

The filing of an amended asylum application will

AUGUST 201.2

not stop the asylum clock unless it will delay thedate of the individual hearing.42

Designation of Dates fox the Filing of Mo-tions, Exhibits, Witness Lists, and Briefs. A dateor dates may be set by the immigration judge forthe filing of all amended applications, motions, ex-hibits, witness lists, and legal briefs by the partiesor by each party. Immigration judges have broaddiscretion to set reasonable deadlines.43 If no datesare set, then the deadlines contained in the Immi-gration Court Practice Manual govern. Generally,as discussed further at nn. 78-81 and accompany-ing text, the Immigration Court Practice Manualrequires that all motions, exhibits, witness lists,briefs, and other papers must be filed at least 15days before the individual hearing of nondetainedapplicants, and all responses to these filings mustbe filed 10 days after the motions, exhibits, wit-ness lists, briefs, and other papers were receivedby the immigration court.`

Although immigration judges have broad dis-cretion in setting reasonable deadlines, they can-not hold that a timely filed application for asylumhas been abandoned if the applicant fails to meetthe time period for filing a brief or supporting doc-uments.45 Rather, the "proper course of action forthe Immigration Judge ... [is] to deem the respon-dent's opportunity to file these documents waivedand to determine what effect the failure to presentthem had on his ability to meet his burden of es-tablishing that he is eligible for the relief soughtand that he merits a favorable exercise of discre-tion."46 However, with respect to the applicationitself, a failure to meet its filing deadline can resultin the application being waived.47

If copies of certain supporting documents,such as identity cards, passports, membershipcards, summons, arrest warrants, birth certifi-cates, or like records are filed at a master calendarhearing, the applicant should be prepared to makethe originals available to the DHS Assistant ChiefCounsel ("DHS Attorney") present at the hearingfor possible forensic examination.48 The immigra-tion judge should note on the record when anyoriginal documents are provided to the DHS At-torney at a master calendar hearing.49

Asylum Clock and Selection of a Date for theIndividual Hearing. Two provisions of the INArelate to 180-day timeframes in connection withasylum applications. The first provision requiresthat, in the absence of exceptional circumstances,the final administrative adjudication of an asy-lum application, not including any administrative


or federal appeal, is to be completed within 180days after the date when an asylum application is /~filed.50 The second provision does not permit any ~ ~employment authorization to be issued to an asy-lum applicant prior to 180 days after the date offiling of an asylum application, although an asy-lum applicant can apply for employment authori-zation when the clock reaches 150 days.s' Any de-lay requested or caused by the asylum applicantis not counted as part of these time periods.5z Forpurposes of this Briefing, both of these provisionsshall be referred to as "the asylum clock."

The implementation of the asylum clock by theEOIR and USCIS has created a number of prob-lems for applicants that delayed the issuance ofwork authorization, sometimes during the entirependency of the asylum application in immigra-tion court.53 In a practice advisory issued by theLegal Action Center of the American ImmigrationCouncil, the problems with the EOIR's interpreta-tions of the asylum clock have been analyzed indetail.54 The problems identified by the Legal Ac-tion Center include the following: (1) the EOIR im-properly has determined that the applicant causedthe delay, (2) the EOIR has failed to restart theclock, (3) the clock improperly has been stoppedon a permanent basis, and (4) the EOIR's policyfor resolving clock issues has been unclear or in-effective.55 Because of ongoing issues relating tothe asylum clock, the Legal Action Center filed anationwide class-action lawsuit against the EOIR,USCIS, and others in a federal court in Seattle,Washington, and the lawsuit remains pending.56

On November 15, 2011, the EOIR issued anOperating Policies and Procedures Memorandum(OPPM) regarding the asylum clock that maysolve some of the problems that have plagued ap-plicants.57 Some of the more salient features of theOPPM are the following.

With respect to the issue of when the asylumclock starts, when an asylum application has beenfiled with the USCIS (an "affirmative" applica-tion), the OPPM provides that the EOIR will startthe clock when the complete application is filed.58If asylum is not granted by the Asylum Office andthe claim is referred to immigration court, the asy-lum case will follow one of two tracks. If less than75 days have elapsed on the asylum clock as of thedate of the referral, the case is treated as an "expe-dited asylum case," is subject to the EOIR's 180-day adjudication deadline, and is to be completedwithin 180 days after the application was filed, notincluding any delays requested or caused by theapplicant.59 If more than 75 days have elapsed on


f`


the asylum clock as of the date of the referral, the~~ asylum case is not treated as an "expedited case"and is not subject to the EOIR 180-day deadline,and the asylum clock will run and stop as usual.bo

When an asylum application is filed in immigra-tion court (a "defensive" application), the EOIRstarts the clock when the applicant files a completeasylum application in open court at a master cal-endar hearing.bl

With respect to the issue of managing the asy-lum clock in immigration court, during the pen-dency of the asylum claim, the OPPM providesthat, following each hearing, the clock will run orstop depending on the reason that the hearing wasadjourned.62 If the hearing was adjourned becauseof EOIR- or DHS-related delays, then the clockruns until the next hearing.63 If the hearing wasadjourned because of delays attributable to the ap-plicant or his or her attorney, then the clock stopsrunning until the next hearing; even if the clock isstopped because of a delay attributable to the ap-plicant, it will restart at the next hearing unless an-other delay caused by the applicant occurs.64 Theimmigration judge is responsible for determiningthe reason that each hearing is adjourned, and thereason is required to be stated on the record.bs

Applicant-caused delays in immigration courtare described in the OPPM as including the fol-lowing: (1) an applicant's request for more time toretain an attorney or representative,bb (2) a requestby an applicant's attorney for additional time toprepare for a master calendar hearing,b' (3) an ap-plicant's refusal to accept an expedited hearingdate if the asylum case is labeled an "expeditedasylum case,"68 (4) a grant by the immigrationjudge of a motion for continuance filed by the ap-plicant,69 and (5) a grant of a motion to changevenue filed by an applicant.70

If an applicant is of the view that the asylumclock in his or her case has been incorrectly cal-culated, incorrectly stopped, or incorrectly deter-mined, the OPPM sets forth a procedure for chal-lenging the asylum clock.71 The applicant shouldnot file a motion with the immigration court, andthe immigration judge should not issue any ordersregarding the asylum clock since the asylum clockis considered by the EOIR to be an administrativefunction.72 Rather, the issue can be raised duringa hearing before the immigration judge, and thejudge is required to address the issue on the recordwith the parties.73 If these clock issues cannot beaddressed during a hearing, they can be raised bya letter to the court administrator in writing, andthe letter should include a detailed explanation of


AUGUST 2012

why the applicant is of the opinion that the clockis incorrect.74 Following a review of the record ofproceedings, the EOIR's electronic database, andany recorded hearing, the court administrator, af-terconsultation with the immigration judge if nec-essary, will respond by letter or email if the clockis accurate or take corrective measures if the clockis inaccurate.75 If the applicant is not satisfied thatthe clock issue was correctly addressed, he or shethen can contact the Assistant Chief Immigrationjudge in writing.76 The foregoing procedure doesnot appear to address the situation where the asy-lum clock was correctly calculated and stopped,but the reason for the applicant-caused delayno longer exists. Under these circumstances, theclock cannot be restarted until the next hearingbefore the immigration judge, and, given the de-lays in obtaining hearings in many immigrationcourts due to backlogs, a considerable amount oftime can elapse before the asylum clock can againbe started."

The asylum clock can create a tension betweenthe applicant's need to work and the applicant'sneed for a more convenient forum or the need tobe properly prepared for a master calendar or in-dividual hearing. In view of this tension, beforeundertaking any action that will or could stopthe clock, the applicant's attorney should discusseach action before it is taken with the applicantand advise the applicant of the likely effect thatthe action will have on delaying the date for ap-plying for work authorization. That waq, the ten-sion can be carefully assessed with the applicantto determine whether the potential action shouldbe taken.

DOCUMENTATION MATTERS PRIOR TOTHE INDIVIDUAL HEARING

Filing Deadlines in the ImmigxationCourt Practice Manual

Deadlines. As noted in nn. 1-2 and accompa-nying text, as of July 1, 2008, the previously exist-ing local rules for various U.S. immigration courtswere no longer effective and were replaced by theImmigration Court Practice Manual. The Immi-gration Court Practice Manual provides that, un-less otherwise specified by the immigration judgein a particular case, for individual hearings in-volving nondetained applicants, any witness lists,motions, briefs, exhibits, and other papers must befiled at least 15 days in advance of the hearing.78Any responses to these papers must be filed with-in 10 days after these papers were filed with the

AUGUST 2012

immigration court.79 The same deadlines apply toany written filings for a master calendar hearing.ao

For detained applicants, the deadlines are speci-fied by the immigration court.81

Computation. The method of computing thefiling deadlines is described in detail in the Im-migration Court Practice Manual.82 For example,with respect to the 15-day deadline for the filingof exhibits, motions, witness lists, briefs, and otherpapers for an individual hearing, the day of thehearing counts as "day 0," and the day before thehearing counts as "day 1." Although Saturdays,Sundays, and legal holidays are counted, if thedeadline falls on a Saturday, Sunday, or legal holi-day, the deadline is construed to fall on the nextbusiness day.83 Regarding the 10-day deadline forthe filing of responses, the day that the filing isreceived by the immigration court is counted as"day 0," and the next day counts as "day 1."84 Re-fer to ~ 3.1(c) of the Immigration Court PracticeManual for the computation of filing deadlinesfollowing hearings and following the decisions ofimmigration judges.

Extensions. Although immigration judgeshave the authority to grant motions for extensionof all filing deadlines that are not set by regulation,under the Immigration Court Practice Manual, adeadline only can be extended when an immigra-tion judge grants a written motion for extension.ssMotions for extension must be received on or be-fore the original filing deadline, and they are notfavored.86 The contents of a motion for extensionare outlined in the Immigration Court PracticeManual.87 A motion to accept an untimely filingcan be considered by an immigration judge, butthe motion must explain the reasons for the latefiling, show good cause for the delay, and be sup-ported by affidavits and declarations under thepenalty of perjury.88

Receipt Rule. The immigration courts do notfollow the "mailbox rule" where pleadings, mo-tions, and other documents are deemed filedwhen mailed. Rather, a document is not consid-ered filed in immigration court until it actually hasbeen received by the immigration court89 throughthe U.S. Postal Service, by courier or overnight de-livery service, or by hand delivery.90 Any postal ordelivery delays will not excuse untimeliness in fil-ing except in rare circumstances.91 The date stampplaced on the filed document controls the deter-mination ofthe date when the document was filedabsent persuasive evidence to the contrary.92 As instate or federal court, it is always a good practiceto have a conformed copy of the filed document


date stamped at the time of filing.93 If the filingis by mail or overnight delivery service, the con- ( ?~,formed copy of the filing must be accompanied by ~a self-addressed stamped envelope or comparablereturn delivery packaging that has been prepaid,94

Service

A "proof of service" on the opposing partymust be attached to all documents filed with theimmigration court. A sample proof of service formis provided in the Immigration Court PracticeManual at Appendix G. The Immigration CourtPractice Manual allows for service by hand deliv-ery, U.S. mail, or commercial courier like FederalExpress.95 Service by hand delivery is completeupon delivery. Service on a party by U.S. mail orcommercial courier is complete when the filing isdeposited.96 In other words, unlike the deadlinefor filing with the immigration court, for serviceon the DHS District Counsel's Office, the Immi-gration Court Practice Manual follows the "mail-box rule."

Translations

All documents filed in immigration court ina language other than English must be accompa-nied by a certified English translation.97 The Im-migration Court Practice Manual requires that, inaddition to that translation, a certificate of transla-tionmust be signed by the translator and attachedto the translation and the foreign language docu-ment.98 The certificate of translation is required tostate that the translator is competent in the foreignlanguage and that the translation is true and accu-rate to the best of the translator's abilities, and thecertificate also must contain the translator's ad-dress and telephone number.99 If the certificate oftranslation does not meet these requirements, theforeign-language document and the accompany-ing translation can be excluded at the individualhearing.'oo A sample of a certificate of translationis provided at Appendix H of the ImmigrationCourt Practice Manual. Documents that have notbeen translated additionally may be excludedfrom evidence by the immigration judge.'o' Fur-

ther, any document in English by a person who

does not understand English must include a cer-

tificate of interpretation stating that the document

has been read to the author in a language that theauthor understands and that the author under-

stood the entire contents of the document beforesigning it.'oz



Asylum Application

The application for asylum and withholding ofremoval (Form I-589) can be found on the websiteof the USCIS.lo3 The form can be prepared onlineand then converted to a pdf format for printingand signing. If the appropriate boxes are checked,Form I-589 also can be used to apply for relief un-der the Convention Against Torture. All informa-tion contained in an asylum application and anydocumentation or reference reflecting that theapplicant has applied for asylum are to be main-tained as confidential by the U.S. government and,except in rare circumstances, cannot be disclosedto a third party without the written consent of theapplicant.lo4 There is no fee for filing an asylumapplication.

Form I-589 comes with instructions that aredetailed and useful, and these instructions shouldbe studied by any practitioner who has not com-pleted an asylum application for a period of time.Also, Regina Germain, in her excellent book en-titled "Asylum Primer," has many useful practicepointers for completing the asylum application.~os

Written Affidavit or Declaration of theApplicant

Beyond the asylum application, whether adetailed written document of the applicant's ex-pected testimony should be prepared is a decisionto be carefully considered in each case. There area numbex of advantages and one nnajor disadvan-tage to such a written document.

Some of the advantages are the following. First,a written document can provide the immigrationjudge with a preview of the applicant's expectedtestimony. Second, some immigration judges aremore likely to find an applicant to be credible ifhis or her testimony at the individual hearingis consistent with a detailed written document.Third, a written document can be given to expertwitnesses and other witnesses as a summary ofthe applicant's claim. Fourth, the construction ofa detailed written document usually will revealwhether additional documentation and informa-tion is needed as well as potential inconsistenciesin the case. Fifth, with the right client, a writtendocument can be used to prepare the applicant forhis or her testimony at the individual hearing.

1 The major disadvantage of a written docu--~ ment is the following. Many clients with asylum

claims have had limited formal education and/orcome from cultures that are substantially different


AucusT 2oi2

from ours.lob Also, it is well established in the psy-chiatric/psychological literature that applicants'memories can be compromised when they havebeen tortured or otherwise severely persecuted.107Under these circumstances, these applicants oftencannot retain detailed information or cannot de-scribe their stories in the chronological sequenceexpected in our culture and in most immigrationcourts. If there are even minor inconsistencies be-tween the applicant's testimony at the individualhearing and the contents of a written document,these minor inconsistencies, even though they donot go to the heart of the claim, may be a majorarea of cross-examination by the DHS Attorney orquestioning by the immigration judge. This con-cern has become even greater in light of the credi-bility determination factors contained in the REALID Act, which are discussed further in nn. 225-235and accompanying text. If, during the initial inter-views with the client, it becomes apparent that heor she will not be able to recall detailed informa-tion or will be unable to testify chronologically, awritten document ordinarily should be avoided.The essentials of the claim can be laid out in theasylum application, and then the claim can befilled in during the applicant's direct examinationat the individual hearing.

If a decision is made to prepare a detailed writ-ten document, it usually is constructed to mirrorthe anticipated direct examination as well as toaddress potential problems with the case in themost favorable light.'os

If the affidavit or declaration is written in Eng-lish by aperson who does not understand English,it must be accompanied by a certificate of inter-pretation stating that it has been translated to theapplicant in a language that he or she understandsand that the applicant stated that all of the infor-mation in the affidavit or declaration is true andcorrect.lo9

FOIA Requests

A FOIA request is not needed to review the filemaintained by the immigration court; rather, theapplicant's attorney can inspect the official recordof proceedings by contacting the local immigra-tioncourt clerk and then following the instructionsprovided by the clerk."o Officially, it is the EOIR'sposition that a FOIA request is needed to obtaincopies of the record, although "in limited instanc-es, immigration court staff have the discretion toprovide a party with a copy of the record or a por-tion of the record, without a FOIA request.""' Asa practical matter, most clerks will provide copies

AucusT 2o~z

of the asylum application, Record of Deportable/Inadmissible Alien (Form I-213) if present in theimmigration court's file, or other papers of similarlength without the need of a FOIA request.

To obtain a copy of the applicant's file fromthe DHS, it is the position of the DHS that a FOIArequest is needed."~ FOIA requests for applicantsin removal proceedings usually are required to beexpedited,113 but the Legal Action Center of theAmerican Immigration Council has noted that"even 'fast truck' processing often is untimely -the average processing time (as of June 4, 2012) is41 business days."114 The Immigration Court Prac-tice Manual specifically states that the nonreceiptof the applicant's file will not excuse a party fromany failure to meet a filing deadline,lls and, as theLegal Action Center has noted, "some [immigra-tionjudges] may deny a continuance to await FOIAprocessing."16 As a result, in its practice advisory,the Legal Action Center describes the benefits andprocedure for obtaining documents from the DHSunder the mandatory access statute117 rather thana FOIA request;118 the practice advisory thereforeshould be consulted, particularly if there is a rela-tively short time between the first master calendarhearing and the individual hearing.

If the applicant's primary concern is the needto obtain or review a Form I-213 (Record of De-portable Alien), Form I-263W (Record of SwornStatements - Witness), or Form I-870 (Record ofDetermination/Credible Fear Worksheet), an in-formal request can be made to the DHS DistrictCounsel's Office. Since these documents typicallyare no longer than a few pages, they sometimeswill be provided by the District Counsel's Officewithout a FOIA request. However, the mere mak-ing of the request by the applicant's attorney maycause the DHS Attorney to particularly focus onthe requested record.

If the applicant's attorney elects to file a FOIArequest, it is advisable to make the request as soonas possible to maximize the chances of receivingthe applicant's file before the individual hear-ing.119 The procedure for filing a FOIA request tothe EOIR is described in the Immigration CourtPractice Manual.120 The procedure for filing a FOIArequest to the DHS is described on the agency'swebsite,12'

Exhibits

Individual Documentation. Le a~ 1 Rec~uire-ments. Although 8 C.F.R. ~ 208.13(a) states that"[t]he testimony of the applicant, if credible, may

10


be sufficient to sustain the burden of proof with-out corroboration," the Board of ImmigrationAppeals (BIA or Board) has steadily tightenedthe requirements of the need for providing cor-roborating documentation by an asylum appli-cant, In the 1987 case of Matter of Mogharrabi,12z

the BIA stated that, although every effort shouldbe made to obtain corroborating evidence to sup-port aclaim of persecution, the lack of such evi-dence would not necessarily be fatal to the claimwhen the applicant's own testimony was the onlyevidence available and when the testimony wasbelievable, consistent, and sufficiently detailedto provide a plausible and coherent account ofthe basis for the applicant's fear. Two years later,in Matter of Dass,123 the BIA noted that Matter ofMogharrabi and other federal cases did not standfor the proposition that the introduction of cor-roborating evidence was purely an option in anasylum case. In 1997, in Matter of S-M-J-,124 the BIAtightened the standard a little further, stating that,where it was reasonable to expect corroboratingevidence for certain facts regarding an applicant'sclaim, the evidence should be provided becausecredible testimony is only "part of the body of evi-dence which is intertwined and considered in itstotality." One year later, in Matter o f M-D-,1~ theBIA denied an asylum claim where, even thoughthe applicant's testimony was detailed, believable,and consistent, there was a lack of specific docu-mentation corroborating the applicant's identityand residence in a refugee camp, although the ap-plicant had testified that his identity documentswere destroyed by his persecutors when he wasarrested and although there was evidence that theOffice of the United Nations High Commissionerfor Refugees (UNHCR) did not have sufficientstaff or resources to document his presence in therefugee camp. Thus, over time, the BIA has takenthe position that applicants are eligible for asylumbased solely on credible testimony only if corrobo-rating evidence is not reasonably available.lzb

In the REAL ID Act, Pub. L. No. 109-13, Div. B,119 Stat. 23, passed in May 2005, Congress added asection to the INA dealing with the burden of proof.It states, in pertinent part:

(~ '~~

~-

~- ~ ..

Sustaining burden. The testimony of the appli-cant maybe sufficient to sustain the applicant'sburden without corroboration, but only if theapplicant satisfies the trier of fact that the appli-cant's testimony is credible, is persuasive, andrefers to specific facts sufficient to demonstrate ~ ' ~';ir,that the applicant is a refugee. In determiningwhether the applicant has met the applicant'sburden, the trier of fact may weigh the credible

OO 2012 Thomson Reuters


testunony along with other evidence of record.1 Where the trier of fact determines that the ap-

plicant should provide evidence which corrob-orates otherwise credible testimony, such evi-dence must be provided unless the applicantdoes not have the evidence and cannot reason-ably obtain the evidence,12'

This provision applies to all asylum applicationsfiled on or after May 11, 2005, the date of enactmentof the REAL ID Act,lz8

AUGUST 2oY2

(3) regarding the applicant's family mem-bers: (a) birth certificates, (b) marriage cer-tificates, (c) divorce certificates, (d) deathcertificates, (e) national ID cards, (f) pass-ports, and (g) family photos.

(4)

Also, the REAL ID Act added the following pro-vision regarding corroborating evidence to the sec-tion of the INA dealing with the standard of reviewon appeal:

No court shall reverse a determination madeby a trier of fact with respect to the availabilityof corroborating evidence ... unless the court (5)finds, ... that a reasonable trier of fact is com-pelled to conclude that such corroborating evi-dence is unavailab1e.129

In view of the foregoing, the importance ofemploying all reasonable efforts to obtain cor-roborating documentation cannot be overstated.If corroborating documentation cannot be ob-tained, the applicant's efforts to do so should be

:~ documented and provided to the court as part ofthe applicant's exhibits.

Any finding by an immigration judge regard-ing the lack of corroborating documentation will bevery difficult to reverse on appeal.13o If the immigra-tion judge makes such a finding, James Feroli, in hisarticle appearing in Immigration Briefings, providesguidance for responding on appeal to a determi-nation by an immigration judge that corroboratingdocumentation was not provided.'31

Tomes of Individual Documentation. Some of thetypes of corroborating individual documentation toconsider obtaining include the following:

(1) regarding identification of the applicant: (a)birth certificate, (b) baptismal certificate, (c)national ID card, (d) military service records,and/or (e) passport. If these records cannotbe reasonably obtained, then the applicantshould attempt to obtain affidavits, decla-rations, statements, or letters from familymembers, relatives, friends, or others whocan corroborate the applicant's identity.

