Representing Asylum Seekers in Immigration Court

Representing Asylum Seekers in Immigration Court Jodi Ziesemer, Esq. New York Legal Assistance Group (NYLAG) Myriam Sanchez Hildenbrand, Esq. Sanchez HildenbrandLaw Offices

Preparing for An Asylum Case Collecting Evidence

Burden of Proof • Burden of proof is ALWAYS on you and your client 8 C.F. R. 208.13(a) • Testimony alone, if credible, persuasive, and specific, can be sufficient to sustain burden of proof • Corroborating evidence should be provided where reasonable and, if unavailable, your client must be able to articulate steps taken in an attempt to obtain corroboration and why those steps were unsuccessful • Think broadly about what is corroboration

Evidence in Removal Proceedings • Federal Rules of Evidence do not apply to immigration court • Relevance and fundamental fairness are only bars to admissibility of evidence. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010) • Relevance: tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable • I-213: “inherently trustworthy” unless it contains information that is “inaccurate or obtained by coercion or duress” Matter of Gomez-Gomez, 23 I&N Dec. 522 (BIA 2002) • Follow Immigration Court Practice Manual when filing evidence • Number pages • Table of Contents • 15 day submission deadline unless specified earlier

Types of Evidence

Types of Evidence Continued • Respondent’s Declaration/Affidavit • Documents Proving Particular Circumstances of Respondent • Medical Records • Select excerpts but have entire record available on day of court • Verify authenticity and establish chain of custody of any documents used • Letters or declarations from family members or friends (notarization is preferred) • In US: Should be available to testify so more weight is given • Outside US: Can produce individual to US Embassy Abroad in order to testify. Judge Needs to grant this request • Country Conditions • General Reports Written by Reputable Human Rights Agencies (DOS, HRW, Amnesty International, Refworld) • Reputable Newspapers (Insight Crime, New York Times, The Guardian) • Laws in the Country • Expert Report Written For The Case • Mental Health Evaluation if there is a 1 year bar issue, establishing persecution, or if testimony will be impacted • Discretionary Evidence • Taxes! • Family Ties • Medical Needs

Client’s Affidavit • In his own voice rather than attorney’s voice • All relevant facts rather than all facts about him • Will be subject to cross-examination and credibility will be assessed in court • Written statement will be compared to in court testimony • May wish to be vague on dates • Should include all relevant facts on persecution or risk a lack of credibility finding

Country Condition Expert • Where to Find One: (some examples) • CGRS – children, gang and gender based claim • International Refugee Rights Initiative: Rights in Exile Program • Professors at Universities • What to look for: • Travel to specific country • Research on particularities around the case • Experience testifying in court • Qualify the expert: • CV • Voir dire: (institutional affiliation and publications)

Mental Health Expert • Not needed in every case! • Some places that given free or low cost evaluations: • Physician for Human Rights • Health Right • Survivors of Torture Program at Bellevue • Terra Firma for children in NYC • What to try to have included in evaluation: • Corroboration of the respondent’s story (ensure no contradictions) • Mental Health Diagnosis (ensure professional has the ability to diagnose ) • Impact that the diagnosis has on the individual • How it impacts their life on a day to day basis • How it could impact testimony in court • How it would impact the individual if he were to be deported

Legal Memorandum and Briefs • Good idea to prepare a legal memorandum (on a specific issue) or a brief (summarizing all of the facts and legal arguments) • Submit with the evidence in advance of the hearing • Cite to relevant case law in your circuit as well as BIA • Cite outside sources including international law, law review articles, and reports to push the law in a new direction

How Do You Establish a Well Founded Fear? • If your client has suffered past persecution, there is a rebuttable presumption that he has a WFF of FP • The presumption is rebutted only if DHS can show a fundamental change in country conditions or change in personal circumstance OR • Internal relocation is reasonable • If your client has not suffered past persecution, he must demonstrate a subjective fear that is objectively reasonable to establish a WFF • Subjective fear established through credible testimony • Objective fear established through client’s past experiences as well as country conditions • Must show that your client will be targeted individually OR • There is a pattern or practice of the persecutor to target everyone in the group – expert generally needed

