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Merits hearings in asylum cases are formal, adversarial, evidentiary hearings
on the record. INS attorneys act as "prosecutors," attempting to disprove
the applicant's eligibility for asylum. Witnesses are sworn, and both
sides have the opportunity for direct and cross examination.
Deportation hearings are excellent "training courses" for
new litigators, since they are formal, contested trials, but at the same
time there is minimal discovery or motion practice, and rules of evidence
and procedure are relatively relaxed.
General Formalities Of The Hearing
1. RULES OF PROCEDURE
Merits hearings in immigration court are comparable to administrative
law proceedings in other federal or state agencies. However immigration
proceedings are not governed by the Administrative Procedures Act, and
tend to be more informal than those governed by APA standards.
2. RULES OF EVIDENCE
Rules of evidence in asylum hearings are minimal and very casually
observed. Formal presentation of evidence is generally not required.
Judges will simply admit documents or physical evidence, sometimes permitting
argument but rarely requiring formal authentication. Similarly, objections
to evidence, particularly hearsay objections, are rarely made or upheld.
Generally, this very flexible view of the rules of evidence works to
the advantage of respondents. Refugees are rarely able to offer evidence
beyond their own testimony that would stand up to rigorous rules of
evidence. For example, it is understood that producing a third-party
declarant or authenticating a document is simply out of the question,
particularly in the case of an asylum seeker who fled for his/her life.
Thus, many kinds of evidence that would present difficult issues in
other courts may be easily admissible in immigration court. For example,
respondents and other witnesses may testify freely about what other
people told them. Letters from friends or family members may often be
introduced with little difficulty (though not always), as long as they
are accompanied by translations. Documentary evidence, such as newspaper
articles or general treatises are admitted routinely without objection.
Thus, volunteers should not shy away from attempting to admit any evidence
as long as an argument can be made that it is prohibitive of the client's
claim in some fashion. Needless to say, however, the Immigration Judge
will give all of the evidence the weight that he/she thinks it deserves.
Particularly marginal evidence may be admitted by the Judge but viewed
with a great deal of skepticism.
3. THE RECORD
As with the Master Calendar, the formal record of the case is made
on a tape recorder, controlled by the Judge, who may stop and start
the tape at will. Although it has not often been a problem in Chicago,
attorneys should be alert for instances of Judges capriciously turning
the tape recorder off during arguments over evidence or procedure. If
necessary, you should be ready to restate objections on the record and
clearly note that the Judge turned off the recorder inappropriately.
Remember, the tape is the official record of what goes on in the courtroom.
You are not permitted to bring your own stenographer or otherwise make
your own record of the hearing. It is always a good idea to make certain
that names of people, places, and organizations are spelled clearly
for the record. Transcriptions of hearing tapes are often of poor quality,
and transcribers are apparently often completely unfamiliar with foreign
languages or anything associated with other countries. For languages
that do not use a Roman alphabet, such as Pushto, Farsi, or Chinese,
phonetic spelling will have to be used. It should be noted for the record
that the spelling is phonetic and approximate.
4. THE IMMIGRATION JUDGE
Judges in asylum hearings play a very active role and almost always
engage in extensive cross-examination. As of this writing, there are
five Immigration Judges in Chicago. Each conducts hearings in his/her
own particular style. You are strongly encouraged to attend a merits
hearing held before the Judge in their case, for purposes of gauging
how he/she conducts proceedings. If it isn't possible to attend a hearing
before a particular Judge, you should, at a minimum, consult with MIRC
and talk to another volunteer who has practiced before that Judge.
5. THE INS TRIAL ATTORNEY
The INS trial attorney represents the government and generally plays
an adversarial role. As previously indicated, we recommend that you
call 312-353-7317 prior to the hearing to obtain the identity of the
INS trial attorney assigned to your case on that date and to discuss
the merits of your case.
6. INTERPRETERS
There is also a court clerk, who also functions as the official interpreter
when the client's language is Spanish. For other languages, the court
uses part-time interpreters of varying quality, hired through a contract
with the Berlitz school. The INS is represented by one of the trial
attorneys from the local office of the District Counsel.