1 (2) regarding the applicant's background: (a)- ~ school records, including diplomas, (b)

employment records, and/or (c) militaryservice records.


regarding persecution of the applicant:(a) medical records, (b) photographs es-tablishing political involvement, religiousparticipation, or involvement in a socialgroup, (c) affidavits, declarations, state-ments, or letters from family members andwitnesses, (d) arrest or conviction records,(e) ID or membership cards in political,religious, or social groups, (f~ newspaperarticles that mention the applicant or cor-roborate events, and/or (g) photographsof wounds or scars.

regarding the applicant's journey to theUnited States: (a) photographs, (b) docu-mentationfrom refugee camps, (c) receiptsfor transportation and hotels, and (d) affi-davits, declarations, statements, or lettersfrom witnesses.

(6) regarding discretionary factors: (a) edu-cational records in the United States, (b)work records in the United States if em-ployment authorization has been provid-ed, (c) letters from local law-enforcementauthorities stating that the applicant hasno criminal history, (d) letters describingthe applicant's good moral character, (e)English as a second language (ESL) atten-dance certificates, and/or (f) documenta-tion reflecting involvement in religious orsocial organizations in the United States.

(7) regarding efforts to obtain corroboratingdocumentation given its importance asobserved above in nn. 122-131 and accom-panying text: (a) letters by the applicantor his or her attorney to family members,friends, or religious, political, or socialgroups in the country of origin request-ing specific records, (b) affidavits, declara-tions, statements, or letters from individ-uals in the country of origin stating thatthey have sought certain corroborating re-cordsbut have been unable to obtain themfor specifically stated reasons, and (c) anaffidavit from the applicant or the appli-cant's attorney regarding efforts to obtaincorroborating documentation.

(8) regarding authentication of or efforts toauthenticate documents: (a) emails, faxes,letters, or other documentation reflecting

AucusT Zoz2

the authentication of official records of theapplicant and/or his or her family mem-bers, (b) emails, faxes, letters or other doc-umentation by the applicant or his or herattorney to the U.S. embassy in the coun-try of origin seeking the authenticationof official records, (c) an affidavit of theapplicant or the applicant's attorney re-garding the lack of response from the U.S.embassy to the authentication efforts, and(d) affidavits, declarations, statements, orletters from witnesses who can authenti-cate any official records. For further infor-mationregarding the authentication issue,see nn. 317-320 and accompanying text.

(9) regarding the one-year issue, if pertinent:(a) passport entries, boarding passes, orother documentation reflecting the date ofentry into the United States, if available,(b) affidavits, declarations, statements, orletters from family members, friends, orothers regarding when the applicant lefthis or her country of origin, (c) receiptsfor purchases, transportation, lodging,and other expenses during transit to theUnited States and particularly in Mexicoor Canada, (d) affidavits, declarations,statements, or letters from individualswho may have crossed the border into theUnited States with the applicant or fromindividuals who were in contact with theapplicant shortly after crossing the border,and (e) documentation reflecting the seri-ous illness or mental or physical disabilityof the applicant or member of the appli-cant's immediate family demonstratingextraordinary circumstances regardingwhy the applicant's asylum applicationwas not filed within one year after the ap-plicant's last arrival in the United States.

It is important to retain as evidence the origi-nal envelope in which documents were sent orthe Federal Express or DHL wrapper to show bywhom they were sent, the date when they weresent, and the chain of custody, and the envelopeor wrapper should be included in the applicant'sexhibits submitted to the immigration court.

Expert Reports. Expert testimony is useful,and sometimes critical, in the presentation of anasylum case. Expert testimony often is providedby the following: (a) academics, human rights ad-vocates, employees" of nongovernmental organi-zations (NGOs), or former employees of the U.S.government who have expertise in the conditions


of the applicant's home country, especially whenthe U.S. Department of State Country Report on ~~~Human Rights Practices for the particular country ~_ % ~does not sufficiently address the persecution at is-sue in the applicant's case or is incorrect in somerespects, (b) medical doctors who can examinebullet wounds, scars, hearing loss, loss of vision,and other physical conditions to confirm that thephysical condition likely resulted from the perse-cution or torture described by the applicant, and(c) psychologists, psychiatrists, or social workerswho can examine the applicant to confirm post-traumatic stress disorder, depression, or someother condition that resulted from the applicant'spersecution or torture.

Experts regarding country conditions ordinar-ily can be found on the Internet using a Googlesearch. Because of the difficulty in locating an ex-pert on country conditions who will prepare a re-port and possibly testify for no fee in a pro bonocase, one approach is to locate as many potentialexperts as possible regarding the pertinent countryissues and then send each of them an email describ-ing the case and requesting their assistance. Typi-cally, if 10 to 15 emails are sent to potential experts,one to two favorable replies will be received alongwith two or three suggestions to contact another ~ ~ ' ~., ,expert who was not present on the initial list. Fur- ~~then email and telephone contact generally will re-sult in at least one expert who can prepare a reportand agree to testify by telephone on a pro Bono ba-sis. Organizations like Amnesty International andHuman Rights Watch also are possible sources forexpert witnesses on specific country conditions.The American Anthropology Association addition-ally maintains a bank of experts regarding certainconditions in specific countries,132 Other websitesthat may be usefixl in locating a country conditionsexpert include asylumlaw.org and the Center forGender and Refugee Studies for cases involvinggender-based violence, female genital mutilation(FGM), and other gender-related issues. Expertsfurther can be located by contacting attorneys whofrequently handle asylum cases.

Probably the best source for a medical or psy-chological expert is Physicians for Human Rights(PHR). PHR's website contains a forensic evalua-tion request form that can be downloaded, com-pleted, and then sent by email to [email protected] PHR usually will appoint a pro Bono medi-cal or psychological expert fairly quickly after the -receipt of the form.

The Immigration Court Practice Manual re-quires that, in addition to the expert report, a cur-



rent resume or curriculum vitae (CV) also must be~i provided as part of the witness list.134

Evidentiary considerations regarding the useof expert reports at the individual hearing are dis-cussed in nn. 343-351 and accompanying text. Thestandards for expert witnesses are addressed innn. 259-266 and accompanying text. Use of a mo-tion for an expert witness to testify by telephone isdiscussed in nn. 154-160 and accompanying text.

Documentation Regarding Country Condi-tions. Documentation regarding country condi-tions is essential to support and corroborate theapplicant's case.

The country report that will need to be con-sulted in virtually every asylum case is the U.S.Department of State Country Report on HumanRights Practices ("State Department report") forthe particular country of concern during the par-ticular year or years of concern. These reports canbe found on the website of the U.S. State Depart-ment.135 Immigration judges rely heavily on StateDepartment reports to obtain background infor-mation in which to evaluate an applicant's claim,The REAL ID Act added statutory authority for

- , this reliance, stating that an immigration judgecan base his or her credibility determination on anumber of listed factors, including the consistencybetween the applicant's testimony and "other evi-dence of record (including the reports of the De-partment of Sfate on country conditions) ... ,"136

With respect to the importance of State Depart-ment reports, the BIA recently stated as follows:

State Department reports on country condi-tions,including the Profiles of Asylum Claims& Country Conditions, are highly probativeevidence and are usually the best source ofinformation on conditions in foreign nations.[Citations omitted.] The reports are accorded"special weight;' [citation omitted], becausethey are based on the collective expertise andexperience of the Department of State, which"has diplomatic and consular representativesthroughout the world." [Citation omi.tted.]However, this evidence does not "automati-cally discredit contrary evidence presentedby the applicant;' and it is critical to also con-sider and evaluate "any contrary or counter-vailing evidence ... as well as the particularcircumstances of the applicant's case. [Cita-

-~ tions omitted.]13'

~- ~ Some federal appellate courts have questionedthe reliance of immigration judges and the BIA onState Department reports since they are anony-

OO 2012 Thomson Reuters13

AUGUST 2012

mously written, often do not identify the evidenceon which they rely, and can be affected by therelationship between the United States and theparticular country in question.138 Nevertheless, ifa State Department report has information that iscontrary to the expected testimony of the asylumapplicant, particularly on an important issue inthe case, it will be difficult to overcome this con-trary information. Here, expert testimony and re-ports from respected nonprofit organizations likeAmnesty International and Human Rights Watchthat contradict the information in the State De-partment Report will be essential,

In addition to Amnesty International and Hu-man Rights Watch, other sources of country doc-umentation can be found on the websites of thefollowing organizations: Freedom House, U.S.Committee for Refugees, asylumlaw.org, Centerfor Gender and Refugee Studies, Reporters With-out Borders, and specific websites that considerthe particular country of concern or the particularissue of concern.

Most courts have found Wikipedia to be anunreliable source of country documentation,139

If the country documentation includes a bookor other similar published material, the title page,publishing information page, and table of con-tents should accompany the specific pages of thebook, and, if the book is difficult to locate, the ap-plicant also should identify where the publicationcan be found and authenticated,140 If the countrydocumentation includes a newspaper article, thefront page of the newspaper should be includedshowing the name of the newspaper and the dateof publication.14' All Internet publications that aresubmitted, such-as Human Rights Watch or Am-nesty International reports, should include thecomplete Internet address where each individualreport can be found.142

Finally, country documentation should behighlighted or underlined to indicate the perti-nent portions of the document that the applicantwould like to bring to the attention of the immi-gration judge.143

Exhibit Package. The Immigration Court Prac-tice Manual requires fihat all exhibits, including allindividual documentation, expert reports, andcountry documentation, be packaged and pro-vided to the immigration court along with a tableof contents, cover page, and proof of service.' Asample cover page is provided by the ImmigrationCourt Practice Manual at Appendix F, and a sam-

AUGUST 2012

ple proof of service is provided at Appendix G. Asample table of contents also appears as AppendixP to the Immigration Court Practice Manual. Rulesregarding pagination, paper size, tabs, fonts, spac-ing, and binding additionally are contained in theImmigration Court Practice Manual and shouldbe strictly followed.145 Original supporting docu-ments, such as identification cards, passports,membership cards, certificates, letter from rela-tives, or like records should not be filed with theexhibit package; rather, only copies should be pro-vided. The exhibit package should note that theoriginals are available for review.146 The applicantthen should bring all originals to the individualhearing.147

Witness List

The. Immigration Court Practice Manual re-quires that a witness list be provided to the im-migration court identifying each witness, otherthan the applicant, who will testify live or by tele-phone at the individual hearing.148 The witnesslist should include the name of the witness, thealien registration number, if applicable, a writtensummary of the testimony, the estimated length ofthe testimony, the language in which the witnesswill testify, and a CV or resume for any expert wit-ness.149 The witness list package to be filed withthe immigration court also should contain a coverpage and a proof of service.~so

Hearing Briefs

Depending upon the issues in the case and timeconstraints of the applicant's attorney, the filing ofa hearing brief on a specific issue or regarding theentire case should be considered. For example, ifan important issue in the case is firm resettlement,the applicant may wish to file a hearing brief onthis specific point to direct the court's attention,prior to the individual hearing, to the law as itapplies to.the anticipated facts of the applicant'scase. For further example, if the case has any legalissues that are on the cutting edge of the develop-ment of asylum law, the applicant also may wishto file a brief with respect to these points.

The Immigration Court Practice Manual setsout the specific requirements for a hearing briefin Section 4.19. The deadline for filing a hearingbrief is the same as the deadline for filing the ap-plicant's exhibits, witness list, and motions (15days in advance of the individual hearing for non-detained applicants) unless the immigration judgesets a different deadline.151

14


If one party files a hearing brief, the other par-ty may file a response brief within the same dead- ~~.line allowed for other responses (10 days after the `~._ ,filing of the hearing brief in cases for nondetainedapplicants) unless the immigration judge sets adifferent deadline.152 Any response brief mustcomply with the same specific requirements as thehearing brief.ls3

Motions

Types of Motions. If appropriate, the applicant'sattorney may consider filing one or more of the fol-lowing motions prior to the individual hearing.

Motion for Fact or Exert Witnesses to Testifyb~ele~hone. Frequently, fact or expert witnessesreside in another city, state, or country. If the ap-plicant's case is being handled on a pro Bono ba-sis, the client likely will not be able to afford theexpense of having a fact or expert witness appearlive at the individual hearing. An alternative is tohave the witness testify by telephone. If so, the Irn-migration Court Practice Manual requires that awritten motion to present telephonic testimony befiled with the immigration court.154 The expectedcontents of the motion are described in the Im-migration Court Practice Manual at § 4.15(o)(iii) ,-T>,(A). The Immigration Court Practice Manual also ~;states that a cell phone cannot be used by the wit-ness without the prior permission of the immi-gration judge, and international calls require thepresenting party to bring a prepaid telephone cardto the hearing to pay for the cal1.155 If the witnessonly can be available at a specific time during thehearing, this need should be discussed with theimmigration judge at the beginning of the indi-vidual hearing. Otherwise, the Immigration CourtPractice Manual requires that the witness be avail-able to testify at any time during the course of theindividual hearing.156 The applicant may be ableto obtain a ruling on the motion for telephonic tes-timony prior to the individual hearing; if so, theapplicant's attorney then will know ahead of timewhether the witness will be able to testify by tele-phone or whether the applicant will have to relyon the witness's affidavit or sworn declaration.

Some of the reasons to consider in supportinga motion for fact or expert witness to testify bytelephone include the following:

(1) Federal courts routinely have permitted awitness to testify by telephone.ls'

(2) Federal courts even allow deposition tes- ~ -'timony obtained by telephone to be readinto evidence at trial.lss


IMMIGRATION PiRIEFINGS

(3) Immigration courts have permitted the use`; of telephonic testimony.ls9

(4) Telephonic testimony is particularly war-ranted in asylum cases as removal is aharsh measure that "is all the more repletewith danger when the alien makes a claimthat he or she will be subjected to death orpersecution if forced to return to his or herhome country."16o

Motion to Issue Subpoenas. If a third party pos-sesses documentary evidence ox testimony neededby the applicant at the individual hearing and isunwilling to provide it voluntarily, an immigrationjudge is authorized to issue a subpoena requiringthe attendance of the witness or the production ofthe needed documents,161 In the motion to issuesubpoenas, the applicant must state what he or sheexpects to prove through the witness or documen-tary evidence, must show that diligent efforts havebeen made to obtain the documents or the appear-ance of the witness without success, and must beaccompanied by a proposed subpoena.162 The re-quired contents of the proposed subpoena are out-lined in the Immigration Court Practice Manual.163

A form of a subpoena also is contained at Appen-dix N of the Immigration Court Practice Manual. If

~ ''< J a subpoena is issued by the immigration judge, itmay be served by any person over 18 years of agewho is not a party to the case.l~

In the past, the need for subpoenas becameimportant in view of the increasingly delayed re-sponses of the DHS to FOIA requests. Immigrationattorneys were reporting delays of 10 months oreven a year or more.l~ In view of the more recentexpedited processing of FOIA requests for appli-cants in removal proceedings,166 the need fora sub-poena to obtain all or part of the applicant's DHSfile probably has been xeduced.lb'

If any significant delay in receiving a responseto a FOIA request is experienced and/ or if an infor-mal request to the District Counsel's Office is eitherunsuccessful or inappropriate for the particularcase,168 a subpoena to the DHS probably should berequested for the applicant's complete file, whichwould include any written statements of the appli-cant. For example, in cases of expedited removal,one document that usually is in possession of theDHS is the applicant's record of sworn statementobtained by a U.S. Border Patrol agent. As observed

~, 1 in nn. 225-235 and accompanying text, these state-=J ments can contain inaccuracies or inconsistencies

between their contents and the applicant's expectedtestimony. In view of a statutory provision added


AucusT Zoi2

to the INA by the REAL ID Act where even minorinconsistencies can now affect the credibility deter-mination of an inuliigration judge, it is important toobtain these statements as soon as possible so thatthey can be considered by the applicant prior to theindividual hearing.169

Motion to Extend Filing Deadlines. With regardto the requirements of the Immigration Court Prac-tice Manual pertaining to motions to obtain exten-sions of filing deadlines, see nn. 85-88 and accom-panying text.

Motion for Continuance. If a trial in some oth-er case or some other scheduled matter conflictswith the date when the individual hearing hasbeen set, if essential documentation from the ap-plicant's home country has not yet been obtainedfor reasons beyond the control of the applicant orthe applicant's attorney, or if there are other goodreasons, a written motion for continuance of the in-dividual hearing can be filed with the immigrationcourt.170 The motion should set forth the reasons forthe request and be supported by evidence, whichtypically would include an affidavit from the ap-plicant's attorney.l" The motion also should sug-gest alternative dates for the individual hearing,although the immigration judge retains the discre-tion to reschedule any continued case as he or shedeems appropriate.1z Until the motion for continu-ance is granted, the parties must appear on the cur-rentlyscheduled date.l'3

One factor to evaluate when considering amotion for continuance is the lengthening time toprocess asylum and other cases in immigrationcourts,14 If the continuance is granted, in some im-migration courts, it may take a year or more to re-schedule the individual hearing, which will furtherdelay the bringing of immediate family membersto the United States. Another factor to consider isthat the granting of a motion for continuance filedby the applicant likely will stop the asylum clockand may delay the issuance of a work permit to theapplicant.~'s

Motion to Strike Report of the DHS ForensicDocument Laboratory The DHS maintains a fo-rensic document laboratory in Virginia.176 DHS At-torneys can submit documentation to this lab foranalysis. For example, an examiner may be askedto determine the authenticity of a passport, ID card,or arrest warrant. The examiner also maybe askedto express an opinion as to whether a provided doc-ument has been altered. Immigration judges havegiven significant weight to reports from the Foren-sic Document Laboratory.l"

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There are a number of problems with these re-ports. First, as outlined by Jason Dzubow in an ar-ticle published in Immigration Law Today regard-ing forensic document lab reports, the ForensicDocument Laboratory generally refuses to revealthe underlying data for its reports or its method-ology."$ Second, the examiner's credentials andtraining usually are not stated in the report. Addi-tional problems also are considered in Dzubow'sarticle, and it should be consulted if this issue aris-es in the applicant's case.

As noted in nn. 259-266 and accompanyingtext, although Fed. R. Evid. 702 pertaining to experttestimony and the Daubert standard (discussed innn. 261-263 and accompanying text) do not strictlyapply to cases in immigration court, applicants inremoval proceedings are entitled to due process oflaw.179 The inability to analyze the underlying data,to evaluate the examiner's methodology, or to de-termine whether the forensic document examinerhas the proper scientific, technical, or other special-ized knowledge to render his or her opinions argu-ably violates the applicant's due process rights.180 Ifthe DHS Attorney does not file a resume or CV ofthe forensic document examiner along with a wit-nesslist atleast 15 days prior to the individual hear-ing, then there also is a violation of the requirementcontained in the Immigration Court Practice Man-ual that a resume or CV must be provided for anyexpert witness who may testify.181 Further, the INAstates that the applicant "shall have a reasonableopportunity to examine the evidence against thealien ... and to cross-examine witnesses presentedby the Government."182 If the forensic document ex-aminer is not made available for cross-examinationeither in person or by telephone, then the INA andthe applicant's due process rights arguably havebeen violated.183

In view of the foregoing, if before the indi-vidual hearing the DHS Attorney files a ForensicDocument Laboratory report with one or more ofthe problems described above, the applicant's at-torney should file a motion to strike the proposedexhibit. However, if a motion to strike has notbeen filed, because evidentiary objections can bemade at the individual hearing,184 the applicantcan still make oral or written objections to the ad-missibility of the report at that time. However, thelikelihood of having the objection sustained maybe enhanced by filing a motion to strike as the im-migration judge then has the opportunity to morefully consider the issue.

Finally, as Dzubow discusses in his article,before an allegedly fraudulent document is used


by an immigration judge for an adverse credibil-ity determination, the immigration judge should ~ ~,,make some finding that the applicant knew that ~ ,_the document was fraudulent.185 Thus, when aperson from the applicant's home country provid-ed the document, the applicant maybe able to tes-tify that he or she had no idea that the documentwas allegedly fraudulent.'sb

Motion to Take Depositions. The regulationspermit an immigration judge to order the deposi-tion of any potentially unavailable witness.187 Theimmigration judge's order is required to designatethe official by whom the deposition is to be tak-en and to prescribe and limit the content, scope,or manner of the taking of the deposition.188 Al-though commonly used in civil litigation, depo-sitions are rarely requested in pro Bono asylumcases. As a practical matter, this option may notbe available to many pro bono attorneys becauseof the substantial expense of obtaining a court re-porter and transcript.

Motion to Change Venue. See nn.15-23 and ac-companying text for the requirements and otherinformation regarding motions to change venue.

Motion to Accept an Untimely Filing. See nn. i ~~:,85-88 and accompanying text for the requirements `,,of a motion to accept the late filing of exhibits, awitness list, or other document.

Motion to Su~ress. As observed in nn. 24-26and accompanying text, there are certain circum-stances when an applicant may wish to requirethe government to meet its burden of proof to es-tablish the applicant's alienage. Under these cir-cumstances, the applicant's attorney should filea motion to suppress the Record of Deportable/Inadmissible Alien (Form I-213) or other similardocument. Good discussions regarding motionsto suppress are contained in an Immigration Brie f-ing by Margaret Hobbins,189 in a practice adviso-ry from the Legal Action Center of the AmericanImmigration Council,190 and in an article by SaraStanley and Daniel Swanwick in the ImmigrationLaw Advisor,191 and they should be consulted if amotion to suppress is being considered.

