Increasing Reliance on Expert Witnesses in Immigration Cases: A Catch-22?

Lawyers increasingly rely on expert witnesses in drugs liability cases, toxic torts cases, criminal cases, and immigration cases. However, an increased reliance on expert witness by immigration asylum attorneys can feel like a catch-22 for some asylum applicants.

Although an applicant’s testimony is supposed to be sufficient to prove his or her case for asylum, immigration judges often expect applicants to provide corroborative evidence. If an applicant provides expert testimony, however, immigration judges may refuse to hear it for biased and unjustified reasons. At the same time, providing expert testimony augments the increasing expectation that other applicants should provide the same.

Utility of Expert Witnesses in Immigration Cases

Expert witnesses are potentially very useful in immigration, particular asylum, cases.

Individuals can apply for asylum if they face persecution in their home country. In such cases, country experts can help an immigration judge assess the risks of persecution in the applicant’s country of origin or on laws related to or cases of persecution and torture. Psychological experts can help explain how applicants may exhibit signs of post-traumatic stress disorder.

One case study by The Expert Institute provides a useful example for how an expert witness can help immigration judges in adjudicating an immigration claim. In the case study, an individual faces deportation unless he can prove that he will more likely than not be tortured upon returning to his country of origin, China. Presenting an expert witness on the applicable laws in China would help the judge to understand the consequences of deportation and to make an informed decision about whether to order deportation.

Barriers to Accessing Expert Witnesses

Despite the obvious utility of expert witnesses, it seems that few immigration cases actually involve expert witnesses.

One author found that in close to 3,000 asylum appeals filed by South Asians, fewer than 20 explicitly mentioned the presence of an expert witness. A quick search in the Westlaw database of Board of Immigration Appeals (BIA) decisions shows that of tens of thousands of decisions, only about 200 explicitly mention experts in any capacity.

The low numbers can be explained by the procedural and monetary barriers to retaining expert witnesses.

Applicants for asylum are required to follow certain procedural steps in order to present expert testimony. These steps include providing a witness list at least 15 days before the hearing with detailed information about the proposed testimony. Though simple, this procedural step can prove insurmountable for individuals without attorneys.

Finding and preparing an expert witness for an immigration proceeding requires resources many applicants do not have. It requires an understanding of the applicable immigration laws and the burdens of proof, in addition to an ability to identify and retain an appropriate expert witness.

Most individuals do not have the resources to find and to hire expert witnesses to support their asylum claim. Recent data suggests that about 50% of unaccompanied children, and fewer than 30% of families with children, are represented by an attorney in removal proceedings. Moreover, the fees that many experts charge makes the process prohibitively expensive.

The U.N. Refugee Handbook recognizes that although the burden of proof is on applicants to prove their claims, applicants often lack the resources to produce all necessary evidence. Along those lines, U.S. law only requires that an applicant’s testimony be credible.

Nevertheless, immigration resources routinely recommend finding expert witnesses to help win immigration cases.

The Standard for Admitting Expert Testimony in Immigration Court

When asylum applicants do provide expert testimony, the admission of such testimony is governed by vague standards.

The usual rules for when an expert is allowed to testify, codified by the Federal Rules of Evidence and Daubert v. Merrill Dow Pharmaceuticals, do not bind immigration proceedings. Instead, immigration judges enjoy a vast amount of discretion concerning the evidentiary rules to be applied in their courts.

The BIA has, in cases as Matter of D-R-, used the Federal Rules of Evidence as guidance in determining whether evidence should be admitted. Circuit courts have also noted that admissibility of evidence under the Federal Rules supports admission of evidence to accord with due process requirements. Similarly, though the Daubert standard does not apply to expert testimony, “the spirit of Daubert” still does.

Though these rules provide guidance in evidentiary determinations in immigration court, the test for the admissibility of evidence, as reiterated by the BIA in Matter of Y-S-L-C-, is simply whether the evidence is probative and its admission is fundamentally fair.