7. GENERAL LOGISTICS OF THE HEARING
The courtroom is generally arranged in traditional fashion, and the
respondent and her lawyer sit at the table on the left side of the room
(as you face the Judge's bench), while the INS attorney sits on the
right. How testimony is conducted depends on the Judge. Some require
the witnesses to take the witness stand next to the bench, while others
permit the client to remain seated next to the attorney. Some Judges
ask attorneys to conduct examinations from the podium, while others
do not. Deportation hearings are open to the public, although there
are almost never any spectators other than the persons connected with
the case. Exclusion hearings, on the other hand, are considered to be
closed to the public unless the respondent waives the right. It should
be waived if the respondent or attorney wants other people present,
such as friends or observers. Witnesses in either kind of proceeding
are virtually always excluded from the courtroom on the government's
motion. They should be warned to bring along a good book to read while
they wait in the hall.
The Hearing Process
1. ARRIVING AT THE COURT
Asylum hearings usually begin promptly, so you and your client should
arrive at 55 East Monroe Street, 19th Floor well in advance of the scheduled
time.(Clients who are in detention do not have their hearings at
55 East Monroe Street, 19th Floor. Instead, these clients appear in
a courtroom on the basement level of the INS building at 10 West Jackson
Boulevard.) You should first report to the clerk at the window in
Suite 1900 to acknowledge that you and your client are present and ready
to go for a hearing before a particular Judge. The clerk will ask you
and your client to wait until the courtroom is opened to enter.
2. BEGINNING THE HEARING
a. Off The Record Formalities
Before the start of the hearing, the Judge will generally engage
in a substantial amount of off-the-record conversation, reviewing
the file, identifying exhibits, and clarifying issues, such as the
status of previously filed motions, or the number of witnesses the
respondent will call.
b. Correcting And Updating Information
At the beginning of the hearing on the record, the defense attorney
is generally given a chance to update or correct any information on
the asylum application or other materials previously submitted. It
is important to make certain that names, addresses, dates, A-numbers,
etc. are up-to-date and correct. In addition, where the attorney knows
there will be substantial or even minor inconsistencies between testimony
and earlier submissions, such as statements given to an INS officer
or statements made during the credible fear interview, an attempt
should be made at this point to correct inaccuracies and to state
clearly the reasons for the inaccuracies.
Oftentimes asylum seekers have submitted their own pro se
applications before seeking MIRC assistance, and these may have substantial
errors. For example, many clients coming from Texas have unwittingly
filed boilerplate applications purchased from unethical "notarios"
or others and signed applications whose contents they know nothing
about. Additionally, some clients initially file applications containing
asylum claims that they believe are more acceptable to U.S. Judges
and lawyers, but which subsequently turn out to be fabrications. If
this is the case, you should offer correct information and a strong
explanation for the inconsistencies as early as possible--before the
hearing by means of a detailed affidavit from the client if possible
or at the outset of the hearing and affirmatively through the client's
own testimony.
c. Identifying And Admitting Exhibits
Next the Judge will go through the process of admitting exhibits.
Generally, the Notice to Appear and related materials have already
been admitted as initial exhibits and the asylum application along
with all attached materials will be identified and admitted as a group
exhibit. The Judge will simply identify all offered exhibits and ask
if there are any objection. There are generally no objections to this,
but if the INS attorney does object to a particular piece of evidence,
the Judge will usually permit brief arguments and rule quickly. Occasionally,
specific items such as expert witness affidavits or curriculum vitae,
or pieces of direct evidence, such as letters or documents, will draw
objections that the Judge is not comfortable ruling on at that point.
In the circumstances, the Judge may instead reserve his/her ruling
until the attorney presents the evidence during the course the case.
3. OPENING STATEMENTS
Some Judges permit opening statements, while others do not. Some will
not permit them if the attorney has filed a pre-hearing memorandum.
You are encouraged to check with MIRC or to ask the Judge at Master
Calendar what his/her preference is. Either a pre-hearing memorandum
or an opening statement is a very good idea, as both are vehicles to
briefly summarize the client's case and, in cases where it isn't clear
that the case falls within the boundaries of refugee law, to cite supporting
case law and distinguish problematic case law. The Judge will review
the file and read concise memoranda a day or so before the hearing,
and in most cases, will be prepared to issue his oral decision immediately
after the close of the hearing. A good memorandum and opening statement,
when permitted, can be critical.
4. EXAMINATION OF WITNESSES
Examination of witnesses is largely the same as in most courts. The
respondent offers her case first, conducting direct examination, followed
by cross-examination by the INS trial attorney, and then by redirect
examination where necessary.
a. Direct Examination
Attorneys should be well-prepared for direct examination and the
client should be well-rehearsed in how to conduct himself/herself.