Other Motions. Other motions that an appli-cant may consider filing include the following: (1)motion to advance the hearing date, particularly ifthe applicant or any of his or her immediate family _members may lose eligibility for certain relief be-fore the hearing date,192 (2) motion for substitution ~ -'or withdrawal of counse1~193 ~3) motion to waivethe appearance of the applicant or his or her attor-



ney at a hearing (see nn. 7-10 and accompanying`, text),194 (4) motion to consolidate or sever the casesof the applicant and other members of his or herfamily who may be in proceedings,195 and (5) mo-tion to amend a previously filed motion, witnesslist, or other filing.196

Response to Motions. As stated in the Immi-grationCourt Practice Manual, a motion is deemedunopposed unless a timely response is made.197 Incases involving nondetained applicants, responsesto motions must be filed within 10 days after themotion was filed with the immigration court.19s

Procedure for Motions. Chapter 5 of the Im-migration Court Practice Manual contains a de-tailed statement regarding the procedure for filingmotions in an immigration court.199 Briefly, in non-detained cases, all motions must be filed at least15 days in advance of a hearing unless otherwisespecified by the immigration judge in a particularcase.200 Motions must include a cover page, and asample cover page appears at Appendix F of theImmigration Court Practice Manua1.201 All mo-tions must be accompanied by a proposed order(although immigration judges often do not usethe proposed order), and a sample order appearsat Appendix Q of the Immigration Court Practice

~ `. ; % Manua1.202 If a motion is based on evidence that isnot yet made a part of the record by the immigra-tion judge, the evidence should be submitted withthe motion.203 Prior to filing a motion, the appli-cant should make a good faith effort to determinethe position of the government regarding the mo-tion, and the position of the government shouldbe stated in the motion.204 Tf the DHS Attorney willnot respond to the applicant's inquiries regard-ing agreement, nonopposition, or opposition, adescription should be included in the motion re-garding the applicant's efforts to contact the DHSAttorney.205 Oral hearings on motions are rarelygranted by immigration judges.206 The immigra-tionjudge's decision on a motion will be providedeither orally at a hearing or in writing with a''copygenerally served on the parties.207

NONDOCUMENTATION MATTERSPRIOR TO THE INDIVIDUAL HEARING

Biometrics

Usually at the first master calendar hearing,in nondetained cases, the immigration judge will

~;: ~ require the applicant to have current fingerprintsJ and other identifying information collected so that

the DHS can verify the applicant's identity andconduct a security investigation. The immigra-

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tion judge also sometimes will provide a deadlinefor the applicant to complete this task. The DHSAttorney present in court will provide the appli-cant or his or her attorney with a form contain-ing instructions on how the biometrics should beobtained.208 If a deadline is not provided by theimmigration judge, it is best to proceed with ob-taining the biometrics as soon as possible as asy-lum cannot be granted by the immigration judgeunless the biometrics have been returned.209 Also,in the absence of good cause, the failure by the ap-plicant to obtain his or her biometrics can result inthe dismissal of the asylum application.210 There isno fee for obtaining the biometrics of an applicantin an asylum case.

Once taken, biometrics generally are valid for15 months. In nondetained cases, if an individu-al hearing has been scheduled for more than 15months after the applicant's biometrics last weretaken, the applicant should proceed to a USCISApplication Support Center with the notice ofhearing issued to the applicant, and the biometricswill be taken again. The personnel of the Applica-tion Support Center will stamp and date the noticeof hearing, and a copy of this document should befiled along with the applicant's exhibits.

If the applicant is detained, the DHS is respon-sible for obtaining the applicant's biometrics.2~1

Preparation of the Applicant for Directand Cross-Examination

Preparing the applicant for direct and cross-examination is the key to any asylum case. Thisis where most claims are won or lost. The appli-cant's attorney may want to consider the follow-ing issues in preparing the applicant for his or hertestimony. In addition to these issues, the appli-cant's attorney also may want to review the excel-lent discussions of direct and cross-examinationprepared by Professors Germain and Vail in theirpublications.Z'z

Ethical Considerations. Of course, it is clearthat a lawyer cannot "falsify evidence, counselor assist a witness to testify- falsely, or offer aninducement to a witness that is prohibited bylaw."213 Beyond these clear prohibitions, there isvery little guidance in legal ethical codes, caselaw, or legal scholarship on the permissible scopeof witness preparation.214 Certainly, "detailed,substantive consultations between lawyers andprospective witnesses are an expected part of trialpreparation."215 As the North Carolina SupremeCourt has stated:

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It is not improper for an attorney to preparehis witness for trial, to explain the applica-ble law in any given situation and to go overbefore trial the attorney's questions and thewitness' answers so that the witness will beready for his appearance in court, will bemore at ease because he knows what to ex-pect, and will give his testimony in the mosteffective manner that he can. Such prepara-tion is the work of a good trial lawyer ... andis to be commended because it provides amore efficient administration of justice andsaves court time.216

Further, in the Restatement of the Law (Third),the Law Governing Lawyers, it is noted that prep-aration of a witness may include the following aslong as it is consistent with the provision of truth-ful testimony:

discussing the role of the witness and effec-tive courtroom demeanor; discussing thewitness' recollection and probable testimony;revealing to the witness other testimony orevidence that will be presented and askingthe witness to reconsider the witness' recol-lection or recounting of events in that light;discussing the applicability of law to theevents in issue; reviewing the factual contextinto which the witness' observations or opin-ions will fit; reviewing documents or otherphysical evidence that may be introduced;and discussing probable lines of hostilecross-examination that the witness should beprepared to meet. Witness preparation mayinclude rehearsal of testimony.217

In this context, most lawyers follow the guide-lines of the Restatement of the Law (Third) of theLaw Governing Lawyers and recommend thatall anticipated questions for direct and cross-ex-amination be reviewed with the witness duringthe preparation for his or her testimony.218 As onenoted trial lawyer has written: "the first rule, then,is to woodshed in every instance, rehearsing bothdirect and cross examination ....Direct becomesmore concise and vivid; cross is seldom as bad asanticipated."2'9

Pxeparation Sessions. Because of the impor-tance of the applicant's testimony to the outcomeof the case, the preparation sessions usually are themost critical part in the preparation of an asylumclaim. For most applicants, it is generally advis-able to have at least two preparation sessions priorto the individual hearing to go over the expecteddirect examination, all cross-examination that can


be anticipated, and the other matters discussedbelow. Due to limited formal education, psycho- ~ ,.logical trauma associated with persecution, cul- t-_tural issues, or other factors, some applicants mayneed more than two preparation sessions.

Regarding the timing of the preparation ses-sions, it is usually best to schedule them for atime period shortly before the individual hear-ing so that the applicant will recall the mattersdiscussed.220 For example, if two preparation ses-sions likely will be sufficient, it probably is bestto schedule the first preparation session for fourdays prior to the hearing and the second prepara-tionsession for two days before the hearing. Then,if it becomes apparent during the first preparationsession that more time will be needed, additionaldays before the individual hearing are available.

General Admonitions. Preparation sessionsusually are begun with general admonitions givento the witness regarding his or her testimony.

The principal and most important admoni-tion for the applicant and other witnesses is totell the truth. However, in some cases, the merestatement of this fundamental requirement maynot be enough to drive the point home. In those ,- -situations, the applicant and other fact witnessesshould be reminded of the consequences of nottelling the truth, including the following: (1) thetruth likely will emerge during cross-examinationor questioning by the immigration judge, (2) thefalse testimony of the applicant almost certainlywill affect the credibility finding by the immigra-tion judge with the likely result that the appli-cant's asylum case will be lost, (3) the false testi-mony of the applicant may cause the immigrationjudge to find that the asylum application was filedfrivolously, making the applicant permanently in-eligible for any benefits under the INA,221 and (4)the applicant's attorney likely will have to move towithdraw from the case if he or she knows that thetestimony is false and also may have to disclosethe false testimony to the immigration court.z22

Other general admonitions include the follow-ing: (1) do not guess or speculate when answer-ing any question, (2) make sure that the questionis completely understood before answering it, (3)always let the immigration judge, the DHS Attor-ney, the interpreter, and the applicant's attorneycomplete a question before answering it, (4) do _not argue with the DHS Attorney and particularly f~ ''~with the immigration judge, (5) do not volunteer ~~—'information; rather, just answer the question thatis asked, and (6) do not make any jokes or humor-



ous remarks.723 Violations of one or more of these`,general admonitions may occur during the prepa-. gyration sessions and should be pointed out by theapplicant's attorney at that time.

Issues to Consider When Preparing the Ap-plicant #or Direct Examination. Some specific is-sues to consider when preparing the applicant fordirect examination include the following.

Question/Answer Format. Many applicantsare from cultures where the question/answer for-mat is unknown to them. Thus, it usually will takesome time to prepare the applicant to provide hisor her testimony in this format. For example, par-ticularly when responding to questions about pastpersecution, many applicants have a tendency toprovide far more information than is called for bya particular question. This tendency can frustratemany immigration judges and also cause them tobelieve that the testimony is "canned" or "overlyrehearsed." The applicant's attorney therefore willneed to work constantly with the applicant to listenclosely to the question and then limit his or her re-sponse to the information elicited by that question.

Unfavorable Testimony Each case has its->, strong points and its weak points; there is no

!' '' ~ perfect case. The weak points can include fam-ily members who have not been persecuted, in-consistencies between the asylum applicationand the applicant's expected testimony, the ap-plicant's failure to immediately depart his or herhome country following incidents of persecution,inconsistencies in statements provided to a U.S.Border Patrol agent or an asylum officer, econom-ic motivations for coming to the United States, themanner of entry into the United States, and a fail-ure to apply for asylum in third countries throughwhich the applicant has traveled. Each of these is-sues, and any other negative matter on which theDHS Attorney or immigration judge could poten-tially question the applicant, should be addressedduring direct examination so that the best lightcan be placed on the unfavorable testimony224 andso that the immigration judge has confidence thathe or she is being provided with the entire story.The sting of the negative issue almost certainlywill be reduced if it is first brought out on directexamination.

Discretionary Factors. Any testimony that willplace the applicant in a more favorable light also

1, should be brought out in direct examination. ThisJ testimony could include the applicant's activities

in church or other organizations in the UnitedStates, the applicant's attendance at ESL or other

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classes, the applicant's devotion to his. or her fam-ily, and the applicant's plans if he or she is allowedto remain in the United States. Although DHS At-torneys often object to this testimony based ona lack of relevance, since asylum is a matter ofdiscretion, most immigration judges will allowat least some direct examination with respect tothese points.

Leadin t~ he Applicant. Unless the applicantis a minor or is mentally incompetent, the immi-gration judge usually will sustain any objectionby a DHS Attorney to any leading questions onany significant subject asked the applicant by hisor her attorney during direct examination. Thus,during one of the preparation sessions, an expla-nation should be provided to the applicant regard-ing the type of questions that are leading and thereason that these questions cannot be asked by theapplicant's attorney. Otherwise, the applicant willnot be prepared for the manner in which his or hertestimony is to be provided on direct examination.If it becomes apparent during the preparation ofthe case that the applicant's story cannot be fullydeveloped without at least some leading c~ues-tions, see nn. 245-250 and accompanying text for apossible approach to this problem.

Lack of Corroborating Documentation. As ob-served in nn. 122-131 and accompanying text, theimportance of corroborating documentation per-taining to the applicant's case cannot be over em-phasized, particularly in view of the 2005 changesto the burden of proof contained in the REAL IDAct. Thus, when preparing the applicant for his orher direct testimony, consideration must be givento a reasonable explanation for the unavailabilityof any documentary evidence that would corrobo-rate the applicant's testimony. The explanation caninclude the efforts undertaken by the applicant toobtain the corroborating documentation and whythose efforts have been unsuccessful.

Credibility and Minor Inconsistencies in theA~~licant's Testimony. In all claims for asylum,an immigration judge should make a thresholddetermination of the applicant's credibility.~s Tes-timony can be considered not credible when it isinconsistent, contradicts current country condi-tions, or is inherently improbable.726 Evasive orunresponsive behavior also can support an ad-verse credibility finding as well as omissions dur-ing the applicant's testimony or in the applicant'sapplication or declaration.22'

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Prior to 2005, the BIA228 and numerous fed-eral courts2z9 repeatedly held that credibility onlycould be affected by discrepancies or inconsisten-cies in the applicant's testimony that are materialand go to the heart of the claim; discrepancies orinconsistencies in nonmaterial parts of a case nor-mally would not affect credibility.

In view of a 2005 amendment to the INAcontained in the REAL ID Act, this standard haschanged. The following provision was added tothe section of the INA dealing with asylum claims:

Credibility determination. Considering thetotality of the circumstances, and all relevantfactors, a trier of fact may base a credibilitydetermination on the demeanor, candor, or re-sponsiveness of the applicant or witness, theinherent plausibility of the applicant's or thewitness's account, the consistency betweenthe applicant's or witness's written and/ororal statements (whenever made and wheth-er or not under oath, and considering the cir-cumstances under which the statements weremade), the internal consistency of each suchstatement, the consistency of such statementswith other evidence of record (including re-ports of the Department of State on countryconditions), and any inaccuracies or false-hoods in such statements, without regardto whether an inconsistency, inaccuracy, orfalsehood goes to the heart of the applicant'sclaim, or any other relevant factor.23°

When interpreting this provision in Wang v.Holder, the Fifth Circuit Court of Appeals adoptedthe standard of review of the Second Circuit, stat-ing as follows:

An IJ may rely on any inconsistency or omis-sion in making an adverse credibility deter-mination aslong asthe "totality of the circum-stances" establishes that an asylum applicantis not credible .... We defer therefore to anIJ's credibility determination unless, from thetotality of the circumstances, it is plain thatno reasonable fact-finder could make such anadverse credibility determination.23'

Also in the Wang case, the Fifth Circuit cited withapproval the following statement made by theSeventh Circuit Court of Appeals: "So what givesthe liar away? ... In a nutshell: details matter, andthe story's periphery may expose a liar."z32 In itsmost recent case on this issue, the Fifth Circuitstated that "it is irrelevant whether the credibil-ity determination went to the heart of [the appli-cant's] claims."233


In view of the foregoing, minor inconsistenciesthat do not go to the heart of the applicant's claim ~ ,can be used by the immigration judge when mak- ,_ing an adverse credibility determination. Thus,after the applicant's attorney is able to obtain anyprior written statements of the applicant, if thereare any minor inconsistencies between these state-ments and the applicant's expected testimony, anexplanation, if available, must be provided by theapplicant during his or her direct examination orby the applicant's attorney at some point duringthe individual hearing. Some possible explana-tions may include internal inconsistencies withinthe statement, the lack of a translator when thestatement was obtained, and the inherent prob-lems with certain kinds of statements. For ex-ample, in a study completed by the United StatesCommission on International Religious Freedomentitled "Expedited Removal Study Report Card"and dated May 2008, the Commission examinedmany facets of the asylum process, and with re-spect to the Record of Sworn Statements - Witness(Form I-263W) obtained by Border Patrol agents,the study concluded that these statements wereunreliable. Specifically, the Commission found:

... that in 72 percent of the cases, asylumseekers were not provided with an oppor- f~ :?,tunity to review sworn statements taken by ~;immigration officers to make any necessarycorrections for errors in interpretation beforesigning. These sworn statements are not ver-batim, are not verifiable, often suggest thatinformation was conveyed to the asylumseeker which was in fact never conveyed,and sometimes contain questions that werenever asked. Although they resemble verba-timtranscripts, they are not. The Study foundthat these unreliable documents are oftenused against asylum seekers when their casesare presented before an immigration judge.Z34

An adverse credibility determination by the im-migrationjudge usually will result in a denial of theapplicant's asylum claim. If this occurs, James Fer-oli, in his article in Immigration Briefings, providesa number of strategies to consider on appeal withrespect to an adverse credibility determination, in-cluding the following: (1) the immigration judgefailed to consider the totality of the circumstancesas required by the REAL ID Act, (2) the immigra-tionjudge failed to provide specific, cogent reasonsfor basing the adverse credibility determination on _minor inconsistencies not going to the heart of the ~t'. '~~~claim, and (3) omissions in the applicant's testimo-nyshould not have the same impact on a credibilitydetermination as inconsistencies.'~5



Mixed Motives vs. One Central Reason. PriorIto 2005, the law regarding mixed motive for perse-

- 'cution had been well established at the BIA236 andin the federal appellate courts:23'the applicant wasrequired to prove that the persecution was moti-vated, at least in part, by one or more of the fiveprotected grounds.

In the 2005 REAL ID Act, Congress tightenedthe mixed-motive standard. Now, an applicant ina mixed-motive case must prove that one of theprotected grounds was "at least one central rea-son" for the persecution of the applicant. This pro-vision of the INA now states as follows:

In general. The burden of proof is on the ap-plicant to establish that the applicant is arefugee, within the meaning of ~ 101(a)(42)(A). To establish that the applicant is a refu-gee within the meaning of such section, theapplicant must establish that race, religion,nationality, membership in a particular so-cial group, or political opinion was or willbe at least one central reason for persecutingthe applicant.23$

In a fairly recent case interpreting this provi-;~: j sion, the Fifth Circuit Court of Appeals adopted-`' the interpretation of the BIA and other federal ap-

pellate circuit courts, stating as follows:

The BIA's interpretation is that although astatutorily protected ground need not be theonly reason for harm, it cannot be "inciden-tal, tangential, superficial, or subordinate toanother reason for harm." [Matter of J-B-N-F~ S-M-, 24 I&N Dec. 208, 214 (BIA 2007)].Although we have not had occasion to con-sider this interpretation, anumber of othercircuits have accepted it. See, e.g., Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir.2009); Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir.2008); Parussinova v. Mukasey, 533 F.3d 1128,1134 (9th Cir. 2008), amended and supersededon denial of reh'g by 555 F.3d 734 (9th Cir.2009). We join our sister circuits in acceptingthis interpretation.239

More recently, when considering this provision,the BIA stated that "the 'protected ground' can-not play a minor role in the alien's past mis-treatment or fear of future mistreatment."240 In

~~.. ~ the same case, the SIA further noted, "Instead,~- ~ an alien must demonstrate that the persecutor

would not have harmed the applicant if the pro-tected trait did not exist."Z~1

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In view of the foregoing, when preparing theapplicant for his or her direct examination in amixed-motive case, attention must be given tohaving the applicant identify all of the direct orcircumstantial evidence242 showing that his or herpast persecution was and/or future persecutionwill be on account of one or more of the five pro-tected grounds.243

Issues to Consider When Preparing the Ap-plicant for Cxoss Examination. Because of thetime spent on the case by the applicant's attorney,he or she probably will know its weaknesses bet-ter than the DHS Attorney who, because of oth-er demands, is unlikely to have given the sameamount of time to preparation for the individualhearing. As noted above, it is best to address thoseweaknesses in direct examination. However, theapplicant's attorney should not assume that theapplicant is adequately prepared for cross-exami-nation if he or she fully answers questions regard-ing the case's weaknesses during a mock directexamination. Virtually all questions from the DHSAttorney will be leading. It therefore is advisableto conduct a mock cross-examination of the appli-cant during the preparation sessions. One strategyis to have an attorney other than the applicant'slawyer conduct the mock cross-examination sothat the applicant can get used to the differentstyle, cadence, and approach of another attorney.It is particularly helpful if the attorney conduct-ing the mock cross-examination can incorporatethe style and approach of the DHS Attorney wholikely will be present for the individual hearing.

Issues to Consider When Preparing the Ap-plicant for Questioning by the ImmigrationJudge. Virtually every immigration judge will askat least some questions. An immigration judgemay ask questions of the applicant or any otherwitness at any time during a hearing.z`~ Immigxa-tion judges may interrupt the direct examinationof the applicant or of one the applicant's witnessesto ask specific questions on subjects which, in thejudge's opinion, need clarification or elaboration.Immigration judges usually are less likely to askquestions during cross-examination by the DHSAttorney. Some immigration judges wait until theconclusion of direct and cross-examination beforeasking any detailed questions. If the question-ing style or approach of the immigration judge isknown, it should be discussed with the applicantduring the preparation sessions so that he or shewill not be surprised by it at the individual hear-ing. Also, perhaps because of different culturalnorms, some applicants have a tendency to try to

AucusT Zoz2

agree with the immigration judge whenever pos-sible. The applicant should be told that the im-migration judge may be testing the applicant ormay misunderstand the facts, so the applicantshould be strongly advised not to agree with theimmigration judge if his or her answer to the im-rnigration judge's question would be incorrect.Additionally, some applicants assume that the im-migration judge will be familiar with the facts oftheir case and the conditions in their home coun-try. During the preparation sessions, the applicantshould be informed that immigration judges havea very heavy caseload with respondents frommany countries around the world; the applicanttherefore should not assume that the immigrationjudge knows the factual details of either the ap-plicant's case or the home country conditions eventhough the information has been provided in theapplicant's asylum application, affidavit/declara-tion, and exhibits.

Issues to Consider When Preparing Appli-cants Who Are Unaccompanied Minors, WhoAre Mentally Incompetent, or Who Have Lim-ited Education and Experience. Regulations,245

case law,246 and operating procedures of Office ofthe Chief Immigration Judge247 can provide someprotection for unaccompanied minors during theasylum process.248 The same is true for applicantswho are mentally incompetent.249

There are no regulations, case law, or operatingprocedures that protect mentally competent adultapplicants from diverse cultures who have little, ifany, education and who have very limited experi-encewith any Western culture. However, althoughan immigration judge is not required to follow theFederal Rules of Evidence 250 Rule 611(c) providesthat "[1]eading questions should not be used onthe direct examination of a witness except as maybe necessary to develop the witness's testimony."If it becomes apparent during meetings and prep-aration sessions that the applicant will not be ableto testify adequately without at least some lead-ing questions regarding the critical aspects of thecase, the applicant's attorney probably will wantto address this issue with the immigration judgebefore the beginning of direct examination. Then,during the course of the direct examination, if theapplicant's attorney is unable to elicit the festimo-ny that is needed to establish the applicant's case,a request to the court to allow the use of leadingquestions should be made in view of the exceptionto Fed. R. Evid. 611(c).

Demeanor and Clothing. During the meetingswith the client, the applicant's attorney will want


to remind the applicant that he or she likely willbe judged by Western assumptions regarding de-/' ~,meanor and Western concepts pertaining to cour-1,,,tesy. Thus, the applicant should be told to standwhen the immigration judge enters and leavesthe courtroom.251 If the testimony is provided inEnglish, the applicant always should look the im-migration judge, the DHS Attorney, and his or herown attorney in the eye when responding to aquestion. Although looking into the eyes of a per-son in authority may be inappropriate or a signof discourtesy in their culture, the failure to do socan be taken as a sign of untruthfulness in ours. Ifthe testimony is provided in a foreign language, itusually will be acceptable for the applicant to lookat the interpreter when responding to a questionsince the question will come from the interpreter.The applicant also should address the immigra-tion judge as "Your Honor" or "Judge."~52

The applicant should be reminded to wearappropriate clothing to the individual hearing,253

Asylum is a matter of discretion, .and improperclothing may have a negative impact on certainimmigration judges.

The Need to Be on Time for All Hearings.During the first master calendar hearing, the ap- ;~ . ,plicant usually will be warned by the immigration '`;:judge that, absent exceptional circumstances be-yond the applicant's control, a failure to appearat the date and time of any subsequent hearingswill result in a finding that the applicant has aban-doned all forms of relief, including asylum, with-holding of removal, or relief under the Conven-tionAgainst Torture, and that the issuance of an inabsentia order of removal will be entered and willrender the applicant ineligible for certain forms ofdiscretionary relief for a period of 10 years there-after.254 Also, the Department of Justice's noticeto appear form (Form I-862) specifically providesthat, "[i]f you fail to attend the hearing at the timeand place designated on this notice, or any dateand time later directed by the immigration court,a removal order maybe made by the immigrationjudge in your absence, and you may be arrestedand detained by the INS." The Immigration CourtPractice Manual further admonishes the applicantthat any delay in appearing at a master calendaror individual hearing "may result in the hearingbeing held in absentia."25s

Applicants often come from cultures where _promptness and being "on time" are not valued ~ !~or required as in the United States. During thepreparation sessions, the applicant should be re-minded of the need to be early for the individual



hearing and of the potential consequences for`failing to appear on time.

