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Thursday, August 11, 2016

Evidence and opening statements in Immigration Court

A colleague asked me about the rules of court, regarding evidence in immigration proceedings. I thought I would share the answer here:

I have a CAT only IH coming up. I want to introduce a news article that I feel is relevant. Can I refer to the article in my opening statement?

Sure you can! You need to submit the article, and any other evidence you want to use, 15 days in advance -- unless for good cause you can’t do that. At the beginning of the hearing, the judge will review the evidence, and admit/deny as appropriate (almost always admit in CAT – it becomes a question of weight, not admissibility). In a state or federal court, the opening statement is limited to facts. However, if you had a pre-trial exchange of exhibits, you could certainly cite to a “fact” in your exhibits, too. You would do that (and in immigration court, too!) by saying something like this: “Not only will my client testify that giant green elephants are the cause of his fear, the evidence will show that as of 31 February 2016 (date of the article), the citizens of Ubuland are afraid of the government, and believe that they will all be killed by the green elephants with the governments agreement or even assistance.”. In state or federal court, you need to lay a foundation and provide authentication for evidence, before it can be admitted. Usually, you can file a motion in limine regarding certain documents, such as newspaper articles, in order to have the Court recognize the authenticity and foundation of new print prior to trial. That is not required in immigration court.

In an immigration context, you can even bring in hearsay in the opening, closing, and throughout the trial.

Do you have an immigration question? Give us a call! 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, August 4, 2016

Criminal Past? How to handle it when sponsoring someone for immigration benefits.

What happens when you have a criminal past, but want to bring your family into the United States? That of course, depends on the crime. Conviction of a crime against minors is a particularly serious form of criminal past that present a serious bar to immigration in the US. I recently answered a question about this on one of our legal boards:
I have an AWA case. The Director denied it, of course, after we responded to an NOID (notice of intent to deny). The denial stated that the only option was an appeal to BIA. Help! Is that right? So happens that the only grounds/reason that they gave for denial is now moot and we have conclusive proof to rebut those grounds that was obtained after filing/deadline. I would like to submit a motion to reopen and reconsider. Can I do that?

In my experience Adam Walsh immigration cases are only every appealable to the BIA, and then only win when the alleged crimes do not constitutes crimes against minors. I have never seen the BIA reverse based on equities or the fact the petitioner is no threat to the intending immigrants. As you also pointed out – after acquired evidence is not reviewed by BIA if it was not submitted timely.

In this case, I would not pay the filing fees for an appeal, given the likelihood of failure. I would re-file with the new information and get approved ab initio. There is nothing barring a new application. Will also most likely be faster.

No harm in an appeal – you can always re-file thereafter. Just not likely to be successful (in my experience).

No, as to your question for a motion to re-open…I don’t believe such a thing exists for Adam Walsh act cases. There is only an appeal to BIA on whether the law was properly applied, as the decision of the Director on the matter of facts/equities is final.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com