Admission of Expert Testimony

This lack of formal, binding rules of evidence in immigration courts theoretically helps applicants lacking the resources to find evidence which meets the rigorous federal evidentiary standards. However, according to some scholars, it has contributed to what Judge Richard Posner has called a “tension between judicial and administrative adjudicators.”

Judge Posner observed that in 2005 alone, the Seventh Circuit overturned 40% of appealed BIA decisions, as compared to only 18% of other civil matters involving the federal government as an appellee. He lamented that this tension arises out of the poor adjudication of immigration cases, which have “fallen below the minimum standards of legal justice.”

In some cases, the immigration judges’ decisions do not even comport with the basic threshold rule of admissibility set by the BIA, that the evidence is probative and its admission fair.

In Lopez-Umanzor v. Gonzales, for example, the immigration judge refused the applicant’s requested expert testimony concerning domestic violence, claiming that the expert testimony would merely repeat the applicant’s stories about domestic violence. The Ninth Circuit Court of Appeals remanded the case, finding that prejudging the utility of expert testimony violates the applicant’s due process rights.

In one extreme case, the Matter of Y-S-L-C–, the BIA found that an immigration judge “bull[ied]” the applicant and erroneously rejected the applicant’s testimony as being not in compliance with the Federal Rules of Evidence. The applicant tried to testify about his personal experiences and the trauma he had suffered, but the judge incorrectly suggested that he needed to be qualified as an expert witness in order to testify. The judge went so far as to ask the applicant, “Have you ever lectured on a professional level on psychology?”

Other cases show disparities in the ways immigration judges treat expert testimony offered by applicants and by the government.

In Tun v. Gonzales, the immigration judge refused to allow the applicant’s trauma expert to testify, because she had never traveled to the applicant’s country of origin and she had not specialized in psychology or psychiatry, though she was a practicing physician who worked extensively with trauma victims. The immigration judge additionally found that she would be a biased witness because she worked for a human rights organization.

Meanwhile, in a different case, Pasha v. Gonzales, the government proffered an expert witness against the applicant, an Albanian national seeking asylum from political persecution. The government’s expert sought to prove that the documents, allegedly printed by the Albanian government, were forged. Even though the expert did not know Albanian and had no knowledge of the Albanian government’s printing resources, the immigration judge admitted the testimony.

The circuit courts in both cases found that the immigration judges erred and remanded the cases.

Form of Evidence

Immigration judges are also inconsistent in the forms of testimony they allow, whether it is in the form of an affidavit or written report, live testimony, and/or telephonic testimony.

It seems that when a written report or affidavit is available, immigration judges often exclude the live or telephonic testimony of the expert. Circuit courts have upheld these decisions in many cases, as in Hamid v. Gonzales.

In certain cases, however, as in Zolotukhin v. Gonzales, the Ninth Circuit found that the immigration judge violated the applicant’s due process rights by refusing to hear testimony from the proffered expert witness. The judge relied on an article written by the expert, but the Ninth Circuit court in Zolotukhin found that the expert’s testimony could have both verified the judge’s interpretation of the written article and provided additional information not found in the written materials.

In weighing the value of written reports, the BIA, in Matter of H-L-H- & Z-Y-Z-, held that State Department reports on country conditions are “usually the best source of information on conditions in foreign nations.”

However, some circuit courts have found that State Department reports are not necessarily the most reliable evidence. In Koval v. Gonzales, the Seventh Circuit reversed an immigration judge’s decision to exclude a country expert’s testimony while relying heavily on a State Department country conditions report. The Seventh Circuit observed that State Department reports are anonymous in authorship and provide information more relevant to the United States’ relationship with the country than on the individual conditions relevant to the case.

Some experts also note that some State Department reports are produced solely for the asylum and immigration offices and are not publicly available, calling into question their bias.

Conclusion

The relaxed standards and broad discretion accorded immigration judges could potentially help asylum applicants with presenting evidence to bolster their claims. However, they perversely seem to make it more difficult for asylum applicants to have their expert testimony accepted in immigration court. Immigration courts should not both expect applicants to present expert testimony and also hold impossible standards for admitting such evidence.