~•Fact Witnesses

If the applicant's attorney decides that it isnecessary to call any fact witnesses other than theapplicant, they must be identified in a witness listfiled with the court at least 15 days prior to theindividual hearing in a nondetained case.256 Foreach fact witness, the witness list must identifythe name of the witness, give the alien registra-tion number of the witness if applicable, providea written summary of the expected testimony ofeach witness, state the language in which the wit-ness will testify, and give the estimated length oftime for the testimony.257 Of course, any fact wit-nesses must be prepared for the individual hear-ing in a manner similar to the applicant..

Fact witnesses also usually should have somekind of legal status in the United States, i.e., asy-lum applicant, conditional or permanent resident,or citizen. Otherwise, their lack of legal status maycome to the attention of the DHS Attorney pres-ent for the individual hearing. If the testimony ofa witness without legal status is needed to pres-

-- ~ ent the applicant's asylum case, one approach ist. ~ for the applicant's attorney to discuss the matter,,;

with the applicant and suggest that another attor-ney, who does not represent the applicant, meetwith the witness, inform the witness of the pos-sible consequences of testifying at the individualhearing, and determine whether the witness willaccept that risk. If the witness refuses to accept therisk and his or her testimony is essential for theapplicant's case, then other options can be consid-ered, including the use of an affidavit or declara-tion (although it may be excluded from evidenceor if admitted, given less weight by the immigra-tion judge) or the issuance of a subpoena.258

Expert Witnesses

Fed. R. Evid. 702 provides as follows:

If scientific, technical or other specializedknowledge will assist the trier of fact to un-derstand the evidence or to determine a factin issue, a witness qualified as an expert byknowledge, skill, experience, training, oreducation, may testify thereto in the form ofan opinion or otherwise, if (1) the testimonyis based upon sufficient facts or data, (2) thetestimony is the product of reliable principlesand methods, and (3) the witness has appliedthe principles and methods reliably to thefacts of the case.


AUGUST 20Y2

While the Federal Rules of Evidence are notbinding in removal proceedings, Rule 702 hasbeen cited as helpful guidance by the BIAz59 andfederal appellate courts 260 Further, in Daubert v.Merrell Dow Pharmaceuticals, Inc., the United StatesSupreme Court established requirements for usein federal courts to ensure that expert testimonymeets certain standards of reliability.261 Thus,when selecting experts in an asylum case, it is ad-visable to make sure that they meet the require-ments of Rule 702 and Daubert.262 Similarly, if thegovernment offers any expert testimony, such as aForensic Document Laboratory report, these stan-dards also should be used as guidance to deter-mine its admissibility.z~

As with fact witnesses, if any expert witnesswill be called to testify at the individual hearing,the expert witness must be identified in a wit-ness list filed with the immigration court at least15 days prior to the individual hearing in a non-detained case.z64 For each expert, the witness listmust provide the same information as requiredof fact witnesses and also attach a CV or resumeof the expert witness.z65 As with the applicant andother fact witnesses, expert witnesses also need tobe prepared for their testimony at the individualhearing, although the time required for their prep-aration sessions usually is far less than needed forthe applicant and the other fact witnesses.

For information regarding the types of expertwitnesses that may be needed by an applicant inan asylum proceeding, see nn. 132-134 and accom-panying text. Evidentiary considerations regard-ing the use of expert reports are discussed in nn.343-351 and accompanying text. Use of a motionfor an expert witness to testify by telephone is ad-dressed in nn. 154-160 and accompanying text.266

Know the Immigration Judge

It is important for the applicant's attorney to befamiliar with the immigration judge who has beenassigned to the applicant's case. A list of all immi-gration judges in the United States for each juris-diction is maintained by the EOIR on its website.zb~

Some of the issues that vary from immigrationjudge to immigration judge include the following:(1) the judge's familiarity with the case and record,(2) the judge's familiarity with the conditions inthe applicant's home country, (3) the judge's styleand frequency in questioning the applicant, (4) thejudge's receptivity to hearing expert testimony bytelephone or any expert testimony at all, (5) thejudge's receptivity to motions for continuance and

AUGUST 2012

the likely length of the postponement if the mo-tion for continuance is granted, (6) the judge's re-ceptivity to closing arguments, and (7) the judge'suse of deadlines other than those contained in theImmigration Court Practice Manual. Some of thisinformation can be obtained by attending an openhearing before the particular judge assigned to theapplicant's case prior to the applicant's individu-al hearing. Even more useful information can beobtained and should be sought from experiencedpractitioners in that jurisdiction.

Current statistics for the grant/denial rates ofeach immigration judge who has decided 100 ormore asylum cases are available on the Internet ina report prepared by Transactional Records AccessClearinghouse.zb8

Know the DHS Attorney

An applicant's attorney also should be famil-iar with the style and demeanor of the DHS Attor-ney who likely will be assigned to the applicant'sindividual hearing. In many locations, the DHSAttorney who likely will be assigned to the appli-cant's case may not be known until about a weekor so before the hearing. This information thencan usually be obtained by calling the local ChiefCounsel's Office. Information regarding each ofthe DHS Attorneys also is best provided by expe-rienced practitioners in that jurisdiction.

Review of the Court's File

Prior to the individual hearing, it is almost al-ways agood idea to review the court's file to makesure that the applicant's attorney has seen all doc-umentation contained therein. The procedures forreviewing the file of the immigration court and forobtaining copies of documents from the file aredescribed in nn. 110-121 and accompanying text.

Other Prehearing Considerations

A month or so prior to the individual hear-ing, it is a good idea to double-check the date ofthe hearing by contacting the immigration clerk.Also, the EOIR maintains atoll-free number thatrecites any hearing dates, appeal information,and the status of the asylum clock. This numberis 1-800-898-7180. It additionally is a good ideato confirm with the immigration clerk that an in-terpreter in the applicant's language has been ar-ranged by the court.

Good lawyering is almost always a collab-orative process. Thus, at least with respect to anyweaknesses or other problems with the case, it fur-

24


ther is a good idea for the applicant's attorney todiscuss his or her approach with another lawyer( ~~who is knowledgeable in the area as two heads are\._;`' ~~almost always better than one. Like many asylumlawyers, the author is available at any time to talkabout an asylum case and try to answer any ques-tions regarding strategy, handling, or any other is-sue. The author's office telephone number. is (713)224-8380, and his email address is robert.etnyre@roystonlaw. com.

INDIVIDUAL HEARING

Closed Hearing

Any individual hearing involving an applica-tion for asylum, withholding of removal, and/orrelief under the Convention Against Torture is au-tomatically closed to the public; only the parties,their attorneys, employees of the EOIR, and anyother persons allowed by the immigration judgemaybe in attendance.269 Other persons can attendthe individual hearing only if they have the con-sent of the applicant and the immigration judge.270

Inapplicability of the AdministrativeProcedure Act

The individual hearing is not governed by the ~:. ~'requirements of the Administrative ProcedureAct.27

Original Supporting Documents

Original supporting documents, such as pass-ports, identity cards, membership cards, photos,summons, arrest warrants, birth certificates, mar-riage certificates, letters from relatives, or like re-cords must be brought to the individual hearingand made available to the DHS Attorney or theimmigration judge, if requested.2'2

Interpreters

An interpreter for the individual hearingwill be provided by the court at government ex-pense.273 The skill of these interpreters can varysignificantly. As a result, if the immigration judgewill allow it, an applicant may want to have hisor her own interpreter attend the individual hear-ing and advise during the course of the hearingif there is any problem with the interpretation. Ifthe applicant is unable to bring an interpreter andif the applicant has proficiency in English, duringthe preparation of the applicant for his or her tes- f " '>itimony, the applicant's attorney should advise the ̀` -'applicant that he or she will have to monitor theinterpreter; if the interpreter makes a mistake, the



applicant must bring that mistake to the attention'~f the immigration judge.

In determining whether a translation wasperformed incompetently, the Court of Appealsfor the Ninth Circuit stated in the Perez-Lastorcase as follows:

In evaluating incompetent translation claims,this court has identified three types of evi-dence which tend to prove that a transla-tion was incompetent. First, direct evidenceof incorrectly translated words is persuasiveevidence of an incompetent translation. See,Kotasz v. INS, 31 F.3d 847, 850 n.2 (9th Cir.1994) (suggesting that petitioners might haveprevailed if they had "specified which, ifany, word would have been translated differ-ently, given a more competent interpreter");Hartooni, 21 F.3d at 340 (stating that it is "in-appropriate for [the alien's] interpreter to[ ]substitute [ ]the interpreter's words for thosesaid by [the alien]"); Acewicz, 984 F.2d at 1063.Second, unresponsive answers by the witnessprovide circumstantial evidence of transla-tion problems. See Id.; Kovac v. INS, 407 F.2d102, 108 n.12 (9th Cir. 1969); see also, Augus-tin, 735 F.2d at 35. A third indicator of an in-competent translation is the witness' expres-sion of difficulty understanding what is saidto him. See, Acewicz, 984 F.2d at 1063; Cheo v.INS, 162 F.3d 1227, 1229 (9th Cir. 1998).2'4

If a significant problem is noted, the applicant'sattorney should consider requesting a voir dire todetermine the interpreter's skills and certification.A detailed proposed voir dire has been preparedby Larry Katzman and can be found in a manualprepared by the Immigrant Legal Resource Cen-ter entitled "Winning Asylum Cases."275 Some ofthe questions include whether the interpreter hasbeen certified, whether the interpreter fully un-derstands the applicant, whether the interpreteris providing a word for word interpretation, andwhether the interpreter is familiar with the dia-lect or idiomatic peculiarities of the applicant.z'6

The applicant's attorney may want to consult thissection of Winning Asylum Cases prior to the in-dividual hearing in the event that any problemsoccur with the court's interpreter.

__ If the interpreter stops the applicant in mid-an-saver to translate, the applicant's attorney should

`- make sure that the applicant has been able to ful-ly complete his or her answer before proceedingwith the next question.


AUGUST 20I2

An incompetent translation may result in vio-lations of the applicant's fundamental due processright to a full and fair hearing.27 To establish a dueprocess violation, the applicant must show thatthe interpreter did not perform competently andthat the hearing was prejudiced by that failure.278In determining whether the applicant's hearingwas prejudiced by an incompetent translation,courts have stated that the applicant must showhow a better translation would have made anydifference in the outcome of the hearing.279 In therecent case of Matter of D-R-, the BIA found thatthe prejudice requirement had not been met bythe applicant because "[t]he respondent has notidentified where the Immigration Judge relied onincompetent or incorrectly translated testimony inreaching her decision, and ... has not shown thatthe outcome would have been any different . , .."~so

Preliminary Matters

Before the applicant is called to testify, the fol-lowing matters generally are considered by an im-migration judge. First, if any further changes arerequired in the asylum application, they shouldbe identified to the DHS Attorney before the startof the individual hearing and to the immigrationjudge at the beginning of the hearing. Althoughmost immigration judges will accept limitedchanges to a previously filed asylum applicationat the beginning of the individual hearing, theyare not required to do so unless the changes wereidentified at least 15 days prior to the hearing.2a1

Second, exhibits are admitted into evidence. Ob-jections to any exhibits by either party may bemade at any time, including at the individualhearing.282 Third, the court generally will rule onany outstanding motions. Fourth, when an open-ing statement is desired by the applicant, a requestshould be made to the court. However, openingstatements are not permitted by many immigra-tion judges. Finally, the applicant's attorney maywish to ask the immigration judge to identifythose parts o£ the applicant's case with which heor she has the most concern so that these particularissues can be highlighted during the applicant'spresentation.283

Oxder of Testimony

Since the applicant bears the burden of proofon most issues in an asylum case, the applicantwill proceed first with his or her witnesses. Gener-ally, the applicant will be the first witness. After thecompletion of the direct examination, the DHS At-torney will conduct his or her cross-examination.The immigration judge typically will not wait for

AucusT Zoiz

direct and cross-examination to be completed be-fore asking questions but, rather, will ask them atany time the judge believes clarification or elabo-ration is needed.284 Redirect examination is usuallylimited to those matters addressed during cross-examination by the DHS Attorney or by question-ing of the immigration judge since the purposesof redirect are to rebut false impressions that ariseduring cross-examinationZ85 and to clarify otherissues that arise out of cross-examination.286 If anapplicant has been hurt by cross-examination orby the immigration judge's questioning, the ap-plicant's attorney generally should ask additionalquestions on redirect that may explain or softenthe harm.

After the testimony of the applicant is complet-ed, the applicant then will proceed with any otherfact or expert witnesses. Following the conclusionof the testimony of the applicant and any of his orher fact or expert witnesses, the DHS Attorney canpresent the government's witnesses, although inasylum cases, the government rarely does so.

Record of the Proceedings

The record of the proceedings generally in-cludes all original and amended applications forrelief, all motions and rulings by the immigrationjudge, all exhibits admitted into evidence, the re-cording of all testimony, and most of the collo-quy between the attorneys and the immigrationjudge.287 In the past, magnetic tapes were used forthe recording of testimony and the colloquy be-tween the attorneys and the immigration judge,but many immigration courts have begun usinga digital system.286 No other recording devices,whether photographic, video, or electronic, willbe allowed to record all or any part of the indi-vidual hearing.289 The recording later will be tran-scribed in the event any appeal is taken from theimmigration judge's decision. As a result, the ap-plicant's attorney must make sure that all objec-tions are made on the record,290 that rulings on allobjections are obtained and recorded, and that anymatter the applicant may need for appeal is placedon the record. If the interpreter does not do so, itis also helpful to spell any foreign names, places,and organizations because they likely will be gar-bled when the recording is later transcribed or ablank will be placed in the transcript where theunfamiliar word was stated.

Going O#£-Record During Proceedings

To clarify when an immigration judge is per-mitted to go "off the record;' the Office of the

26


Chief Immigration Judge issued an OPPM on Oc-tober 10, 2003.291 This Memorandum states (1) that ~ `~off-record discussions should be limited, (2) thatthe immigration judge should make clear on therecord that the parties are aware the recorder is be-ing turned off, (3) that when the off-record discus-sion is completed, the immigration judge shouldsummarize the off-record discussion upon return-ing to the record, and (4) that parties should begiven an opportunity to comment on or add to theJudge's summary.292

Hearings Conducted by Video orTelephone Conference

The Code of Federal Regulations providesthat an immigration judge can conduct hearingsthrough video conference to the same extent asa hearing in person.z93 In a practice advisory, theLegal Action Center of the American ImmigrationCouncil has identified a number of potential prob-lems that can arise during a video hearing, includ-ing the following: (1) the applicant often cannottestify effectively by video, particularly where de-meanor is an important issue, (2) the applicant'sattorney is unable to examine physical evidencepresented by the government, (3) the applicant `~ ̀ ~and his or her attorney cannot communicate di- ̀~rectly and privately, and (4) many technical dif-ficulties have occurred with the equipment usedby the immigration courts.294 In view of the fore-going, if a hearing is going to be conducted byvideo, the applicant's attorney should consult thispractice advisory and also may want to object toany individual hearing being conducted by videoconference.z95

Without the consent of the applicant, an indi-vidual hearing cannot be conducted by telephoneconference (but can be conducted by video con-ference) except that credible fear determinationsmay be reviewed by an immigration judge bytelephone conference without the applicant's con-sent.296Because of the importance of observing thedemeanor of the applicant and the witnesses, theawkwardness of conducting an individual hear-ing by telephone, and other issues, an individualhearing by telephone should almost always be ob-jected to by the applicant's attorney.

Video and telephone hearings proceed un-der the same rules as hearings held in person.29'` ';,

Documents are filed with the immigration court`- 'having administrative control over the record ofproceedings.29$



Burden of Proof

~; '~ The applicant has the burden of proving thathe or she is entitled to asylum,z99 withholding of re-moval,3oo and relief under the Convention AgainstTorture.3o1 However, in meeting this burden in anasylum claim, the U.S. Supreme Court held in theCardoza-Fonseca case that an applicant need onlyestablish that "persecution is a reasonable possi-bility,"302 which is "less than a 50% chance."3o3 TheCourt also stated in the Cardoza-Fonseca case thata 10%o chance of being persecuted could meet theburden of proof in an asylum case.3o4 In contrast,claims of withholding of removal and relief underthe Convention Against Torture must be provenby a "more likely than not" standard.3os

Evidentiary Considerations

Inapplicability of the Federal Rules of Evi-dence. The Federal Rules of Evidence are not ap-plicable in immigration court proceedings, includ-ing the individual hearing for an asylum case.3o6

However, the Federal Rules of Evidence maybe referred to for guidance in resolving any dis-puted evidentiary issues.307 The fact that specificevidence would be admissible under the Federal

`Rules of Evidence lends strong support to the con-``:ti~clusion that the admission of the evidence com-

ports with due process.3os

Standard for Admissible Evidence. The soletest for determining whether evidence is admis-sible in a removal proceeding, including an indi-vidual asylum hearing, is whether the evidence isprobative and whether its admission is fundamen-tally fair.3o9

Time for Objection to Evidence. Unlike thetypical practice in federal court 310 unless other-wise specified by the immigration judge fora par-ticular case, objections to any evidence by eitherparty, including documentary evidence submittedprior to the individual hearing, may be made atany time, including at the individual hearing.31'

Typically, in an asylum case, most (or even all) ofthe documentary evidence is offered by the appli-cant, who has the burden of proof regarding mostissues. When objections are made by the DHS At-torney at the individual hearing, the applicant'slawyer generally has no opportunity to correctany claimed defect in the. documentary evidence

__. or to brief any response to the objection. Given the)stakes involved in an asylum case, this rule canwork a manifest injustice if critical documentationis excluded from the immigration judge's consid-eration when an unanticipated objection by theO 2012 Thomson Reuters

27

Au~usT Zoz2

DHS Attorney is sustained by the immigrationjudge. One possible remedy for this problem is toaddress the issue of objections to documentary ev-idence at the first master calendar hearing to see ifthe immigration judge would consider the typicalfederal court practice of requiring that all objec-tions to written exhibits and the qualifications ofany expert be made in writing prior to the date ofthe individual hearing. Another possible remedyfor this problem is to request a continuance so thatthe unanticipated objection of the DHS Attorneycan be addressed at a later time or to request thatthe immigration judge defer his or her ruling andhold the record open until the objection can befully briefed.

Effect of Failure to Object to Evidence. A par-ty's failure to object to the admission of evidencebefore an immigration judge constitutes waiver,and any issue that could have been raised on ap-peal by the admission of the evidence is not pre-served for review.31z

Use of Hearsay. In view of the broad stan-dard for the admissibility of evidence, if hearsayis probative and its use is fundamentally fair, itwill be admitted into evidence by the immigrationjudge.313 However, the hearsay nature of the evi-dence may affect the weight given to it by the im-migration judge.314 Further, if a hearsay statementis contradicted by the declarant, the admission ofthe statement into evidence may not be funda-mentally fair under certain circumstances.3's

Use of Foreign Law The party seeking to relyon foreign law is required to prove it.316 It is ad-visable to follow the requirements of Fed. R. Civ.P. 44.1 regarding the proof of the law of the ap-plicant's home country or any country where theapplicant resided or through which the applicanttraveled.

Authentication. The applicable regulationsappear to require that official foreign documentsare to be authenticated, and they then providethe procedure for authentication.31 If the foreigncountry is a signatory to The Hague ConventionAbolishing the Requirement of Legalization forForeign Public Documents, the procedures of theConvention are to be followed.318 A current list ofcountries that are signatories to the Conventioncan be found on several websites,319 If the foreigncountry is not a signatory to the Convention, thenthe procedures outlined in the regulation apply.3zo

Regarding the authentication issue, the BIA re-cently stated as follows:

AUGUST 2012

The regulation governing the authenticationof official records and public documents inimmigration proceedings at 8 C.F.R. ~ 1287.6(2010) does not provide the exclusive meansfor authenticating documents in immigrationproceedings. [Citations omitted.] While asy-lum applicants cannot always reasonably beexpected to have authenticated documentsfrom an alleged persecutor, [citations omit-ted], the failure to attempt to prove the au-thenticity of a document through this or anyother means is significant.3z'

Even more recently, the BIA noted that immigra-tion judges "retain broad discretion to accept adocument as authentic or not based on the par-ticular factual showing presented."322

If an authentication objection is raised by theDHS Attorney regarding any of the applicant's of-ficial records, some potential responses to the ob-jection include the following:

(1) The authentication regulations are not ab-solute rules of exclusion and are not theexclusive means of authenticating recordsbefore an immigration judge.323

(2) An immigration judge has the discretionto determine the issue of the authenticityof a document by reference to the totalityof the evidence.3z4

(3) A failure to comply with the authentica-tion rules goes to the weight of the evi-dence and not its admissibility.32s

(4) An irrunigration judge cannot reject adocument solely based on noncompliancewith the authentication rules.326

(5) Before a document can be rejected basedon a lack of authenticity, there must be ad-ditional reasons to doubt the document'sauthenticity in addition to any noncompli-ance with the authentication rules.32'

(6) Noncompliance with the authenticationrules is not presumptive proof of the fal-sity of a document.328

(7) When an objection is made based on theauthentication rules, an immigrationjudge should give the applicant an oppor-tunity to attempt to authenticate the docu-ments in some fashion.3z9

(8) Authentication can be provided by the tes-timony of a witness with knowledge, in-cluding the applicant.33o


(9) There is a broad standard for determin-ing whether evidence is admissible in a ,/` > ~~removal proceeding: the evidence merely `~: _must be probative, and its use must befundamentally fair.331 Strict adherence tothe authentication rules would violate thisstandard.

(10) Strict compliance with the authenticationrules may be almost impossible.33z Thisis particularly true when the asylum ap-plicant's home country is not a signatoryto the Hague Convention Abolishing theRequirement of Legalization for ForeignPublic Documents.