How Do You Establish a Particular Social Group? • Three Requirements • (1) Immutable or fundamental characteristic Matter of Acosta, 19 I.&N. Dec. 211 (BIA 1985) • (2) Socially Distinct: perceived as a recognizable group by society or the persecutor Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Gomez v. INS, 947F.2d 660 (2d Cir. 1991) • Country specific evidence required • Laws that protect people in the group • Case by case determination • (3) Particularity Matter of S-E-G-, 24 I.&N. Dec. 579 (BIA 2008) • Discrete and definable boundaries, cannot be overly broad, amorphous, diffuse, or objective

How Do you Establish A Political Opinion? • Actual or imputed political opinion of the client. Ruqiang Yu v. Holder, 693 F.2d 294 (2d Cir. 2012); INS v. Elias-Zacarias, 502 U.S. 478 (1992) • Mixed motives are allowed • IJs must avoid an “impoverished view” of what constitutes a political opinion. Rodas Castro v. Holder, 579 F3d at 106 (2d Cir 2010) • Must consider the “broader political context” in order to properly evaluate the claim.” Ruqiang Yu v. Holder • Analysis requires a complex factual inquiry into the nature of the applicant’s activities in relation to the political context where they took place: • Whistle-blowing (Rodas Castro) • Opposition to state corruption (Ruqiang Yu) • Union activities (Osorio v. Gonzales)

How to Show Resistance to Gangs is a Political Opinion? • The power of resistance: Did your client, through words or actions, telegraph an opinion that would be antithetical to the Mara’s agenda? Delgado v. Mukasey, 508 F.3d 702 (2d Cir. 2007) • Ex: Refusal to do something, filing a police report or testifying in court, belonging to a community or religious group, relationship to family members who have refused • Examining Political Context: Does the Mara have an overtly or implicitly ideological political agenda? Does the Mara compete with or exercise de facto governing authority in your client’s community? Castro v. Holder, 597 F.3d 93 (2d Cir. 2010) • Ex: Check IDs, fund job works programs, charge rent, rent • Good articles: • Gangs(namely MS-13/M18) being considered political actors – Max Manwaring Declaration • Elizabeth Kennedy reports on El Salvador

Proving Nexus • The challenge is to show that persecutors are motivated by the protected ground rather than just criminal gains or to get retribution for the specific applicant • Direct evidence: Did persecutors say anything about the protected ground? The victim’s gender? The victim’s religion? The victim’s family members or some other characteristic? • Circumstantial evidence: In the absence of direct evidence for why persecutors targeted the applicant, harm to similarly situated persons, distinction between persecutor and victims, and country conditions can provide circumstantial evidence

What types of additional evidence may show nexus? • Applicant’s anti-gang activities: did he encourage friends / classmates to resist recruitment? • Experiences of applicant’s family members: was he targeted because of his family relationships? • Applicant’s statements to gang members: do these evidence political opinion? • For children: Being denied the fundamental right to education

How to Show Government Action? • Direct government action not required • Government unable or unwilling to control proven by prosecution rates, country condition reports, no laws to protect, etc. • Respondent not expected to have sought police protection where country conditions demonstrate that it would have been futile. Matter of S-A-, 22 I&N Dec. 1328, 1335 (BIA 2000) • Good decision on police being unable or unwilling to control the gang in El Salvador. Ambar Margarita Zelaya De Ceron v. Lynch (2d Cir. 2016) (unpublished)

Procedures and Negotiations Prior to the Hearing

Asylum Clock • Asylum applicants are eligible to apply for an Employment Authorization Document 150 days after filing an I-589 • In removal proceedings, there is an “asylum clock” which counts the days since filing (and can be accessed through the EOIR portal or EOIR hotline) • IJs will either start, stop, or run the clock after each Master Calendar hearing • The clock will stop for any delay on respondent’s parts including not accepting the soonest merits hearing date • There are many memos and guidance on the asylum clock and how start, restart, and stop the clock which you should read and be familiar with

Negotiating with ICE • DHS may stipulate to: • Eligibility for asylum • No bars and inadmissibility factors • Elements of the claim (e.g. past persecution, harm, nexus, etc) • Submission of evidence • Country conditions • Experts • DHS may waive cross-examination or limit it • DHS may offer a lesser form of relief such as Withholding of Removal or CAT (and you should always discuss this option in advance with your client)

