© Attorney Farhad Sethna 2013
Testifying in immigration court can be a tricky matter. First of all, there are no rules of evidence in immigration court. There are also very few rules of procedure. At any time during the immigration proceeding the immigration judge can interject and ask the witness a question. Sometimes, the immigration judge might even take over questioning from either the defense attorney or from the government (DHS) attorney. Discussion of an immigration judge’s controlling behavior can be found in two other articles on this blog, “Recognizing a Controlling Immigration Judge”, and “Dealing with a Difficult Immigration Judge.”
Many DHS attorneys also ask pointed and detailed questions of the witnesses. Oftentimes, they will delve into the witness’s immigration past. This may cause some confusion and concern to a witness, especially if he or she does not wish to discuss his or her case in open court. Sometimes, a witness may also be concerned because he or she has relatives or friends who may not be documented and does not want to provide answers which may identify such individuals as being undocumented and therefore, potentially subject to removal as well. Given these issues, it is very important to prepare your immigration court witness thoroughly and from the “ground up”.
What issues should the witness be prepared for?
Questions regarding the witnesses’ background, family and education:
• The witness’ full name and current address, their current immigration status.
• Witness’s occupation and how he or she came to know the respondent.
• Witness’s education and experience, if testifying as an expert.
• The witness’ own immigration history, family in the United States.
Questions regarding the respondent’s case:
• The witness’ background and knowledge of circumstances surrounding the respondent’s case and other similar cases.
• How the witness knows the respondent and for how long.
• Whether the witness is familiar with the respondent’s case.
• Whether the witness has discussed the case with the respondent.
• Whether the witness has knowledge of cases similar to the respondent’s.
• Whether the witness has knowledge of the outcome of cases similar to the respondent’s.
• Knowledge of specific facts and circumstances in the respondent’s case.
Lets illustrate this preparation by means of an example:
Say the respondent has filed an application for asylum, seeking refuge in the United States from atrocities that he or she feels will befall him if he is returned back to his native country. Let’s say these atrocities are because of the respondent’s particular tribal ethnicity. The witness in such a case should be well aware of the issues surrounding the respondent’s case. He or she may be from the same tribal group. If possible he or she should have knowledge of atrocities committed against other members of the same tribal group due to their tribal affiliation. The witness should be able to indicate whether the government in that country is able to assist or protect individuals from that particular tribal group and if not, why not.
As you can see, this list could be very expansive. The witness must know the respondent’s case and be familiar with other facts and circumstances relating to the case so that he or she can answer virtually any question that may be posed either by the respondent’s attorney, by the government’s attorney, or by the judge.
How do you prepare a witness?
With the respondent’s permission, of course, discuss the respondent’s case with the witness. Go over any application for relief that the respondent has filed – it may be for Asylum, for Cancellation of Removal, for Removal of Conditions on Permanent Residence, for good moral character following an application for a fraud waiver, or any other such application for relief. While the respondent may be anxious or ashamed by behavior that has put him or her in such a predicament, advise both the respondent and the witness that immigration court proceedings are generally closed to the public. This is especially true in cases involving Asylum and Withholding and Convention against Torture relief, as well as in cases involving battered or abused spouses. In deserving cases either a respondent or the attorney can ask the court to have a “closed” hearing, meaning that nobody other than the respondent, USICE attorney and the court personnel can be present in the courtoom.
Elicit answers of all of the points above from the witness. Make the witness aware that he or she may be asked some probing and potentially invasive questions. He or she should be prepared to answer those questions. Remind the witness that he or she will be under oath, so he should tell the truth. Make sure that the witness understands that if he or she does not know the answer to a particular question, he or she should indicate that he or she does not know, rather than guessing an answer. If the witness wants to make an educated guess, then the witness should indicate that his or her answer is an educated guess, it is not a fact that is known for sure to the witness.
Immigration court is no place for weakness. The respondent and or the witness must be equally strong and committed to the success of the case. They must be able to articulate the basis for the relief that is being sought and support a respondent by confirming the facts of the case and by showing that he or she is a person of good moral character.
Copyright, Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.