(11) A good cause exception to the require-ment of authentication exists for asylumclaims as strict adherence to the authenti-cation rules would require an asylum ap-plicant to obtain the cooperation of his orher persecutor or could put the applicant'sremaining family members in danger.333

The authentication rules should not applyto original documents,334 Also, nonofficial docu-ments should not require authentication since theauthentication regulation is limited to official re- ~~ >..,cords.335 `~ , ~ '

If it is determined during the authenticationprocess that one or more of the documents isfraudulent, before this information is used by animmigration judge in making an adverse credibil-ity determination, the immigration judge shouldmake some determination that the applicant hadactual knowledge that the document was fraudu-lent. For example, as noted by Jason Dzubow inan article published in Immigration Law Today,when a person from the applicant's home countryprovided the document, the applicant may haveno idea that the document was fraudulent, andtherefore, the existence of a fraudulent documentshould not be used to determine the applicant'scredibility.336

If the applicant has an issue with respect toauthentication, the applicant's attorney may wishto consult an excellent Immigration Briefing by Vir-gil Wiebe that provides a detailed analysis of thisissue337 as well as a comprehensive article by Su-zanne DeBarry in the Immigration Law Advisor.33s

Offers of Proof. Fed. R. Evid. 103 states that ~.` 1!~"[a] party may claim error in a ruling ... to ex- ̀ __

elude evidence only if the error affects a substan-tial right of the party and . , . a party informs the



court of its substance by an offer of proof, unlessthe substance is apparent from the context." No'particular form of an offer of proof is provided byRule 103, but it generally should inform the courtof the contents of the excluded document or testi-mony, demonstrate its significance, and state thegrounds for admissibility.339 Thus, for example, ifan immigration judge does not allow a witness totestify or does not allow an excluded document tobe marked for identification purposes, an offer ofproof should be made by the applicant's attorneyto preserve the issue for any necessary appeal.

The Rule. Most immigration judges invoke"the Rule" and do not allow witnesses, other thanthe applicant, to be present in the courtroom ex-ceptwhen they testify.34o Most immigration judgesalso will admonish witnesses not to discuss theirtestimony or the case with other witnesses.341 If theapplicant intends to call witnesses, the witnessesshould be notified during their preparation ses-sions that they probably will spend a good bit oftime sitting in the hallway and not in the court-room and that, while in the hallway, they shouldnot discuss their potential testimony with the ap-plicant or any other witnesses. Of course, "the