The client should be advised to answer questions succinctly without
engaging in long narratives, and should state clearly when he/she
does not understand a question. Since asylum hearings are brief, typically
scheduled for three or four hour time slots, direct examination should
be prepared with an eye on the clock.(Some Judges are willing to
schedule additional hearing time at a later date if it becomes clear
that testimony will not be completed by the end of the allocated time
period. Other Judges, however, will absolutely not continue the hearing
and will instead close the case and issue their decision regardless
of how incomplete the evidence. You should consult with MIRC staff
or consulting attorneys about the practices of individual Judges.)
Preliminary information should be gotten out as quickly as possible.
Duplicative information can and should be eliminated, where there
is no particular reason to bring it out in testimony. Leading questions
are generally objected to, and the objections are generally sustained.
To avoid time-consuming arguments, you should simply prepare the client
in advance on how to answer non-leading questions.
b. Cross-Examination
After direct examination, the INS trial attorney will conduct cross-examination,
generally focusing on credibility. Again, though there are essentially
no rules of procedure or evidence, you should raise objections when
the questioning is inappropriate. Generally, the trial attorney's
cross examination is minimal. Redirect is permissible and strongly
recommended where cross-examination has raised damaging issues.
c. Examination by the Immigration Judge
All the immigration Judges will usually conduct their own extensive
examination, generally after both direct and cross is completed by
the attorneys. Some Judges, however, will interrupt direct and cross-examination
repeatedly and extensively, which can disrupt the flow of the attorney's
questions and rattle the client. The Judge's examination can present
serious problems, since very often the questions are such that, if
they were asked by an attorney in any other court proceeding, they
would be subject to strong objections. However, since the Judge is
doing the questioning, and typically believes he/she has a duty to
actively question the respondent, there may be little you can do about
it. Where questions are inappropriate or offensive, you should attempt
to state your objections on the record and make note of the issue
for purposes of a Notice of Appeal, if necessary. In extreme cases,
you might wish to attempt to instruct your client, on the record,
not to answer a particular question, most likely based on the Fifth
Amendment right against self-incrimination. However, the Judge is
nonetheless likely to insist that the question be answered anyway,
and you must weigh the value of such aggressive tactics against the
probability that it might affect the Judge's decision negatively.
Sometimes the Judge's questions are not inappropriate or offensive,
but may simply be confusing. Questions previously asked may elicit
inconsistent, incoherent, or non-responsive answers. One remedy may
be to respectfully suggest to the Judge a different manner of wording
the question or to simply suggest to the Judge that the client is
confused or may not have understood the translation of the question.
Another remedy may be to request an opportunity to conduct a brief
additional redirect after the Judge has completed his questioning,
in order to clarify any confusion or explain any inconsistencies or
issues affecting the Judge's estimate of the witness' credibility.
5. CLOSING STATEMENTS
Few Judges permit closing statements, and in any case they are considerably
less valuable than opening statements or pre-hearing memoranda. However,
where testimony in the hearing has raised specific questions of law
or fact, you may wish to ask for the opportunity to address them very
briefly on the record.
The Decision Of The Immigration Judge
Typically, the Judge will issue his oral decision immediately at the
close of the case. He may simply discuss what his decision would be and
on what grounds he has decided, or he may recess the hearing for half
an hour and return with a decision which will be read into the record.
Other times, the Immigration Judge may continue the case for a period
of time in order to produce a written decision--generally, when a novel
or highly debatable point of law is at issue. However, this is less common.
When the Immigration Judge issues his decision, whether favorable or unfavorable,
the respondent receives only a minute order form filled out and signed
by the Judge.
When the Judge is orally rendering his decision, the attorney should
pay careful attention and make note of the bases for the decision, and
any areas where the Judge misstates, misinterprets, or overlooks evidence
or matters of law. If the respondent loses, the Notice to Appeal that
is filed must state specific grounds justifying the appeal, not just a
general statement of boilerplate language.
After the decision has been issued orally, each side will be asked whether
they choose to reserve appeal. If you win, the INS will in most cases
reserve appeal--and on many occasions, they actually do file a Notice
of Appeal. (After the hearing on the merits, please notify MIRC of the
outcome and provide MIRC with a copy of the order).
NOTE: This
is meant only as a brief guide to asylum practice and does not purport
to discuss all aspects of immigration practice related to asylum proceedings.
Other sources should be consulted when there are any questions regarding
current law and procedure. Included in this manual are references to comprehensive
legal resources. This
information was last updated in June of 1999. As there may have been changes
in the law or policy since this time, please contact the Midwest Immigrant
and Human Rights Center if you need clarification or have any questions.
Phone: 312-629-1960. E-mail: mirc@tia-mirc.org.
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