On the record/Off the record • Pay attention to when you are speaking on the record (and are being recorded) and when you are off the record (not being recorded) • If you are in doubt, you can ask • Off the record discussions are useful for orienting the parties to the issues and identifying and resolving issues • Judge should not use off the record discussion to sideline an important issue or make a decision on an issue • You can ask to go on the record and/or summarize an off the record discussion on the record if need be • You want an issue that you might appeal to be fully discussed on the record

Procedure at Individual Hearing • Most Judges will ask if you have negotiated with ICE • If you submit evidence 15 day or less in advance, good idea to bring two copies to the hearing • Judge may ask you to summarize the case or the legal arguments off-record prior to starting the hearing • You may have an off-the-record discussion of issues and legal arguments to narrow testimony or cross-examination prior to starting testimony • Always prepare your client that any number of administrative issues may arise which cause the hearing to be adjourned

Admission of Evidence • Judge will formally admit evidence into the record at the start of the hearing • Usually, a formality because the standard of evidence is generous but you or DHS can object to admission of certain evidence into the record • Judge can weigh the evidence in terms of reliability • Judge will mark all evidence as exhibits as they are admitted (TAKE NOTES! Refer to the exhibits by number in your opening, closing, direct examination) • Exhibit 1 (NTA), Exhibit 2 (Respondent submission, tabs A-G), Exhibit 3 (I-213), etc

Testimony in Court

Preparing for Testimony • List the facts that need to be established for the case to have in court • Explain to client the role of everyone in court • Remind client to wear professional attire: Sunday best • Control your client: remind him to answer only question that is asked • Body language of client important • Have a colleague cross-examine your client (aka play bad cop)

Direct Examination • Open-ended, non-leading questions that call for a narrative response • Confront bad facts upfront • Take the bad facts piece by piece by asking specific questions • May bring a list of exact questions but remember to be flexible and shift questions based on the answers • Prepare client for objections, interjections, and recesses • Be mindful of interpreter and accuracy

Importance of Testimony: Credibility • Most important part of the case • Can be based on demeanor, candor, inherent implausibility, consistency of statements • IJ’s credibility determination primarily based on client’s affidavit and his testimony as well as other witnesses’ testimony

Cross-Examination • DHS is allowed to cross-examine the client and every witness by relying on evidence in the record and client’s story • Prepare your client for cross-examination • Cross-examination can be based on testimony given to Immigration officers at the consulate, at the border, and at prior interviews • Client should remember to: • Not get defensive • Only answer question asked • Not guess. “I don’t know” is an okay answer

You Can Jump In: Good Objections • Calls for an opinion • Form of the question • Compound question • Confusing • Calls for speculation • Mischaracterizes earlier testimony • Asked and answered or Harassment • Calls for legal conclusion

Redirect If Necessary • Rehabilitation is allowed • Leading questions allowed but cannot be outside the scope of topics asked already • Prepare some reserve some questions depending on if an issue comes out in cross

Closing Statement • May have to request the opportunity to give a closing statement • Always a good idea (gives you the last word) • Summarize the testimony and evidence as it was presented in court • Prepare a simple legal theory of the case with a few pertinent citations to the case law • Can request to submit closing statement in writing if you feel it would be beneficial

The Decision

Judge’s decision • IJ can issue a “short decision” if DHS defers (one page decision order with Asylum or Withholding checked off) • IJ can issue a “long decision” which is a full explanation of the facts and law (and can be oral or written) • Decision can be the day testimony concludes or can be set for another date • DHS may “defer” to the court (meaning that they will not object or appeal if the judge grants the case) • Both parties may reserve appeal but must file the Notice of Appeal within 30 days

Grant of Asylum • Decision is not final for 30 days unless both sides defer to the judge’s decision and waive the right to appeal • “A file” should be sent to USCIS on the 3rd Floor of 26 Federal Plaza for issuance of I-94 and two-year EAD • May have to follow up with ICE Office of Chief Counsel and USCIS through Customer Serviceto ensure this occurs • Client is eligible to file for adjustment of status one year after the asylum decision is final

Appeal • Either party may appeal the decision within 30 days. • 30 day strict deadline; Notice of Appeal (EOIR-26) must be received by BIA within 30 days • Cost of $110 to appeal asylum claim • Brief and arguments for appeal will be due later (a briefing schedule is issued by the BIA once Notice of Appeal has been properly received) • Appeals take 1-2 years for decision; client is eligible for EAD renewals during time appeal is pending

Thank you!

Representing Asylum Seekers in Immigration Court