_.. Rule" does not apply to the applicant.342

~~~~~`~~~_ Expert Witnesses and Expert Reports. As ob-served in nn. 259-266 and accompanying text, Fed.R. Evid. 702 and the federal Daubert standard donot strictly apply to removal proceedings beforean immigration judge, although their spirit shouldbe applicable.343 Thus, if the government offersany expert testimony, such as a forensic documentexaminer, the credentials of the expert shouldmeet the requirements of Rule 702 and Daubert.As further observed in nn. 313-315 and accompa-nying text, hearsay generally is admissible if it isprobative and its use is fundamentally fair. This isparticularly true with respect to experts because,undex the Federal Rules of Evidence, an expert ispermitted to base his or her opinion on hearsayevidence and need not have personal knowledgeof the facts underlying the opinion.3~ An expert'sopinion also may include reasonable inferencesthat the expert draws from available facts anddata.34s An immigration judge who finds an ex-pert witness qualified to testify may give differ-ent weight to the testimony depending upon theexpert's qualifications or the relevance, reliability,and overall probative value of the testimony when

~~ compared to the specific facts at issue in the case.346

,~ ~ Regarding expert reports, i~ the past, someDHS Attorneys have objected to the admissibilityof sworn affidavits or declarations of experts, as-


AUGUST 2012

serting that the expert was not available for cross-examination. This objection can be a particularproblem in pro bono asylum cases where pro bonoexpert witnesses often reside in some other stateor country and cannot make the time available totestify by telephone. Responses to an objection tothe admissibility of expert reports include the fol-lowing. First, as observed in n 309 and accompany-ing text, there is a broad standard for determiningwhether evidence is admissible in a removal pro-ceeding; the evidence merely must be probative,and its use must be fundamentally fair.347 Second,the BIA has recognized the admissibility of expertreports. In Matter o f Exame,348 the Board specificallystated that, among other documents, the followingwere improperly excluded at a removal hearing:"transcripts of court testimony of expert witnessesand Haitian individuals, and the testimony or af-fidavits of alleged corroborative witnesses and/orexperts on conditions in Haiti." Third, several fed-eral appellate courts have held that the summaryexclusion of expert affidavits violated an appli-cant's due process rights.349 Fourth, immigrationjudges and the BIA routinely admit into evidencereports from the U.S. State Department, Amnes-ty International, Human Rights Watch, and evennewspaper articles.35o Since these documents oftenare anonymously written and never verified, it isdifficult to understand why these reports wouldbe admissible when reports from an expert, whosequalifications are known and who is providingsworn testimony through an affidavit or declara-tion, would be excluded.3s~

Objection to Certain Government Forms.DHS Trial Attorneys often will attempt to cross-examine the applicant from one or more govern-ment forms, including Form I-213 (Record of De-portable Alien), Form I-263W (Record of SwornStatements — Witness), and Form I-870 (Record ofDetermination/Credible Fear Worksheet). Theseforms may include alleged statements by the ap-plicant that may be inconsistent with the appli-cant's expected testimony. In view of the provi-sion regarding credibility contained in the REALID Act where minor inconsistencies can now affectthe credibility determination by an immigrationjudge,352 it is important to obtain these statementsas soon as possible so that they can be consideredby the applicant before the individual hearing.3s3

If the DHS Attorney attempts to cross-exam-ine the applicant from one of these statements,possible objections include the following. First,if the applicant has provided an affidavit/dec-laration or an asylum application describing the

AucusT Zoz2

testimony that is now being challenged, then thetestimony was anticipated and is not truly rebut-tal, and thus the statement should have been pro-duced by the government 15 days prior to the in-dividual hearing in a nondetained case.3s4 Second,the government should make the Border Patrolagent, asylum officer, or other person obtainingthe statement available for cross-examination inperson or by telephone; otherwise, the applicant'sdue process rights will be violated, and the use ofthe statement for cross-examination will be fun-damentally unfair.3ss Third, if the Border Patrolagent, asylum officer, or other person obtainingthe statement was not disclosed in a witness listfiled at least 15 days before the individual hearingin a nondetained case, his or her testimony shouldbe excluded.3s6 Fourth, there may be some funda-mental problem with the information describedin the statement. For example, the Border Patrolagent may have conducted the interview in a lan-guage that the applicant did not understand, orthe information contained in the statement maybe internally inconsistent. Fifth, the conclusions ofthe asylum officer may not be relevant since theymay not be based on the same or substantially thesame evidence heard by the immigration judge.3s'

For further information regarding the I-263Wform (Record of Sworn Statements-Witnesses), seenn. 225-235 and accompanying text. For furtherinformation regarding forms from the Asylum Of-fice, see nn. 369-370 and accompanying text.

Use of Affidavits, Sworn Declarations, andUnsworn Statements or Letters. There are threetypes of documentary evidence from witnessesthat often are offered into evidence by the appli-cant at the individual hearing: affidavits, sworndeclarations, and unsworn statements or letters.

Affidavits are defined by the Immigration CourtPractice Manual as follows: "A document in whicha person states facts, swearing that the facts are trueand accurate. The person should sign the affidavitunder oath and the signature should be witnessedby an official, such as a notary public."ass

Sworn declarations also are defined by the Im-migration Court Practice Manual as: "A statementby a person, in which the person states that theinformation is true, to support his or her requestor application. For example, a declaration maylist the facts and then state: 'I declare under thepenalty of perjury under the laws of the UnitedStates of America that the foregoing is true andcorrect.' This statement should be followed by thedate, signature, and printed name of the person


signing."3s9 This definition essentially tracks therequirements of 28 U.S.C.A. ~ 1746, which states:

Whenever, under any law of the UnitedStates or under any rule, regulation, order orrequirement made pursuant to law, any mat-ter is required or permitted to be supported,evidenced, established, or proved by thesworn declaration, verification, certificate,statement, oath, or affidavit, in writing of theperson making the same (other than a depo-sition, or an oath of office, or an oath requiredto be taken before a specified official otherthan a notary public), such matter may, withlike force and effect, be supported, evidenced,established, or proved by the unsworn decla-ration, certificate, verification, or statement,in writing of such person which is subscribedby him, as true under penalty of perjury, anddated, in substantially the following form: (1)If executed without the United States: "I de-clare (or certify, verify, or state) under penaltyof perjury under the laws of the United Statesof America that the foregoing is true and cor-rect. Executed on [date]. [Signature]." (2) Ifexecuted within the United States, its territo-ries, possessions, or commonwealths: "I de-clare (or certify, verify, or state) under penaltyof perjury that the foregoing is true and cor-rect. Executed on [date]. [Signature]."360

,;" 1

In an asylum case from the BIA, the Board rec-ognized the applicability of 28 U.S.C.A. ~ 1746,stating: "We find that an unsworn statement per-sonally executed by an alien that is in conformitywith the requirement of 28 U.S.C. § 1746 is in com-pliance with the affidavit requirement of 8 C.F.R.~ 3.3" (which requires a respondent to file an affi-davit to prosecute an appeal in #orma pauperis).36'

Admissible documentary evidence in removalproceedings, including individual asylum hear-ings, also includes unsworn statements or letters,although an immigration judge may give greaterweight to sworn affidavits or declarations sincethey are under oath.362 Unsworn letters from fam-ily members typically have been admitted into evi-dence in asylum cases,363 The BIA has even notedthat unsworn letters by family members should beproduced if they can be made available. In Matter o fM-D-, the BIA stated: "We do not find it unreason-able to expect some type of corroboration from thesister in the form of a letter or affidavit ....Such ev-idence should be produced where it is available."364,. 1;'~

Similarly, in Yang v. Holder, it is stated by the Fifth ̀~-Circuit Court of Appeals that "[t]he BIA based itsdetermination that Yang did not provide reason-



ably available corroborating evidence on Yang's,failure to provide a letter from his parents detailing`their detention and the search of their house, anda letter from Yang's uncle detailing how Yang's fa-ther was released."36s

In view of the foregoing, the better practicemay be to obtain affidavits from witnesses in theUnited States and, if signing before a notary be-comes aproblem, then a sworn declaration. Withforeign witnesses, the better practice maybe to ob-tain asworn declaration and, if this is not possible,then an unsworn statement or letter. A good dis-cussion of this issue is contained in an ImmigrationBriefing by James Feroli.366

If the affidavit, sworn declaration, or unswornstatement or letter is written in English by a per-son who does not understand English, the evi-dence must include a certificate of interpretationstating that the document has been read to theauthor in a language that the author understandsand that the author understood its complete con-tents before signing the document.367 Further, asstated in nn. 97-102 and accompanying text, anyforeign-language document must be accompaniedby a translation and a certificate of translation,36s

,~ Admissibility of Assessments and Notes ofan Asylum Officer. In an affirmative asylum case,during the interview of the applicant, the asy-lum officer usually will take notes. If the claimis referred to immigration court, the Asylum Of-fice will issue a referral notice to the applicant inwhich statements often are made regarding theapplicant's credibility and the reasons for the re-ferral. Based on EOIR policy, neither the asylumofficer's notes nor the referral notice are to be for-warded to the immigration court. In the EOIR'srevised OPPM 00-01 entitled "Asylum RequestProcessing," it is stated as follows:

Referring the Affirmative Application: If anaffirmative asylum application is not grantedby the Asylum Office and the alien is not ina legal status, the application, along with anysupporting documents, will be referred to theimmigration court by the INS Asylum Officeat the time the charging document is filed.The copy of the application and supportingdocuments referred to the Court may not con-tain any annotation or other information of adeliberative nature regarding the application(other than administrative corrections to theapplication, as affirmed by the applicant'ssignature in Part H of the application). Asidefrom the application and supporting docu-


Au~usT 2oi2

ments, only the ANSIR-generated INS Refer-ral Sheet should be filed with the Court. Un-der no circumstances should any documentcontaining reference to INS credibility find-ings be filed with the Court. If this does occur,the Court Administrator should promptlynotify the INS to discontinue any such filingsand return those documents to INS prior tofiling the application in the ROP.369

The EOIR has stated that this policy does notprevent an immigration judge from admitting asy-lum officer notes or the referral notice at a laterstage of the proceeding:

OPPM 00-01 addresses the documents theAsylum Office should not include when theasylum application is initially referred to theimmigration court. Once proceedings are un-derway, the immigration judge determineson a case-by-case basis what additional evi-dence to admit into the record. This OPPMdoes not preclude the immigration judgefrom admitting evidence into the recordonce the proceeding is underway. If a partybelieves that an immigration judge has im-properly admitted evidence into the record,this argument may be appropriately raisedon appeal to the Board.3'o

For possible objections to the admissibility ofthe asylum officer's notes or the referral notice,see nn. 352-357 and accompanying text.

Right and Scope of Cross-Examination

Generally, an applicant has a right to cross-examine any witnesses presented by the govern-ment.37 An exception exists for national-securityevidence submitted by the government.372 If theDHS Attorney attempts to use a report from theForensic Document Laboratory or an asylum of-ficer's notes, an objection should be raised that theintroduction of such hearsay would be fundamen-tallyunfair because the applicant is not being pro-vided with an opportunity to cross-examine thewitness.373

Fed. R. Evid. 611 (b) limits the scope of cross-examination "to the subject matter of the directexamination and matters affecting the credibilityof the witness." However, the same rule providesthat a trial judge "may, in the exercise of discretion,permit inquiry into additional matters as if on di-rect examination." As observed in nn. 306-308 andaccompanying text, although the Federal Rules ofEvidence are not applicable in immigration courtproceedings,374 immigration judges generally fol-

AUGUST 2012

low the practice of Rule 611 (b) and limit the scopeof cross-examination to the subjects addressedduring the direct examination of the applicant or awitness or issues affecting their credibility.

Rebuttal Evidence

As stated in nn. 78-81 and accompanying text,unless otherwise specified by the immigrationjudge in a particular case, all parties, includingthe government, are required to file all motions,briefs, exhibits, witness lists, and other papers atleast 15 days in advance of the hearing in all cas-es involving nondetained applicants.375 This ruledoes not apply to "exhibits or witnesses offeredsolely to rebut and/or impeach."3'6

In determining the parameters of rebuttalevidence, several federal courts have stated thatit is "evidence introduced by a plaintiff to meetnew facts brought out in [the] opponent's case inchief."37 If the "new facts" were expected, rebuttalevidence should not be allowed.378 The determina-tion of what constitutes proper rebuttal evidenceis within the sound discretion of the court.3'9

If the DHS Attorney attempts to introduce anydocumentary evidence that was not provided to theimmigration court at least 15 days prior to the indi-vidual hearing in the case of a nondetained appli-cant, then, based on the requirements of the Immi-grationCourt Practice Manual, the applicant shouldobject to the introduction of such evidence. DHS At-torneys usually respond to the 15-day objection byarguing that the document is for rebuttal purposesonly based on the applicant's testimony or the testi-mony of another witness, and thus its use could notbe reasonably anticipated. However, if the applicantor other witness has submitted a written affidavitor declaration that contains the testimony beingchallenged or if the asylum application contains thetestimony being challenged, then the DHS Attorneyshould have been able to anticipate the testimony,and thus, he or she is using the back door of rebut-tal when the front door is closed by the 15-day rule.Iiru~nigration judges typically will allow the govern-ment's document into evidence, but an objectionshould be made nonetheless.

Closing Argument

Immigration judges generally will permit a fo-cused closing argument. Before beginning, it maybe useful to ask the immigration judge if there areany specific issues that the judge would like tohave addressed. A typical closing argument willsummarize the testimonial and documentary evi-


deuce regarding the applicant's past persecutionand/or well-founded fear of future persecution(on account of one or more of the five protectedgrounds, the lack of any legal bars to the appli-cant's asylum claim, the applicant's entitlementto humanitarian asylum if applicable, and the ap-plicant's entitlement to withholding of removaland relief under the Convention Against Tortureif applicable. Also, if not covered during the directexamination of the applicant, it often is useful inclosing argument to direct the court's attention tothose exhibits that corroborate the critical parts ofthe applicant's testimony. It is additionally usefulto bring to the attention of the court any recentcase law that may be relevant to the immigrationjudge's decision.

Immigration Judge's Decision

Following the completion of all the evidenceand any final arguments, an immigration judgegenerally will orally inform the parties of his orher decision to grant or deny relief. If the decisionis not accepted by both parties and one party re-serves appeal, the immigration judge generallywill dictate a detailed oral decision into the recordthat summarizes the reasons supporting the deci-sion.380 Since a notice of appeal must be filed with- ~ ~~~~ ~) ~in 30 days of the oral decision,381 the applicant's ~ _.~/attorney should take good notes regarding the im-migration judge's oral decision, at least with re-spect to those issues on which the appeal may bebased, as the written transcript of the hearing willnot be available for a number of months (unlessthe applicant is being detained). Alternatively, theapplicant's attorney can listen to the recording ofthe decision of the immigration judge.382 Occasion-ally, the immigration judge will not issue an oraldecision but will take the case under advisementand later provide a written decision.3s3

In the immigration judge's decision, he or sheusually will make findings regarding the appli-cant's credibility. In the absence of any adversecredibility determination explicitly made by animmigration judge, on appeal, in view of a provi-sion added to the INA by the REAL ID Act, theapplicant has a rebuttable presumption that his orher testimony was credible.3a4

Statistics provided by the Transactional Ac-cess Records Clearinghouse (TRAC) for the years2008-2011 contain the most recent grant/denialrates for asylum cases for each immigration judge (~~ ~~who has decided 100 or more asylum cases dur- ̀~_ing the period covered by the report.385 Anotherrecent TRAC study found that, nationwide, only



12% of applicants without legal representation',were granted asylum, but 54% of applicants who

'~ _ : 'were represented were successfu1.386 Thus, the im-portance of representation is readily apparent.

APPEALS

Detailed requirements for an appeal to theBoard of Immigration Appeals can be found in itsPractice Manual available on the EOIR's website3s'

and in the Immigration Court Practice Manual.388

Do not count on any appellate court reversingthe immigration judge's decision denying asylum,withholding of removal, or Torture Conventionrelief. This admonition is particularly true underthe current "clearly erroneous" standard of reviewat the BIA for an immigration judge's factual find-ings389 and the "substantial evidence" standard ofreview for federal appellate courts for an immi-gration judge's factual findings.390 Further, as dis-cussed in nn. 127-131 and accompanying text, theINA now provides that no appellate court "shallreverse a determination made by a trier of factwith respect to the availability of corroboratingevidence ... unless the court finds ... that a reason-able trier of fact is compelled to conclude that such

~~ corroborating evidence is unavailable."391,.~ ..

The statistics maintained by the EOIR appar-ently do not reflect the number of asylum casesthat are denied by immigration judges and laterreversed on appeal to the BIA.392 However, in astudy appearing in the Stanford Law Review in2007, it was reported that only 11% of the casesappealed in the year 2005 were successful forasylum applicants at the BIA.393 In another studypublished by the U.S. Government Accountabil-ity Office in September 2008, it is stated that BIAdecisions favoring asylum applicants were in theamount of 10% from March 15, 2002, to Septem-ber 30, 2006.394 In a further study completed by theUnited States Commission on International Reli-gious Freedom in 2008, it is stated as follows: "Ofthe asylum cases appealed to the BIA, only 2 to 4percent are reversed."39s

With respect to appeals to federal appellatecourts, in 2011, based on figures provided by theImmigration Law Advisor, a publication of theEOIR, only 13.3% (202 out of 1517) of asylum

_ cases appealed from the BIA to all federal appel-)late courts were reversed.396 Similar figures were

-1 reported by the same publication for 2010; only12.1% (242 out of 1996) of asylum cases appealedto all federal appellate courts were reversed.397


AUGUST 2oiz

Given the poor prospects on appeal if the ap-plicant's case is denied by an immigration judge, .it is even more important now than in the past forthe applicant's attorney to spend all the time thatis necessary to fully prepare the applicant andthe case for the individual hearing in immigra-tion court.

REFERENCES

For further information regarding the prepara-tion and presentation of an asylum case in immi-gration court, the applicant's attorney may wishto consult the following publications.

• Anker, "Law of Asylum in the UnitedStates," ~~ 4:1-7:45 (Thomson West 2012).

• Bates, "Voluntary Departure: Do YouReally Want It? If You Have It, Can YouKeep It?" Immigration &Nationality LawHandbook, p. 123 (AILA 2004-2005).

• Collopy, "No Minor Issue: The Dimin-ished Capacity of Minors in Our Immigra-tion System," 12-04 Immigration Briefings1 (Apr. 2012).

• DeBarry, "Measured Reliance: Evaluatingthe Authenticity of Foreign Documents inRemoval Proceedings," Immigration LawAdvisor, Vol. 4, No. 8 (September 2010).

• Dzubow, "Inside the Forensic DocumentLaboratory: Credible Evidence or Unreli-able Due Process Violations?" pp. 22-26,Immigration Law Today (September/Oc-tober 2008).

• EOIR Revised OPPM 00-01, "Asylum Re-quest Processing" (August 4, 2000).

• EOIR OPPM 07-01, "Guidelines for Immi-gration Court Cases Involving Unaccom-panied Alien Children" (May 22, 2007),

• EOIR OPPM 11-02, "The Asylum Clock"(November 15, 2011).

• Feroli, "Credibility, Burden of Proof, andCorroboration Under the REAL ID Act,"09-06 Immigration Briefings 1 (June 2009).

• Feroli, "Evidentiary Issues in Asylum Pro-ceedings," 10-11 Immigration Briefings 1(Nov. 2010).

• Gallagher, "A Primer on ImmigrationCourt Practice," 08-12 Immigration Brief-ings 1 (Dec. 2008).

AUGUST 20T2

Germain, Asylum Primer, Sixth Edition,pp. 159-328 (American Imn-iigration Law-yers Association 2010).

Greer and Donovan, "Immigration Law inMotion—The Changing Landscape of Mo-tions for Continuance, Change of Venue,Reopening, Remand, and ReconsiderationBefore the Immigration Judges, the Boardof Immigration Appeals, and the FederalCircuit Courts," No. 07-10, ImmigrationBriefings 1 (Oct. 2007).

• Hobbins, "A Practitioner's Guide to Mo-tions to Suppress Evidence and TerminateRemoval Proceedings Due to Constitution-al and Regulatory Violations," 10-10 Immi-gration Briefings 1 (Oct. 2010).

• Hong and Kenny, Legal Action CenterPractice Advisory, "Objecting to VideoMerits Hearings;' American IininigrationCouncil (December 2003).

• Hughes, "Real Faces Real People: Navigat-ing the REAL ID Act," Immigration LawToday, pp. 12-20 (July/August 2005).

• Immigration Court Practice Manual, Exec-utive Office for Immigration Review, Officeof the Chief Immigration Judge (2008).

• Keast, "Using Experts for Asylum Cases inImmigration Court," 82 Interpreter Releas-es 1237-1243 (Aug. 1, 2005).

• Legal Action Center Practice Advisory,"Dent v. Holder and Strategies for Obtain-ing Documents from the Government Dur-ing Removal Proceedings;' American Im-migration Council (June 12, 2012).

IMMIGRATION B RIEFING S

• Legal Acton Center Practice Advisory,"Employment Authorization and Asylum:Strategies to Avoid Stopping the AsylumClock," American Immigration Council(February 28, 2006).

• Legal Action Center Practice Advisory,"Motions to Suppress in Removal Proceed-ings: AGeneral Overview," American Im-migration Counsel (October 12, 2011).

• Legal Action Center Practice Advisory,"Representing Clients with Mental Com-petency Issues Under Matter of M-A-M-,"American Iininigration Council (Novern-ber 30, 2011).

• Legal Action Center Practice Advisory,"Voluntary Departure: Automatic Termi-nation and the Harsh Consequences ofFailing to Depart," American ImmigrationCouncil (July 6, 2009).

• Malphrus, "Expert Witnesses in Immigra-tion Proceedings;' Immigration Law Advi-sor, Vol. 4, No. 5 (May 2010).

