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Wednesday, March 11, 2015

When the judge becomes a recalcitrant -- how to protect your client

While speaking with several great colleagues on the AILA (American Immigration Lawyers Association) discussion boards, I had a chance to share my experiences working with judges who would not allow testimony in the immigration court context. I was asked how I handled such judges -- specifically regarding asylum matters -- and I thought I would share my answer here:

I have run into this -- even the judge not wanting fact witnesses to testify. Let me explain an example regarding immigration and asylum law. In each instance, though, you need to find the underlying law that supports the right of your client to be heard. When that is lacking -- do not fear! Press on with an equity argument and use the same language. The key is putting your concern on the record, as you will see below.

State for the record that your expert's testimony is critical to the foundation and credibility of your case. Further, state that the judge is obligated to hear all facts that bear on the risk of abuse or harm.

“Unlike asylum, withholding of removal is not discretionary. The Attorney General is not permitted to deport an alien to a country where his life or freedom would be threatened on account of one of the protected grounds . . . .” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); INA 241(b)(3)(A).

If the judge refuses to hear from the expert (or fact witness), object on the record. Then continue. I have won more than one appeal on this objection. Note, though, you MUST note the purpose of the expert (or fact witness) and then object when the judge does not permit it. Also note that if the judge only allows a cursory examination of the fact witness or expert, then that can also qualify for grounds for appeal if you object on the record.

Examples of how to note your objection on the record:

you must introduce the witness or expert and explain what testimony he/she will provide and why it is critical to your case. If the judge does not give you a chance to do this, state, "Your Honor, may I be heard on this matter?" If the judge still refuses, then you must state: "You Honor, for the record, I must state that your refusal to permit XXX to testify prevents you from having a full and complete picture of Mr. XXXX withholding and asylum petition. I object to this."

If the judge allows you to proffer what the witness or expert will testify (that means make a statement on the record indicating what facts will be discussed), and then refuses to permit the testimony, you must state: "You Honor, I understand your ruling on this matter. However, for the record, I must object as I believe it is not possible to have a full and complete hearing on Mr. XXX withholding and asylum petition without this information."
That's it! You've preserved the record for appeal, and stand a good chance of reversing the holding.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

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