• Vail, Essentials of Removal and Relief: Rep-resenting Individuals in Ii~n.migration Pro-ceedings, pp. 116-136 (American Imrnigra-tion Lawyers Association 2006).

• Wiebe, "Maybe You Should, Yes You Must,No You Can't; Shifting Standards andPractices for Assuring Document Reliabil-ity in Asylum and Withholding of Remov-al Cases," 06-11 Immigration Briefings 1(Nov. 2006).

Notes

1. EOIIZ Operating Policies and Procedures 3.Memorandum (OPPM) 08-03 (Amended),"Application of the Immigration Court Prac-ticeManual toPending Cases" (June 20, 2008), 4•appearing at http://www.justice.gov/eoir/efoia/ocij/ oppm08/08-03.pdf.

2. The Iirunigration Court Practice Manual 5'(hereinafter in these notes referred to as the"ICP Manual") can be located on the EOIR's 6website at http;//www.justice.gov/eoir/vll/OCIjPracticeManual/ocij-pagel.htm. It is alsoavailable on Westlaw (FIM-COiJIZTMAN).

Form EOIR-28 can be found on the EOIR'swebsite at http://www.justice.gov/eoir/eoirforms / eoir28.pdf.

Form G-28 can be found on the website of theU.S. Citizenship and Immigration Services athttp://www.uscis.gov/ files/form/g-28.pdf.

Form EOIR 33-IC can be found on the EOIR'swebsite at http://www.justice.gov/eoir/eoirforms / eoir33 /ICadr33.htm.

See EOIR OPPM 11-02, "The Asylum Clock," ;p. 10 (November 15, 2011), appearing at ̀ -http:/ /www.justice.gov/eoir/efoia/ocij/oppmll /11-02.pdf.


IMMIGRATION BRIEFINGS AucusT ZoY2

7. ICP Manual ~ 4.15(n). See EOIR OPPM 08- Guide to Motions to Suppress Evidence and'>~ 04, "Guidelines for Telephonic Appearances Terminate Removal Proceedings Due to Con-_ , by Attorneys and Representatives at Master stitutional and Regulatory Violations;' 10-10

Calendar and Bond Determination Hearings" Immigration Briefings 1 (Oct. 2010); Legal(July 30, 2008), appearing at http://www.jus- Action Center Practice Advisory, "Motionstice.gov/eoir/efoia/ocij/oppm08/08-04.pdf. to Suppress in Removal Proceedings: A Gen-

8. ICP Manual ~ 4.15(n)(iv). eral Overview" (October 12, 2011), appearing9. ICP Manual § 4.15(n)(iii). at http://www.legalactioncenter.org/sites/

10. ICP Manual § 4.15(n)(i). default/files/practice-advisory-motions-to-

11. 8 C.F.R. §§1240.10(a) and 1240.11(c)(1).suppress-in-removal-proceedings-a-general-overview.pdf; Stanley and Swanwick, "Sup-

12. Form EOIR 33-IC can be found on the EOIR's pression: Respondents Look for a Shield andwebsite at http://www.justice.gov/eoir/ Sword in Immigration Proceedings," Im-eoirforms/eoir33/ICadr33.htm. migration Law Advisor, Vol. 2, No. 6 (June

13. ICP Manual ~ 2.2(c) and (d). 2008), appearing at http://www.justice.gov/14. Form AR-11 can be found on the USCIS's web- eoir/vll/ ILA-Newsletter/ILA%o20vo1%202/

site at http://ww-w.uscis.gov/files/form/ar- vo12no6.pdf.11.pdf. 27. ICP Manual ~ 4.15(i).

15. ICP Manual ~ 5.10(c). 28. 8 C.F.R. ~ 1240.26 (a) and (b).16. Id. 29. 8 C.F.R. ~ 1240.26 (a) and (c).17. Id. 30. 8 C.F.R. § 1240.26 (e) and (fl.18. See Matter of Rivera, 19 I. & N. Dec. 688, 690, 31. INA§ 240B(d) [8 U,S.C.A. § 1229c(d)].1988 WL 235426 (B.I.A. 1988).

19. AILA-EOIR Liaison Meeting Agenda Ques-32, See Bates, "Voluntary Departure: Do You Re-

tions and Answers, pp. 10-11 (April 6, 2011)al~y Want It? If You Have It, Can You Keep

~.,.~' available at http://www.justice.gov/eoir/It., Immigration &Nationality Law Hand-

statspub/eoiraila040611.pdf. book, p. 123 (AILA 2004-2005); Legal Action

20. EOIR OPPM 01-02, "Changes of Venue," pp.Center Practice Advisory, "Voluntary Depar-ture: Automatic Termination and the Harsh2-3 (October 9, 2001), appearing at http: / /

www.justice.gov/eoir/efoia/ocij/oppm0l/Consequences of Failing to Depart," Ameri-

OPPM01-02.pdf.can Immigration Council (July 6, 2009), ap-

21. EOIR OPPM 11-02, "The Asylum Clock,"pearing at http://www.legalactioncenter.org/files/default/files/ac_pa_ 022106_O.pdf.

p. 13 (November 15, 2011), appearing athttp://www.justice.gov/eoir/efoia/ocij/

See also Matter of Uelasco, 25 I. & N. Dec. 143,

oppmll / 11-02.pdf.2009 WL4871264 (B.I.A, 2009).

22. Id., p. 7. See nn. 50-77 and accompanying33. 8 C.F,R. ~ 1240.10(fl.

text for a further discussion of the EOIIZ and 34. See INA~ 241(b)(1)(C) [8 U.S.CA. § 1231(b)(1)USCIS asylum clock. (C)]. See also jama v. Immigration and Customs

23. For more information regarding motions Enforcement, 543 U.S. 335, 341, 125 S. Ct. 694,

to change venue, see Greer and Donovan, 160 L. Ed. 2d 708, 2 A.L.R. Fed. 2d 675 (2005).

"Immigration Law in Motion -The Chang- 35. ICP Manual § 4.15(0).ing Landscape of Motions for Continuance, 36. Id.Change of Venue, Reopening, Remand, andReconsideration Before the Immigration

37. ICP Manual § 3.1(b)(iii)(A). See EOIR Revised"AsylumJudges, the Board of Immigration Appeals,

OPPM 00-01, Request Processing,"

and the Federal Circuit Courts," 07-10 Immi-p, 15 (August 4, 2000), available at http://

gration Briefings 1 at 4-6 (Oct. 2007). www.justice.gov/eoir/efoia/ocij/oppm00/

24. 8 C.F.R. ~ 1240.10(c).OPPM00-01 Revised. pdf.

,~ . '`~ 25. 8 C.F.R. § 1240.8(c)38, ~A ~ 208(a)(2)(B) [8 U.S.C.A, ~ 1158(a)(2)(B)].

J 26. For more information regarding motions to39. ICP Manual ~ 3.1(b)(iii)(B).

suppress, see nn. 189-191 and accompany- 40. Id.

ing text. See also Robbins, "A Practitioner's 41. Id.O 2012 Thomson Reuters

35

AUGUST 2012 IMMIGRATION BRIEFINGS

42. See EOIIZ OPPM 11-02, "The Asylum Clock," 71. Id., p. 15.pp. 13-14, (November 15, 2011), appearing 72, Id.at http://www.justice.gov/eoir/efoia/ocij/

~3. Id.oppmll/11-02.pdf.

43. Matter of Interiano-Rosa, 25 I. & N. Dec. 264, ~4. Id.

266, 2010 WL 2516830 (B.I.A. 2010). 75. Id.

44. ICP Manual ~ 3.1(b)(ii). 76. Id.

45. Matter of Interiano-Rosa, 25 I. & N. Dec. 264, 77. For further comments regarding the OPPM,266, 2010 WL 2516830 (B.I.A. 2010). see American Immigration Council, "New

46. Id. Asylum Clock Policies Provide No Significant

47. 8 C.F.R. § 1003.31(c). See Matter of R-R-, 20 I. Systemic Change" (Nov. 21, 2011), appearing

& N. Dec. 547, 549, 1992 WL 194759 (B.I.A. at http: / /www.americanimmigration coun-

1992). cil.org/newsroom/release/new-asylum-

48. ICP Manual § 3.3(d)(iii).clock-policies-provide-no-significant-system-ic-change.

49. Id. 78. ICP Manual ~ 3.1(b)(ii)(A).50. INA ~ 208(d)(5)(A)(iii) [8 U.S.C.A. ~ 1158(d)(5) ~9. Id.

(A)(iii)],

51. INA ~ 208(d)(2) [8 U.S.C.A. ~ 1158(d)(2)]. See 8g0. ICP Manual ~ 3.1(b)(i).

C.F.R. ~ 208.7(a)(1); 8 C.F.R. ~ 1208.7(a)(1). g1. ICP Manual ~ 3.1(b)(ii)(B).

52. 8 C.F.R. ~ 208.7(a)(2); 8 C.F.R. ~ 1208.7(a)(2). 82• ICP Manual § 3.1(c)(ii).

See ICP Manual § 4.15(1). 83. ICP Manual ~ 3.1(c)(ii)(B).

53. Legal Action Center Practice Advisory, "Em- 84. ICP Manual ~ 3.1(c)(ii)(E).ployment Authorization and Asylum: Strate- g5. ICP Manual ~ 3.1(c)(iv).gies to Avoid Stopping the Asylum Clock,"American Immigration Council, pp. 6-13 86. ICP Manual §~ 3.1(c)(iv)(A) and (B). , ~\ : ' \l(February 28, 2006), appearing at http:// 87. ICP Manual ~ 3.1(c)(iv)(C). ~ ~www.legalactioncenter.org/sites/default/ gg. ICP Manual ~ 3.1(d)(iii).files/lac_pa_022806.pdf. g9. ICP Manual § 3.1(a)(iii).

54. Id.90. ICP Manual § 3.1(a)(v).

55. Id.91. ICP Manual § 3.1(c)(iii).

56. A.B.T. v U.S. Citizenship and Ii~ninigration92, ICP Manual § 3.1(c).Services, C.A. No. 11-02108 (W.D. Wash. 2011).

57. EOIR OPPM 11-02, "The Asylum Clock" (No- 93. ICP Manual § 3.1({x.

vember 15, 2011), appearing at http://www. 94. Id.justice.gov/eoir/efoia/ocij/oppmll/11-02. 95. ICP Manual ~ 3.2(e).

~~f' 96. ICP Manual ~ 3.2(c).58. Id., p. 4. 97. 8 C.F.R. § 1003.33.59. Id., p. 5. 98. ICP Manual § 3.3(a).60. Id.

99. Id.61. Id., pp. 5-6.

100. Ramaj v. Gonzales, 466 F.3d 520, 530, 2006 FED62. Id., p. 7. App. 0389P (6th Cir. 2006); Lin v. Gonzales, 15263. Id. Fed. Appx. 475, 481, 2005 FED App. 0865N64. Id. (6th Cir. 2005) (unpublished).

65. Id., p. 8. 101. Nyemb v. Holder, 404 Fed. Appx. 926, 927 n.3

66. Id., p. 9. (5th Cir. 2010) (unpublished); Jiao Jin Li v.

67. Id., p. 10.Holder, 342 Fed. Appx. 55, 56-57 (5th Cir. 2009)

G~ r~68. Id., p. 13. 475 4811i 005>FED A pP• 0865N (6th Cir. 2005)69. Id. (unpublished).

70. Id., pp. 14-16. 102, ICP Manual ~ 3.3(a).

36OO 2012 Thomson Reuters

IMMIGRATION BRIEFINGS AUGUST 2oi2

103. Form I-589 can be found on the USCIS website 113. Special FOIA Processing Track for Individuals~, at http://www.uscis.gov/files/form/i-589. Appearing Before an Immigration Judge, 72

pdf. Fed. Reg. 9107 (Feb. 28, 2007). See USCIS Fact104. 8 C.F.R. ~ 208.6 (a) and (b). If any information Sheet, "Freedom of Information Act" (Feb. 28,

contained in an asylum application or if any 2007), available at http://www.uscis.gov/documentation or reference that the applicant files/pressrelease/FOIAProcessing022807FS.has applied for asylum is disclosed by the U.S. pdf.government to a third party, then this disclo- 114. See Legal Action. Center Practice Advisory,sure creates a new risk for the applicant that "Dent v. Holder and Strategies for Obtainingcan serve as the basis of an independent claim Documents from the Government Duringfor asylum. Dc~yo v. Holder, 2012 WL 2852833, Removal Proceedings," American Immigra-*2 (5th Cir. 2012); Anim v. Mukasey, 535 F.3d tion Council, p. 5 (June 12, 2012), appearing243, 253 (4th Cir. 2008); Lin v. U.S, Dept. of jus- at http://www.legalactioncenter.org/sites/tice, 459 F.3d 255, 258, 39 A.L.R. Fed. 2d 647 default/files/dent_practice_advisory_6-8-12.(2d Cir. 2006). pdf.

105. See Germain, Asylum Primer, 6th Ed., pp. 115. ICP Manual ~ 12.2(c)(ii).413-421 (American Immigration Lawyers As-sociation 2010). 116. Legal Action Center Practice Advisory, "Dent

106. See Kot, The Impact of Cultural Factors onv. Holder aid Strategies for Obtaining Docu-

Credibility in the Asylum Context, Immigrantments from the Government During Removal

Legal Resource Center (1988). Proceedings," American Immigration Coun-cil, p. 5 (June 12, 2012), appearing at http://

107. Istanbul Protocol, p. 46 (Office of the United ~,~,~,~,w.legalactioncenter.org/sites/default/Nations High Commissioner for Human files/dent_practice advisory_6-8-12.pdf.Rights — Geneva, 2004), available at http://

_

www.ohchr.org/Documents/Publications/ 117. INA ~ 240(c)(2)(B) [8 U,S,C.A. ~ 1229a(c)(2)

training8Revlen.pdf.; Examining Asylum~B~~

''~.. 1 Seekers, p. 67 (Physicians for Human Rights 118. Legal Action Center Practice Advisory, "Dent2001), available at https://s3.amazonaws. v. Holder and Strategies for Obtaining Docu-com/PHR/_Reports/examing-asylum-seek- ments from the Government During Re-ers-manual.pdf. moval Proceedings;' American Immigration

108. For a good example of a declaration, see Ger- Council, pp. 11-13 (June 12, 2012), appearingmain, Asylum Primer, 6th Ed., pp. 423-427 at http://www.legalactioncenter.org/sites/(American Immigration Lawyers Association default/files/dent_practice_advisory_6-8-12.2010). pdf..

109. ICP Manual ~ 3.3(a). 119. ICP Manual § 12.2(c)(i).

110. ICP Manual ~~ 1.6(c)(i) and 12.2(a)(i)(A). 120. ICP Manual § 12.2(b) and (c). The EOIR's

111. ICP Manual § 12.2(a)(i)(B). See also ICP Man- website also contains information regarding

ual ~ 1,6(c)(iii), which states that the iininigra- FOIA requests at http://www,justice,gov/

tion courts have "the discretion to provide eoir/mainfoia.html.

parties or their legal representatives with a 121. See "How to Submit a Freedom of Informa-copy of the hearing recording and up to 25 tion Act (FOIA) or Privacy Act Request topages of the record without charge, subject to the Department of Homeland Security;' ap-the availability of court resources .... How- pearing at http://www.dhs.gov/xfoia/ever, parties may be required to file a request editorial 0316shtm#0.under FOIA to obtain these itenns." 122. Matter o f Mogharrabi, 19 I. & N. Dec. 439, 445-

112. See Legal Action Center Practice Advisory, 46,1987 WL 108943 (B.I.A. 1987)."Dent v. Holder and Strategies for Obtaining 123. Matter of Dass, 20 I. & N. Dec. 120, 124-25,Documents from the Government During

1989 WL 331876 (B.I.A. 1989).Removal Proceedings," American Immigra-

`) tion Council, p. 4 (June 12, 2012), appearing 124. Matter of S-M-J-, 21 I. & N. Dec. 722, 729, 1997- at http://www.legalactioncenter.org/sites/ WL 80984 (B.I.A. 1997).

default/files/dent_practice_advisory_6-8-12. 125. Matter of M-D-, 21 I. & N. Dec. 1180, 1183-84,pdf. 1998 WL 127881 (B.I.A. 1998).

O 2012Thomson Reuters37

AUGUST 2012

126. See Rui Yang v. Holder, 664 F.3d 580, 586 (5thCir. 2011). See also Lin v. Holder, 2012 WL2122309, *6 (5th Cir. 2012) (unpublished).

127. INA ~ 208(b)(1)(B)(ii) [8 U.S.C.A. ~ 1158(b)(1)(B)(ii)].

128. Singh v. Mukasey, 543 F.3d 1, 4 n. 1 (1st Cir.2008); Matter o f Almanza-Arenas, 24 I. & N.Dec. 771, 774, 2009 WL 995578 (B.I.A. 2009);Matter of S-B-, 24 I. & N. Dec. 42, 43, 2006 WL3337628 (B.I.A. 2006). See H.R. Conf. Rep. No.109-72 at 2871 (2005). See also Hughes, "RealFaces Real People: Navigating the REAL IDAct;' Immigration Law Today, p. 16 (July/August 2005).

129. INA ~ 242(b)(4) [S U.S,C.A. ~ 1252(b)(4)].

130. See, e.g., Yan Juan Chen v. Holder, 658 Rid 246,252-53 (2d Cir. 2011); Jobira v. Holder, 438 Fed.Appx. 731, 734 (10th Cir. 2011) (unpublished);Rui Yang v. Holder, 664 F.3d 580, 587-88 (5thCir. 2011) ("Our authority to review determi-nationswith respect to availability of evidenceis limited."); Ressa v. Holder, 406 Fed. Appx.841, 842-43 (5th Cir. 2010) (unpublished); Ny-etnb v. Holder, 404 Fed. Appx. 926, 927 (5th Cir.2010) (unpublished); Dhuka v. Holder, 400 Fed.Appx. 927, 929 (5th Cir. 2010) (unpublished).

131. Feroli, "Credibility, Burden of Proof, and Cor-roboration Under the REAL ID Act," 09-06Irrunigration Briefings 1 at 9-11 (June 2009).

132. See http://www.aaanet.org.committees/cfhr/directory.htm.

133. PHR's forensic evaluation request form canbe found at https://s3amazonaws.com/PHR/forms /Asylum-Network-Intake-Form-2011-05-17-filling-reader.pdf.

134. ICP Manual ~ 3.3(g).

135. The country reports on human rights practic-es of the U.S. State Department can be foundat http://www.state.gov/ www/global/hu-man_rights / hrp_rep orts_mainhp. html.

136. INA ~ 208(b)(1)(B)(iii) [8 U.S.C.A. ~ 1158(b)(1)(B)(iii)].

137. Matter of H-L-H- ~ Z-Y-Z-, 25 I. & N. Dec. 209,213, 2010 WL 1220023 (B.I.A. 2010).


141. Id.

142. Id.

143. Id.

144. ICP Manual ~ 3.3(c)(i)(B).

145. ICP Manual §~ 3.3(ii) - (viii).

146. ICP Manual ~ 3.3(d)(iii).

747. Id.

148. ICP Manual ~ 4.16(b)(ii).


150. ICP Manual § 3.3(c)(i)(C).

151. ICP Manual § 4,19(c)(i).

152. ICP Manual ~ 4.19(e).

153. Id.

154. ICP Manual ~ 4.15(o)(iii).

155. ICP Manual §~ 4.15(o)(iii)(C) and (D).

156. ICP Manual § 4.15(o)(iii)(B).

157. See, e.g., Official Airline Guides, Inc. v. Church-field Publications, Inc., 756 F. Supp. 1393, 1399n. 2, 17 U.S.P.Q.2d 1897 (D. Or. 1990), aff'd, 6Rid 1385, 28 U.S.P.Q.2d 1641 (9th Cir. 1993).See also Fed. R. Civ P. No. 43(a).

158. See, e.g., Rehau, Inc. v. Colortech, Inc., 145F.R.D. 444, 446-47, 25 Fed. R. Serv. 3d 484 f "~(W.D. Mich. 1993). ~' .. "

159. See, e.g., Akinwande v. Ashcroft, 380 F.3d 517,519-20 (1st Cir. 2004); Beltran-Tirado v. I.N.S.,213 Rid 1179, 1185-86, 48 Fed. R. Sery 3d 48(9th Cir. 2000).

160. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449,107S. Ct. 1207, 94 L. Ed. 2d 434 (1987).

161. 8 C.F.R. ~~ 1003.35(b) and 1287.4(a)(2)(ii); ICPManual ~ 4.20(a).

162. 8 C.F.R. ~~ 1003.35(b)(2) and 1287.4(a)(2)(ii)(B); ICP Manual ~ 4.20(a).

163. ICP Manual ~ 4.20(b),

164

165

138. Koval v. Gonzales, 418 Rid 798, 807—OS (7th Cir.2005); Niam v. Ashcroft, 354 Rid 652; 659, 63 166.Fed. R. Evict. Serv. 417 (7th Cir. 2004); Gailiusv. I.N.S.,147 Rid 34, 45 (1st Cir. 1998).

139. Bing Shun Li v. Holder, 400 Fed. Appx. 854, 857(5th Cir. 2010) (unpublished); Badasa v. Mu-kasey, 540 F.3d 909, 910-11 (8th Cir. 2008).

140. ICP Manual ~ 3.3(e)(ii).

38

8 C.F.R. ~§ 1003.35(b)(5) and 1287.4(c); ICPManual ~ 4.20(d).

See Legal Action Center, Litigation Clearing-house Newsletter of the American Immigra-tion Law Foundation, Vol. 1, No. 6 (March 3,2006), available at http://www,aila.org/con-tent/default. aspx?docid=18730.

See Special FOIA Processing Track for In-dividuals Appearing Before an Iminigra-tion Judge, 72 Fed. Reg. 9107 (Feb. 28, 2007);USCIS Fact Sheet, "Freedom of InformationAct" (February 28, 2007), available at http: / / ̀~-www.uscis.gov/files /pressrelease /FOIAPro-cessing022807FS.pdf.


-~i


167, However, see nn. 110-121 and accompany-ing text for a discussion of a recent practiceadvisory from the Legal Action Center thatdescribes the benefits of obtaining the appli-cant's file under the mandatory access statuterather than a FOIA request.

168. As noted in nn. 110-121 and accompanyingtext, the mere making of the request by theapplicant's attorney may cause the DHS At-torney to particularly focus on the requestedrecord.

169. For more information regarding subpoe-nas, see Saenz, "Subpoenas in IininigrationCourt;' Iirunigration Law Advisor, Vol. 5,No. 7 (August 2011), appearing at http: / /www.justice.gov/eoir/vll/ILA-Newsletter/ILA%.202011 / vol5no7cr.pdf.

170. ICP Manual ~ 5.10(a).

171. Id.

172. Id.

173.

174.

175

176

177.

178.

For more information regarding motions forcontinuance, see Greer and Donovan, "Immi-gration Law in Motion -The Changing Land-scape of Motions for Continuance, Change ofVenue, Reopening, Removal, and Reconsid-eration Before the Immigration Judges, theBoard of Immigration Appeals, and the Fed-eral Circuit Courts," 07-10 Iininigration Brief-ings 1 at 2-4 (Oct. 2007).

In a July 2012 report from the TransactionalRecords Access Clearinghouse ("TRAC"), it isstated that the average time to resolve cases inimmigration courts is now 526 days. TRAC,"Immigration Backlog; Wait Times, I<eep Ris-ing" (July 19, 2012), appearing at http: / /trac.syr.edu/immigration/reports /286/.

EOIR OPPM 11-02, "The Asylum Clock,"p. 13 (November 15, 2011), appearing athttp: / /www.justice.gov/eoir/efoia/ocij /oppmll/11-02.pdf. See nn. 50-77 and accom-panying text.

See ICE News Release, "ICE's Forensic Docu-ment Lab Serves as Authentication Author-ity; ' August 15, 2011, appearing at http: / /www. ice. gov /news /releases / 1108 / 11081 Jwashingtondc.htm.

See In re O-D=, 21 I. & N. Dec. 1079, 1083, 1998WL 24904 (B.I.A. 1998); Camishi v. Holder,616 F.3d 883, 887-88 (8th Cir. 2010).

See Dzubow, "Inside the Forensic DocumentLaboratory: Credible Evidence or UnreliableDue Process Violations?" Immigration LawToday, pp. 22-26 (September/October 2008).


AUGUST 2012

179. Reno v, Flores, 507 U.S. 292, 306,113 S. Ct. 1439,123 L. Ed. 2d 1 (1993) ("It is well establishedthat the Fifth Amendment entitles aliens todue process of law in deportation proceed-ings."); Pronsivakulchai v, Holder, 646 F.3d 1019,1021 (7th Cir. 2011); Rosillo-Puga v. Holder, 580F.3d 1147,1160 (10th Cir. 2009).

180. See Pasha v. Gonzales, 433 F.3d 530, 535, 69Fed. R. Evid. Serv. 98 (7th Cir. 2005); Zahedi v.I.N.S., 222 F.3d 1157,1165 (9th Cir. 2000).


182. INA § 240(b)(4)(B) [8 U.S.C.A. § 1229a(b)(4)(B)l•

183. See Olabanji v. I.N.S., 973 R2d 1232, 1234-35(5th Cir. 1992). See also Xue Tong Zou v. U.S.Atty. Gen., 367 Fed. Appx. 36, 40-41 (11th Cir.2010) (unpublished) (government's failure foproduce its forensic document examiner atthe hearing, after agreeing to do so, was a vio-lation of due process); Fensong Zhu v. Holder,331 Fed. Appx. 500, 501 (9th Cir. 2009) (un-published) (finding error when report fromthe Forensic Document Laboratory was ad-mitted without affording respondent right tocross-examine document examiner).

184. ICP Manual § 3.1(b)(ii)(A) states that "[o]bjec-tions to evidence may be made at any time,including the [individual] hearing."

185. Dzubow, "Inside the Forensic Document Lab-oratory: Credible Evidence or Unreliable Due.Process Violations?" Immigration Law Today,p. 26 (September/October 2008), citing Kour-ski v. Ashcroft, 355 Rid 1038, 1040 (7th Cir.2004); Corovic v. Mukasey, 519 Rid 90, 98-99(2d Cir. 2008); and Yeimane-Berhe v. Ashcroft,393 F.3d 907, 913 (9th Cir. 2004).

186. For additional information regarding foren-sic document examinations by the DHS, seeWiebe, "Maybe You Should, Yes You Must,No You Can't: Shifting Standards and Prac-tices for Assuring Document Reliability inAsylum and Withholding of Removal Cases,"06-11 Iinn~igration Briefings 1 at 23-25 (Nov.2006).

187. 8 C.F.R. ~1003.35(a).

188. Id.

189. Hobbins, "A Practical Guide to Motions toSuppress Evidence and Terminate RemovalProceedings Due to Constitutional and Regu-latory Violations," 10-10 Immigration Brief-ings 1 (Oct. 2010).

190. Legal Action Center Practice Advisory, "Mo-tions to Suppress in Removal Proceedings: A


General Overview" (October. 12, 2011), ap- and Relief, pp. 303-308 (American Iminigra-

pearing at http://www.legalactioncenter. tion Lawyers Association 2006). ~

~org/sites/default/files/practice-advisory- 213. ABAModel Rule of Professional Conduct No. -motion-to-suppress-in-removal-proceedings- 3.3(a)(3). Similarly, Texas Disciplinary Rulea-general-overview.pdf. No. 3.04(b) states that a lawyer shall not "fal-

191. Stanley and Swanwick, Suppression: Re- sify evidence, counsel or assist a witness to

spondents Look for a Shield and Sword in testify falsely, or pay, offer to pay, or acqui-

Immigration Proceedings;' Immigration Law esce in the offer or payment of compensation

Advisor, Vol. 2, No. 6 (June 2008), appearing to a witness ... contingent upon the content of

at http://www.justice.gov/eoir/vll/ ILA- the testimony of the witness or the outcome

Newsletter/ILA%20vo1%202/vo12no6:pdf. of the case."

192. See ICP Manual ~ 5.10(b). 214. See Applegate, "Witness Preparation;' 68 Tex.

193. See ICP Manual ~ 5.10(d) and (e). L. Rev 277, 279 (December 1989); Abramow-

194. See ICP Manual ~ 5.10(i) and (j).itz and Bohrer, "Handling Witnesses: The

195. See ICP Manual § 5.10(p) and (q).Boundaries of Proper Witness Preparation;'New York Law Journal, Vol. 235, No. 84 (May

196. See ICP Manual § 5.10 (v). 2, 2006).

197. ICP Manual ~ 5.13. 215. Applegate, "Witness Preparation," 68 Tex. L.

198. ICP Manual § 3.1(b)(i) and (ii). Rev 277, 279 (December 1989), referring to

199. ICP Manual ~~ 5.01 et seq. District of Columbia Bar, Legal Ethics Comm.,

200. ICP Manual §~ 3.1(b), 3.1(b)(ii)(A), and 5.2(c).Op. No. 79 (1979).

201. ICP Manual ~ 5.2(b).216. State v. McCormick, 298 N.C. 788, 259 S.E,2d

880, 882 (1979).202. Id. 217. Restatement of Law (Third), The Law Gov-203. ICP Manual ~ 5.2(e), erning Lawyers § 116, Comment b (2000).

204. ICP Manual ~ 5.2(i). 218.

~.~..~:

See, e.g., Bellow and Moulton, The Lawyering '4..

205. Id. Process: Preparing and Presenting the Case,

206. ICP Manual § 5.2(j). pp. 233 (Foundation Press 1978) (recommend-

207. ICP Manual ~ 5.11.ing mock interrogation of a witness).

208. 8 C.F.R. ~ 1003.47(d).219. Berg, "Preparing Witnesses;' 13 Litigation 13,

15 (ABA 1987).209. 8 C.F.R. § 1003.47(g). See EOIR Interim OPPM

"Background220. As a noted trial lawyer has stated: "Ideally

05-03, and Security Investi-gations in Proceedings Before Immigration

the rehearsal should take place a few days be-"Preparing

Judges and the Board of Immigration Ap-fore .... trial." Berg, Witnesses," 13

peals;' p. 2 (March 28, 2005), appearing atLitigation 13,15 (ABA 1987).

http://www.justice.gov/eoir/efoia/ocij/ 221. See INA~208(d)(6)[SU.S.C.A.§1158(d)(6)].

oppm05/05-03.pdf. 222. ABA/BNA Lawyer's Manual on Professional

210. 8 C.F.R. ~§ 208.10 and 1208.10. See Gomez- Conduct, "ABA Model Rules of Professional

Medina v, Holder, 2012 WL 3055575, *5 (1st Conduct" at 01:149 (March 28, 1990). See

Cir. 2012); Quinteros Ramos v. Holder, 412 Fed. Goldfarb, "Limits on Loyalty: Dealing with

Appx. 2, 3 (9th Cir. 2010); Umezurike v. Holder, Clients Who Lie;' Immigration Law Today, p.

610 F.3d 997,1002-03 (7th Cir. 2010); Ogunfuye 36 (May/June 2005).

v: Holder, 610 F.3d 303, 306-07 (5th Cir. 2010). 223. For a good discussion of general admoni-

211. Legal Action Center Practice Advisory, "EOIR tions, see Kerrigan, "Witness Preparation;' 30

Background and Security Check Regina- Tex. Tech Law Rev 1367, 1378-1383 (1999).

tions," American Immigration Council, p. 2 224. As noted by the Restatement of Law (Third),(April 6, 2005), appearing at http: / /www. the Law Governing Lawyers, "[a] lawyer maylegalactioncenter.org/sites/default/files/ suggest choice of 'words that might be em-lac_pa_040605.pdf. ployed to make the witness' meaning clear. ,' ~~

212. See Germain, Asylum Primer, 6th Ed., pp. However, a lawyer may not assist the witness

477-482 (American Irzunigration Lawyers As- to testify falsely as to a material fact." See Sec-

sociation 2010); Vail, Essentials of Removal Lion 116, Comment d (2000).

40O 2012 Thomson Reuters

IMMIGRATION BRIEFINGS AucusT zoz2

225. INA ~ 208(b)(1)(B)(iii) [8 U.S.C.A. § 1158 (b)(1) 235. Feroli, "Credibility, Burden of Proof, and Cor-'~ (B)(iii)]. See In re O-D-, 21 I. & N. Dec. 1079, roboration Under the REAL ID Act;' 09-06~r 1081, 1998 WL 24904 (B.I.A. 1998); Matter of Imnugration Briefings 1 at 7-9 (June 2009).

Pula, 19 I. & N. Dec. 467, 471-72, 1987 WL 236. See, e.g., In re S-P-, 21 I. & N. Dec. 486, 489-90,108948 (B.I.A. 1987). 1996 WL 422990 (B.I.A. 1996); Matter of Fuen-

226. INA ~ 208(b)(1)(B)(iii) [8 U.S.C.A. ~ 1158(b) tes, 19 I. & N. Dec. 658, 662, 1988 WL 235456(1)(B)(iii)]. See Matter of S-M-J-, 21 I. & N. (B.I.A. 1988).Dec. 722, 729, 1997 WL 80984 (B.I.A. 1997). 237. See, e.g., Uzvais v, U.S. Atty. Gen., 478 Rid 513,See also Frangella, The Quality that Makes 517-18 (2d Cir. 2007); Girma v. I.N.S,, 283 RidSomething Worthy of Belief: REAL ID Cred- 664, 667 (5th Cir. 2002), citing Borja v. I.N.S,,ibility Standards and the Parameters of Plau- 175 F.3d 732, 735 (9th Cir. 1999) (en bane).sibility Findings," Immigration Law Advisor,Vol. 5, No. 6 (July 2011), appearing at http:// 238. INA ~ 208(b)(1)(B)(i) [8 U.S.C.A. ~ 1158(b)(1)

www.justice.gov/eoir/vll/ILA-Newsletter/ ~B~~i)]. This provision applies to all asylum

ILA%202011 /vo15no6.pdf. applications filed on or after May 11, 2005, the

227. INA ~ 208(b)(1)(B)(iii) [8 U.S.C.A. ~ 1158(b)(1)date of enactment of the REAL ID Aet. Singhv. Mukasey, 543 F.3d 1, 4 n. 1 (1st Cir. 2008);

(B)(iii)]. See Sharari v. Gonzales, 407 Rid 467, Matter of Almanza-Arenas, 24 I. & N. Dec. 771,474-75 (1st Cir. 2005); Kulitani v, Ashcroft, 340 ~~4, 2009 WL 995578 (B.I.A. 2009); Matter ofRid 1, 4 (1st Cir. 2003). S-B-, 24 I. & N. Dec. 42, 43, 2006 WL 3337628

228. See, e.g., In re Kasinga, 21 I. & N. Dec. 357, 363- (B.I.A. 2006). See H.R. Conf. Rep. No. 109-7264, 1996 4VL 379826 (B.I.A. 1996). at 2871 (2005). See also Hughes, "Real Faces

229. Shah v. I,N,S,, 220 F.3d 1062, 1068 (9th Cir. Real People: Navigating the REAL ID Act;'2000); Garrovillas v. I.N.5.,156 F.3d 1010,1013- Immigration Law Today, p. 16 (July/August14 (9th Cir. 1998); Vilorio-Lopez v. I.N.S., 852 2005).F.2d 1137,1142 (9th Cir. 1988). 239. Shaikh v. Holder, 588 Rid 861, 864 (5th Cir.

230. INA ~ 208(b)(1)(B)(iii) [8 U.S.C.A. ~ 1158(b)(1) 2009).~'~ (B)(iii)]. This rovision a lies to all as lump pp y 240. Matter o f N-M-, 25 I. & N. Dec. 526, 531, 2011

applications filed on or after May 11, 2005, the WL 2297860 (B.I.A. 2011), citing In re J-B-N-date of enactment of the REAL ID Act. Singh ~ S-M-, 24 I. & N. Dec. 208, 214, 2007 WLv. Mukasey, 543 Rid 1, 4 n. 1 (1st Cir. 2008); 1817032 (B.I.A. 2007).Matter o f Almanza-Arenas, 24 I. & N. Dec. 771, 241. Matter o f N-M-, 25 I. & N. Dec. 526, 531, 2011774, 2009 WL 995578 (B.I.A. 2009); Matter of WL 2297860 (B.I.A. 2011). See Feroli, "Cred-S-B-, 24 I. & N. Dec. 42, 43, 2006 WL 3337628 ibility, Burden of Proof, and Corroboration(B.I.A. 2006). See also Hughes, Real Faces Under the REAL ID Act;' 09-06 ImmigrationReal People: Navigating the REAL ID Act, Briefings 1 at 3-5 (June 2009).Immigration Law Today, p. 16 (July/August2005). 242. See In re J-B-N- F~ S-M-, 24 I. & N. Dec. 208,

231. Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009)216, 2007 WL 1817032 (B.I.A, 2007).

(italics original), citing Xiu Xia Lin v. Mukasey, 243. The Restatement of the Law (Third), the Law

534 Rid 162,167 (2d Cir. 2008). Governing Lawyers, specifically states that

232. Wang v. Holder, 569 F.3d 531, 539 (5th Cir.preparation of a witness can include "discuss-

2009), citing Mitondo v. Mukasey, 523 Rid 784,ing the applicability of law to the events in is-

788-89 (7th Cir. 2008). See Mejia v. Holder, 434sue. Section 116, Comment b.

Fed. Appx. 327, 328-29 (5th Cir. 2011) (unpub- 244. See INA ~ 240(b)(1) [8 U.S.C.A. ~ 1229a(b)(1)].

lished); Bing Shun Li v. Holder, 400 Fed. Appx. See ICP Manual ~ 4.16(e).

854, 857 (5th Cir. 2010) (unpublished). 245. 8 C.F.R. ~ 1240.10(c).

233. Lin v. Holder, No. 11-60505, slip copy, at *1(5th 246. Matter of Amaya-Castro, 21 I. & N. Dec. 583,Cir., May 4, 2012) (unpublished). 587,1996 WL 507350 (B,I.A. 1996).

234. Annual Report of the United States Commis- 247. EOIR OPPM 07-01, "Guidelines for Immigra-}

\`sion on International Religious Freedom, p. tion Court Cases Involving Unaccompanied

-J 111 (May 2008), found at http://www.uscirf. Alien Children" (May 22, 2007), appearinggov/images/AR2008/annual%20report%20 at http://www.justice.gov/eoir/efoia/ocij/2008-entire%20document.pdf. oppm07/07-01.pdf.


AUGUST 2oi2 IMMIGRATION BRIEFINGS

248. See also Collopy, "No Minor Issue: The Di- 266. For three useful articles that consider issuesminished Capacity of Minors in Our Immi- regarding the use of experts in asylum cases, ~ ̀ ~

"Usinggration System," 12-04 Immigration Briefings see Keast, Experts for Asylum Cases1 (Apr. 2012). in Immigration Court," 82 Interpreter Releas-

249. INA ~ 240(b)(3) [8 U.S.C.A. ~ 1229a(b)(3)]. See es 1237 (August 1, 2005); Feroli, "Evidentiary

Legal Action Center Practice Advisory, "Rep- Issues in Asylum Proceedings," 10-11 Im-

resenting Clients with Mental Competencymigration Briefings 1 at 5-6 (Nov. 2010); and

Issues Under Matter o f M-A-M-; ' AmericanMalphrus, Expert Witnesses in Immigration

Iinlnigration Council (November 30, 2011),Proceedings," Immigration Law Advisor, Vol.4, No. 5 (May 2010), appearing at http://

appearing at http://www.legalactioncenter. www.justice.gov/eoir/vll/ILA-Newsletter/org/sites/default/files/mental-competency- ILA%202010/vo14no5.pdf.issues-3-8-2012mir.; Tsankov, IncompetentRespondents in Removal Proceedings," Im-

267, A list of all Imi~ugration Judges is located on

migration Law Advisor, Vol 3, No. 4 (Aprilthe EOIR's website at http://www.justice.gov/eoir/sibpages/ICadr.htm.

2009), appearing at http: / /www.justice.gov/eoir/vll/ILA-Newsletter/ILA%202009/vol- 268. See TRAC, "Latest Data in Asylum Decisions

3no4.pdf. by Immigration Court Judges" (July 14, 2011),appearing at http://trac.syr.edu/whatsnew/

250. See nn. 306-308 and accompanying text. emai1.110714.htm.251. ICP Manual § 4.12(a). 269. ICP Manual § 4.9(a)(ii).252. Id. 270. Id.253. See Kerrigan, Witness Preparation, 30 Tex. 2~1. Ardestani v. I.N.S., 502 U.S. 129,134, 112 S. Ct.

Tech L. Rev. 1367,1381-1382 (1999). 515,116 L. Ed. 2d 496 (1991); Marcello v. Bonds,254. 8 C.F.R. ~ 1003.26(c). See ICP Manual ~ 4.17(a). 349 U.S. 302, 305-06, 75 S. Ct. 757, 99 L. Ed.

255. ICP Manual ~ 4.8. But see Abu Hasirah v. De- 1107 (1955).

partment of Homeland Security, 478 F.3d 474, 2~2. ICP Manual ~ 3.3(d)(iii),

~-475 (2d Cir. 2007) (15 minutes late does not 273. ICP Manual ~ 4.11. See EOIR OPPM 04-08,constitute afailure to appear); Alarcon-Chavez "Contract Interpreter Services;' (October 20,v. Gonzales, 403 F.3d 343 (5th Cir. 2005) (same). 2004), appearing at http://www.jusice.gov/

256. ICP Manual ~§ 3.3(g) and 4.16(b)(ii). eoir/efoia/ocij/oppm04/04-08.pdf,

257. ICP Manual § 3.3(g).274. Perez-Lastor v. I.N.S., 208 F.3d 773, 778 (9th Cir.

2000).258. See nn. 161-169 and accompanying text re- 2~5. Silverman, Jobe, and Katzman, Winning Asy-

garding motions to issue subpoenas. lum Cases, p.10-8 (Immigrant Legal Resource259. Matter of D-R-, 25 I. & N. Dec. 445, 459, 2011 Center 2004).

WL 1341569 (B.I.A. 2011). 276. Id.260. See, e.g., Bouchikhi v. Holder, 676 Rid 173, 180 2~~, Perez-Lastor v. I.N,S., 208 Rid 773, 777 (9th Cir.

(5th Cir. 2012); Mudahinyuka v. Holder, 444 Fed. 2000); Matter o f D-R-, 25 I. & N. Dec. 445, 461,Appx. 901, 905 (7th Cir. 2010) (unpublished); 2011 WL 1341569 (B.I.A. 2011).Tun v. Gonzales, 485 F.3d 1014, 1027 (8th Cir. 2~8 Hartooni v. I.N.S., 21 F.3d 336, 339-40 (9th Cir.2007). 1994); Matter of D-R-, 25 I. & N. Dec. 445, 461,

261. Daubert v. Merrell Dow Pharmaceuticals, Inc., 2011 WL 1341569 (B.I.A. 2011).509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 2~9. Singh v. Ashcroft, 367 F.3d 1139, 1144 (9th Cir.(1993). 2004); Matter of D-R-, 25 I. & N. Dec. 445, 461,

262. See Pasha v. Gonzales, 433 Rid 530, 535, 69 Fed. 2011 WL 1341569 (B.I.A. 2011).R. Evid. Serv. 98 (7th Cir. 2005). 280. Matter of D-R-, 25 I. & N. Dec. 445, 461-62,

263. See nn. 176-186 and accompanying text fora 2011 WL 1341569 (B.I.A. 2011).

discussion of Fed. R. Evid. 702 and Daubert in 281. See ICP Manual ~ 3.1(b)(iii)(B).the context of reports from the Forensic Docu- 2g2, ICP Manual § 3.1(b)(iii)(A). ,~ ~ment Laboratory.

283. See ICP Manual ~§ 4.16(c) and (d) for a de- '~-264. ICP Manual §~ 3.3(g) and 4.16(b)(ii). scription of the opening and content of an in-265. ICP Manual § 3.3(g). dividual hearing.


IMMIGRATION BRIEFINGS AUGUST 2012

284. ICP Manual § 4.6(e). See INA § 240(b)(1) [8 303. Cardoza-Fonseca, 480 U.S. at 431. See Abdille v.'~ U.S.C.A. ~ 1229a(b)(1)]. Ashcroft, 242 F.3d 477, 495 (3d Cir. 2001); Chang

-' 285. See Braun v. Lorillard Inc., 84 F.3d 230, 238-39, v. IN.S.,119 F.3d 1055,1066 (3d Cir. 1997).

44 Fed. R. Evid. Serv. 656, 35 Fed. R. Serv. 3d 304. Cardoza-Fonseca, 480 U.S. at 440.217 (7th Cir. 1996). 305. I.N.S. v. Stevic, 467 U.S. 407, 429-30, 104 S. Ct.

286. See Taskett v. Dentlinger, 344 Rid 1337, 1343, 2489, 81 L. Ed. 2d 321 (1984) (withholding); 868 U.S.P.Q.2d 1472 (Fed. Cir. 2003). C.F.R. ~~ 208.16(c)(2) and 1208.16(c)(2) (Con-

287. ICP Manual ~ 4.10(c). vention Against Torture).

288. ICP Manual ~§ 1.6(c)(iii)(A) and (B). See 306. Matter of D-R-, 25 I. & N. Dec. 445, 458, 2011

EOIR OPPM 04-01, "Electronic Devices in the WI, 1341569 (B.I.A. 2011); Matter of Interia-

Courtroom;' p. 1 (Feb. 3, 2004), appearing no-Rosa, 25 I. & N. Dec. 264, 265, 2010 WL

at http://www.justice.gov/eoir/efoia/ocij/ 2516830 (B.I.A. 2010); Matter of D-, 20 I. & N.

opprn04/04-06.pdf, Dec. 827, 831, 1994 WL 284067 (B.I.A. 1994).

289. 8 C.F.R. ~ 1003.28.See Bouchikhi v. Holder, 676 F.3d 173, 180 (5thCir. 2012); Olabanji v. I.N.S., 973 F.2d 1232,

290. Matter of Garcia-Reyes,l9 I. & N. Dec. 830, 832, 1234 (5th Cir. 1992).1988 WL 235470 (B.I.A. 1988) ("It is clear that 307. Johnson v. I.N.S., 971 R2d 340, 343 (9th Cir.objections themselves should be made on the 1992); Matter of D-R-, 25 I. & N. Dec. 445, 458record, or such objections will not be pre- n. 9, 2011 WL 1341569 (B.I.A. 2011).served for appeal. ).

291. EOIR OPPM 03-06, "Procedures for Going308. Matter o f D-R-, 25 I. & N. Dec. 445, 458 n. 9, 2011

Off-Record During Proceedings" (October 10, ~ 1341569 (B.I.A. 2011);Felzcerek v. I.N.S., 75

2003), appearing at http://www.justice.gov/Rid 112, 116 (2d Cir. 1996). See Bouchikhi v.

eoir / efoia / ocij / oppm03 / 03-06. pdf.Holder, 676 Rid 173,180 (5th Cir. 2012).

292. Id. See ICP Manual ~ 4.10(a).309. Rosendo-Ramirez v. I.N.S., 32 F.3d 1085, 1088

~~th Cir. 1994); Bustos-Torres v. I.N~ ., 898 E2diE ~ 293. 8 C.F.R. 1003.25(c). See ICP Manual 4.7. See~ ~ 1053, 1055 (5th Cir. 1990); Matter o D-R-, 25 I.

also EOIR Interim OPPM No. 04-06, Hear- & N. Dec. 445, 458, 2011 WL 1341569 (B.T.A.ings Conducted Through Telephone and Vid- 2011); In re Ponce-Hernandez, 22 I. & N. Dec.eo Conference" (August 18, 2004), appearing ~g4, 785,1999 WL 339052 (B.I.A. 1999).at http://www.justice.gov/eoir/efoia/ocij/ 310. For example, in the United States Districtoppm04/04-06.pdf. Court for the Southern District of Texas,

294. Hong and Kenny, Legal Action Center Prac- any objections to the admissibility of exhib-tice Advisory, "Objecting to Video Merits its must be made at least seven days beforeHearings" (December 2003), appearing at trial by notifying the court in writing of thehttp://www.legalactioncenter.org/sites/de- dispute with a copy of the disputed exhibitfault/files/lac-pa-121203.pdf. and authority. Local Rule No. 46 of the United

295. For further information regarding video hear- States District Court for the Southern Districtings, see Germain, Asylum Primer, 6th Ed., p. of Texas. Further, most docket control orders188 (American Immigration Lawyers Asso- issued by federal judges in the Southern Dis-ciation 2010). trict of Texas require that any objections to the

296. 8 C.F.R. § 1003.25(c); ICP Manual ~ 4.7. qualifications of any expert or the methodol-

297. ICP Manual § 4.7(c).ogy used by an expert must be made by a spe-cific deadline prior to trial.

298. ICP Manual ~ 4.7(d). 311. ICP Manual ~ 3.1(b)(ii)(A).299. INA ~ 208(b)(1)(B)(i) [8 U.S.C.A. § 1158(b)(1) 312. Matter of D-R-, 25 I. & N. Dec. 445, 457, 2011

(B)(i)]. See 8 C.F.R. ~§ 208.13(a) and 1208.13(a). yam, 1341569 (B.I.A. 2011); Matter of Edwards,300. 8 C.F.R. ~ 208.16(b). 20 I. & N. Dec. 191, 196 n. 4, 1990 WL 385757301. 8 C.F.R. ~ 208.16(c). (B.I.A. 1990).

302. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440, 313. Tashnizi v. I.N.S., 585 R2d 781, 782, 4 Fed. R.107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987), citing Evid. Serv. 324 (5th Cir. 1978); Matter of D-R,I.N.S. v. Stevic, 467 U.S. 407, 424-25, 104 S. Ct. 25 I. & N. Dec. 445, 461, 2011 WL 13415692489, 81 L. Ed. 2d 321 (1984). (B.I.A. 2011).


AucusT 2012 IMMIGRATION BRIEFINGS

314. Matter of D-R-, 25 I. & N. Dec. 445, 461, 2011 331. Matter of D-R-, 25 I. & N. Dec. 445, 458, 2011WL 1341569 (B.I.A. 2011). WL 1341569 (B.I.A. 2011); In re Ponce-Hernan- ̀ ~,

315. Guzman-Guzman v Immigration and Natu- dez, 22 I. & N. Dec. 784, 785, 1999 WL 339052 < _ralization Service, 559 F.2d 1149,1150 (9th Cir. ~B•I•A. 1999).1977). 332. See Zhang v. Gonzales, 405 F.3d 150, 153 (3d

316. Matter of Soleimani, 20 I. & N. Dec. 99, 106, Cir. 2005) (The appellate record reflects that1989 WL 331872 (B.I.A. 1989). the immigration judge stated at a preliminary

317. 8 C.F.R. ~~ 287.6 and 1287.6. hearing as follows: "That's one of the more

318. 8 C.F.R. §~ 287.6(c) and 1287.6(c).troubling regulations because it's a regulationthat imposes a requirement upon people to

319. See, for example, http: / /http: / /www.travi- get things authenticated, The reality, I think,sa.com/hague.html. is that it's almost impossible to get that actu-

320. 8 C.F,R. ~§ 287.6(b)(1) and (2) and 1287.6(b)(1) ally done.").and (2). 333. Yan v. Gonzales, 438 F.3d 1249, 1256 n. 7 (10th

321. Matter of H-L-H- F~ Z-Y-Z-, 25 I. & N. Dec. 209, Cir. 2006); Cao He Lin v. U.S. Dept. of Justice,214 n. 5, 2010 WL 1220023 (B.I.A. 2010). 428 F.3d 391, 404-05 (2d Cir. 2005); Gui Cun

322. Matter of D-R-, 25 I. & N. Dec. 445, 458, 2011 Liu v. Ashcroft, 372 F,3d 529, 532, 64 Fed. R.

WL 1341569 (B.I.A. 2011), citing vatyan v. Mu- Evid. Serv. 838 (3d Cir. 2004); Wu Xiong Tao v.

kasey, 508 F.3d 1179, 1182-83 (9th Cir. 2007). Holder, 367 Fed. Appx. 898, 98 (10th Cir. 2010)

323. Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3dunpublished).

Cir. 2006); Zhang v. Gonzales, 405 F.3d 150, 156 334. See Ramaj v. Gonzales, 466 Rid 520, 530, 2006

(3d Cir. 2005); Gui Cun Liu v. Ashcroft, 372 F.3d ~D App. 0389P (6th Cir. 2006).

529, 532, Fed. R. Evict, Sery 838 (3d Cir. 2004). 335. The title of 8 C.RR, ~ 287.6 is "Proof of OfficialSee Matter of H-L-H- f~ Z-Y-Z-, 25 I. & N. Dec. Records."209, 214 n. 5, 2010 WL 1220023 (B,I.A. 2010). 336. See Dzubow, "Inside the Forensic Document

324. Li v. Mukasey, 529 E3d 141, 149 (2d Cir. 2008); Laboratory: Credible Evidence ox Unreli- `~'vatyan v. Mukasey, 508 Rid 1179, 1182-83 (9th able Due Process Violations?" ImmigrationCir. 2007). Law Today, p. 26 (September/October 2008),

325. See U.S. v. Vidacak, 553 F.3d 344, 349-50, 78 available at http://www.immigrantjustice.

Fed. R. Evict. Serv. 565 (4th Cir. 2009); Yan v. org/sites/immigrantjusticeorg/files/5%20Gonzales, 438 F.3d 1249, 1256 n. 7 (10th Cir. Dzubow%20article%20%5Breprint-

2006). p%5dpdf., citing Corovic v. Mukasey, 519 Rid

326. Khan v. I.N.S., 237 F.3d 1144 (9th Cir. 2001); 90, 98-99 (2d Cir. 2008); Kourski v. Ashcroft, 355

Rarrcaj v. Gonzales, 466 Rid 520, 530, 2006 FED F.3d 1038, 1040 (7th Cir, 2004); and Yeimane-

App. 0389P (6th Cir. 2006); Jiang v. Gonzales, Berhe v. Ashcroft, 393 F.3d 907, 9013 (9th Cir.

474 Rid 25, 29 (1st Cir. 2007); Wu Xiong Tao 2004).

v. Holder, 367 Fed. Appx. 898, 908 (10th Cir. 337. Wiebe, "Maybe You Should, Yes You Must,2010) (unpublished). No You Can't: Shifting Standards and Prac-

327. Hua Chen v. Holder, 358 Fed. Appx. 705, 707 tices for Assuring Document Reliability in

(7th Cir. 2009) (unpublished). See Castilho de Asylum and Withholding of Removal Cases,

Oliveira v. Holder, 564 Rid 892, 897 (7th Cir. 06-11 Immigration Briefings 1 Nov 2006).

2009), as modified, (June 24, 2009). 338. DeBarry, "Measured Reliance: Evaluating the

328. Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir. Authenticity of Foreign Documents in Re-

2006). rnoval Proceedings;' Immigration Law Advi-

329. Sukwanputra v. Gonzales, 434 F,3d 627, 636 (3dsor, Vol. 4, No. 8 (September 2010), appearingat http://www.justice.gov/eoir/vll/ILA-

Cir. 2006); Jiang v. Attorney General of U.S., 160 Newsletter /ILA%202010 / vo14no8. pdf.Fed. Appx. 239, 244 (3d Cir. 2005) (unpub-lished). 339. U.S, v. Peak, 856 F.2d 825, 832, 26 Fed. R. Evict.

330. Vatyan v. Mukasey, 508 Rid 1179, 1184 (9thSery 1203 (7th Cir. 1988).

Cir. 2007); Nak Chen v. Holder, 380 Fed. Appx. 340. See Fed. R. Evict. No. 615.

'~748, 752 (10th Cir. 2010) (unpublished); Mat- 341. See U.S. v. Budlanan, 787 F.2d 477, 484-85, 20 -:-'ter of D-R-, 25 I. & N. Dec. 445, 459, 2011 WL Fed. R. Evict. Serv. 402 (10th Cir. 1986); Grego-1341569 (B.I.A. 2011). ry v, U.S., 369 R2d 185,192 (D.C. Cir. 1966).



342. See Fed. R. Evid. No. 615.

~~. 343.I`

Pasha v. Gonzales, 433 Rid 530, 535, 69 Fed. R.- Evid. Sery 98 (7th Cir. 2005); Niam v. Ashcroft,

354 Rid 652, 660, 63 Fed. R. Evid. Serv. 417(7th Cir. 2004) ("Junk science has no moreplace in administrative proceedings than injudicial ones.").

344. Matter of D-R-, 25 I. & N. Dec. 445, 460, 2011WL 1341569 (B.I.A. 2011). See Aguilar-Ramos v.Holder, 594 Rid 701, 706 n. 7 (9th Cir. 2010).

345. Matter of D-R-, 25 I. & N. Dec. 445, 460, 2011WL 1341569 (B.I.A. 2011).

346. Matter o f D-R-, 25 I. & N. Dec. 445, 460 n. 13,2011 WL 1341569 (B.I.A. 2011). Iintnigrationjudges also may give less weight to an expertreport where the expert is not produced forcross-examination, although immigrationjudges should explain their concerns and howthey affect the weight in their decision. Mal-phrus, "Expert Witnesses in Immigration Pro-ceedings;' Iininigration Law Advisor, Vol. 4,No. 5, p. 13 (May 2010), appearing at http: / /www.justice.gov/eoir/vll/ILA-Newsletter/ILA%202010 / vo14no5. pdf.

347. Matter o f D-R-, 25 I, & N. Dec. 445, 458, 2011WL 1341569 (B.I.A. 2011); In re Ponce-Hernan-

`~ dez, 22 I, & N. Dec. 784, 785, 1999 WL 339052(B.I.A. 1999).

AUGUST 201.2

353. See nn. 110-121 and accompanying text for adiscussion of the procedure to use for obtain-ing these DHS statements.

354. See nn. 375-379 and accompanying text for adescription of the scope of rebuttal evidence.

355. Ocasio v. Ashcroft, 375 F.3d 105, 107 (1st Cir.2004). See nn. 371-374 and accompanyingtext for a discussion of the right of cross-examination.

356. See nn. 78-81 and accompanying text fora dis-cussion of the filing deadline for witness lists.

357: For a further discussion regarding the use ofgovernment forms, see Feroli, "EvidentiaryIssues in Asylum Proceedings," 10-11 Immi-gration Briefings 1 at 6-8 (Nov. 2010).

358. ICP Manual at the Glossary.

359. Id.

360. 28 U.S.C,A. § 1746.

361. Matter of Chicas, 19 I. & N. Dec. 114, 1984 WL48593 (B.I.A. 1984).

362. Zuh v. Mukasey, 547 Rid 504, 508-09 (4th Cir.2008).

363. Id. ("But no statute or case law suggests thatdocuments at immigration hearings must besworn.").

364

348. Matter of Exame,l8 I. & N. Dec. 303, 305, 1982WL 190694 (B.I.A. 1982).

349. Niam v. Ashcroft, 354 Rid 652, 660, 63 Fed.R. Evid. Sery 417 (7th Cir. 2004); Tun v. Gon-zales, 485 F.3d 1014, 1028 (8th Cir. 2007). SeeCastaneda-Hernandez v. I.N.S., 826 F.2d 1526, 365.

1530-31 (6th Cir. 1987).

350. See, e.g., Matter of M-A-S-, 24 I. & N. Dec.762, 764, 2009 WL 729481 (B.I.A. 2009); Mat-ter of A-H-, 23 I. & N. Dec. 774, 776, 2005 WL1541121 (B.I.A. 2005).

351. For a good discussion regarding the admis-sibility of expert reports, see Feroli, "Eviden-tiary Issues in Asylum Proceedings," 10-11Innmigration Briefings 1 at 5-6 (Nov. 2010);Keast, "Using Experts for Asylum Cases inImmigration Court," 82 Interpreter Releases1237 at 1239-1240 (August 1, 2005); and Mal-phrus, "Expert Witnesses in Immigration Pro-ceedings," Immigration Law Advisor, Vol.4, No. 5, (May 2010), appearing at http: / /

`~ ~ www.justice.gov/eoir/vll/ILA-Newsletter/ILA%202010 /vo14no5.pdf.

352. See nn. 225-235 and accompanying text.


Matter o f M-D-, 21 I. & N. Dec. 1180,1183,1998WL 127881 (B.I.A. 1998). In re Casillas, 22 I. &N. Dec. 154, 157 n. 3, 1998 WL 484576 (B.I.A.1998) (relevant evidence to prove a marriagecan be provided through "letters or affidavitsfrom family, friends, or acquaintances.").Rui •Yang v. Holder, 664 Rid 580, 587 (5th Cir.2011).

366. Feroli, "Evidentiary Issues in Asylum Pro-ceedings," 10-11 Immigration Briefings 1 at3-4 and 10-11 (Nov 2010).

367. ICP Manual ~ 3.3(a).

368. Id.

369. EOIR Revised OPPM 00-01, "Asylum RequestProcessing;' pp. 13-14 (August 4, 2000), avail-able at http://www.usdoj,gov/eoir/efoia/ocij / opprn00 / oppm00-0lrevised,pdf.

370. AILA-EOIR Liaison Meeting Agenda Ques-tions and Answers, p. 6 (October 28, 2009),appearing at http://www.justice.gov/eoir/statspub / eoiraila102809.pdf.

371. INA § 240(b)(4)(B) [8 U.S.C.A. ~ 1229a(b)(4)(B)l•

372. Id.


373. See Olabanji v. I.N.S., 973 R2d 1232, 1234-35 390. See, e.g., Zhang v. Gonzales, 432 F.3d 339, 344(5th Cir.1992) ("This court squarely holds that (5th Cir. 2005); Weng v. Holder, 562 F.3d 510, ~ ~~.the use of affidavits from persons who are 513 (2d Cir. 2009); Stserba v. Holder, 646 F.3d ~not available for cross-examination does not 964, 971 (6th Cir. 2011); Djadjou v. Holder, 662satisfy the constitutional test of fundamental Rid 265, 272 (4th Cir. 2011).fairness unless the INS first establishes thatdespite reasonable efforts, it was unable to 391, INA ~ 242(b)(4) [8 U.S.C.A. ~ 1252(b)(4)].

secure the presence of the witness at the hear- 392. See 2011 Statistical Year Book of the Execu-ing."); Cunanan v. I.N.S., 856 R2d 1373,1375, 6 tive Office for Immigration Review (FebruaryFed. R. Evid. Serv. 1177 (9th Cir. 1988) (when 2012), appearing at http://www.justice.gov/the DHS attorney stated that the government eoir/statspub/fyllsyb.pdf. Further, as statedwould try to find the respondent's wife for in a study of BIA decisions by the U.S. Gov-the individual hearing but relied on an affida- ernment Accountability Office dated Septem-vit of the wife.instead that was produced for ber 2008, the "EOIR does not track in its datathe first time at the individual hearing, the re- system the specific legal issues underlyingspondent's inability to cross-examine the wife an alien's or DHS's appeal of an immigrationwas a violation of due process).

judge decision to the BIA, nor the BIA's de-374. Matter of D-R-, 25 I. & N. Dec. 445, 458, 2011 cision on each of the issues raised in the ap-

WL 1341569 (B.I.A. 2011); Matter of Interiano- peal." "U.S. Asylum System: Significant Vari-Rosa, 25 I. & N. Dec. 264, 265, 2010 WL 2516830 ation Existed in Asylum Outcomes Across(B.I.A.2010).

Immigration Courts and Judges," Report of375. ICP Manual ~ 3.1(b)(ii)(A). the U.S. Government Accountability Office,376. Id. No. GAO-08-940, p. 52 n.47 (September 2008),377. Lubanski v. Coleco Industries, Inc., 929 R2d 42, appearing at http://www.gao.gov/new.

47, Prod. Liab. Rep. (CCH) P 12784, 32 Fed. items/ d08940.pdf.R. Evid. Sere 1093 (1st Cir. 1991), citing Mor- 393. Ramji-Nogales, Schoenholtz, and Schrag, Ref-

(<.gan v. Commercial Union Assur. Companies, 606 ugee Roulette: Disparities in Asylum Adjudi-F.2d 554, 555, 28 Fed. R. Sery 2d 467 (5th Cir. cation, 60 Stan. L. Rev 295, 358-359 (2007).1979). See Pandit v. American Honda Motor Co.,Inc., 82 Rid 376, 383, 44 Fed. R. Evid. Sery 303 394. "U.S. Asylum System: Significant Variation

(10th Cir. 1996). Existed in Asylum Outcomes Across Immi-

378. Lubanski, 929 F.2d at 47. gration Courts and Judges," Report of the

379. Hickok v. G. D. Searle £~ Co., 496 F.2d 444, 447U.S. Government Accountability Office, No.

(10th Cir. 1974). GAO-08-940, p.52 (September 2008), appear-

380. 8 C.F.R. ~ 1240.12(a) ("The decision of the Im-ing at http://www.gao.gov/new.items/d08940.pdf.

migration Judge maybe oral or written. ).

381. S C.F.R. § 1003.38(b).395. Annual Report of the United States Commis-

sion on International Religious Freedom, p.382. See nn. 110-121 and accom an in text.p Y g 115 (May 2008), appearing at http: / /www.383. ICP Manual § 4.16(g). perdue,edu/cres/iternResources/USDoc/384. INA ~ 208(b)(1)(B)(iii) [8 U.S.C.A. § 1158(b)(1) pdf/uscirf2008.pdf.

(B)(iii)]. 396. Guendelsberger, "Circuit Court Decisions for385. See TRAC, "Latest Data in Asylum Decisions December 2011 and Calendar Year 2011 To-

by Immigration Court Judges" (July 14, 2011), tals," Immigration Law Advisor, Vol. 6, No.appearing at http://trac.syr.edu/whatsnew/ 1, p. 4 (January 2012), appearing at http://emai1.110714.htm1. www.justice.gov/eoir/vll/ILA-Newsletter/

386. See TRAC, "Asylum Denial Rate Reaches All ILA%202012/vo16no1.pdf.Time Low: FY 2010 Results" (September 2, 397. Guendelsberger, "Circuit Court Decisions for2010), appearing at http://trac.syr.edu/240/.

December 2010 and Calendar Year 2010 To-387. See http://www.justice.gov/eoir/vll/qa- tals," Immigration Law Advisor, Vol. 5, No.( ~,

pracmanual/apptmtn4.htm. 1, p. 7 (January 2011), appearing at http:// `~~388. See ICP Manual ~~ 6.1 et seq. www.justice.gov/eoir/vll/ILA-Newsletter/389. 8 C.F.R. ~ 1003.1(d)(3)(i). ILA%202011/vo15no1.pdf.

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