Immigration Law Advisor

U.S. Department of Justice

Executive Oﬃce for Immigration Review

May 2010 A Monthly Legal Publication of the Executive Oﬃce for Immigration Review Vol 4. No. 5

http://eoirweb/library/lib_index.htm

Published since 2007

In this issue...

Page 1: Feature Article:

Expert Witnesses in Immigration

Proceedings

Page 4: Federal Court Activity

Page 7: BIA Precedent Decisions

Page 8: Regulatory Update

The Immigration Law Advisor is

a professional monthly newsletter of

the Executive Office for Immigration

Review (“EOIR”) that is intended

solely as an educational resource

to disseminate information on

developments in immigration law

pertinent to the Immigration Courts

and the Board of Immigration Appeals.

Any views expressed are those of the

authors and do not represent the

positions of EOIR, the Department of

Justice, the Attorney General, or the

U.S. Government. This publication

contains no legal advice and may

not be construed to create or limit

any rights enforceable by law. EOIR

will not answer questions concerning

the publication’s content or how it

may pertain to any individual case.

Guidance concerning proceedings

before EOIR may be found in the

Immigration Court Practice Manual

and/or the Board of Immigration

Appeals Practice Manual.

Expert Witnesses in Immigration Proceedings

by Garry Malphrus

Introduction

mmigration Judges have increasingly complex and demanding jobs,

and a good example of this trend can be seen in the expanding

use of expert witnesses in Immigration Court. Expert evidence,

which includes both documentary and testimonial evidence, can be very

signiﬁcant and potentially determinative in whether a party meets his or her

burden of proof. However, issues may arise regarding this evidence, posing

challenges that the Immigration Judge must resolve. is article examines

case law from the Board of Immigration Appeals and the Federal circuit

courts of appeals addressing the use of expert evidence in immigration

proceedings, including questions of admissibility and weight. In general, it

can be diﬃcult to discern broadly applicable rules from cases, particularly

across circuits, because the issues regarding expert witnesses can be very fact

speciﬁc. is article also discusses the Federal Rules of Evidence regarding

expert evidence as a possible guide to assist in navigating this terrain.

Expert evidence that is relevant and reliable can be very helpful to

Immigration Judges in reaching the proper outcome of a case. “Immigration

Judges, like other trial judges generally, are often required to determine

factual disputes regarding matters on which they possess little or no

knowledge or substantive expertise, and, in making such determinations,

they typically rely on evidence, including expert testimony, presented by

the parties.” Matter of Marcal Neto, 25 I&N Dec. 169, 176 (BIA 2010).

Expert witnesses are persons “with scientiﬁc, technical, or other specialized

knowledge” who can “assist the trier of fact to understand the evidence or

to determine a fact in issue.” Fed. R. Evid. 702. Because of their specialized

knowledge, “[e]xpert witnesses are often uniquely qualiﬁed in guiding the

trier of fact through a complicated morass of obscure terms and concepts,”

and they can provide conclusions and inferences drawn from facts that lay

persons are not qualiﬁed to make. United States v. Duncan, 42 F.3d 97,

101 (2d Cir. 1994). For these reasons, “their testimony can be extremely

valuable and probative.” Id.

e Opportunity To Present Probative Evidence

Expert evidence is a form of evidence, and thus

the proper starting point is to discuss basic rules regarding

evidence in Immigration Court. In immigration

proceedings, the “‘sole test for admission of evidence is

whether the evidence is probative and its admission is

fundamentally fair.’” Nyama v. Ashcroft, 357 F.3d 812,

816 (8th Cir. 2004) (quoting Espinoza v. INS, 45 F.3d

308, 310 (9th Cir. 1995); see also, e.g., Kholyavskiy v.

Mukasey, 540 F.3d 555, 565 (7th Cir. 2008); Matter of

Grijalva, 19 I&N Dec. 713, 721-22 (BIA 1988). It is

well settled that the Federal Rules of Evidence are not

binding in immigration proceedings and that evidentiary

considerations are more relaxed in Immigration Court

than in Federal court. See, e.g., Matter of De Vera, 16 I&N

Dec. 266, 268-69 (BIA 1977); Navarrette-Navarrette v.

Landon, 223 F.2d 234, 237 (9th Cir. 1955) (stating that

“administrative tribunals may receive evidence which a

court would regard as legally insuﬃcient”).

Moreover, an alien has the statutory and

due process right under the Fifth Amendment to a

full and fair hearing and a reasonable opportunity

to present evidence on his or her own behalf.

Section 240(b)(4)(B) of the Immigration and Nationality

Act; 8 U.S.C. § 1229(b)(4)(B); Hassan v. Gonzales, 403

F.3d 429, 435 (6th Cir. 2005); Kaur v. Ashcroft, 388

F.3d 734, 736-37 (9th Cir. 2004); Capric v. Ashcroft, 355

F.3d 1075, 1087 (7th Cir. 2004). Expert evidence can

be highly persuasive to help satisfy a party’s burdens of

proof and persuasion. See generally Matter of V-K-, 24

I&N Dec. 500, 502 n.2 (BIA 2008).

Immigration Judges have broad discretion in

conducting hearings, and a “due process violation occurs

only when the ‘proceeding was so fundamentally unfair

that the alien was prevented from reasonably presenting

his case.’” Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009)

(quoting Hassan, 403 F.3d at 436); Ladha v. INS, 215

F.3d 889, 904 (9th Cir. 2000). To prevail in a due process

challenge to the exclusion of evidence, an alien must

show both that he was denied a reasonable opportunity

to be heard on his evidence and that there was resulting

prejudice (that is, the outcome of the proceedings may

well have been diﬀerent had the expert testimony been

considered). See, e.g., Diop v. Holder, 586 F.3d 587 (8th

Cir. 2009); Rusu v. U.S. INS, 296 F.3d 316 (4th Cir.

2002); Espinoza, 45 F.3d at 311. As explained by the

Seventh Circuit in Kholyavskiy v. Mukasey, 540 F.3d 555,

the key consideration is whether an Immigration Judge’s

evidentiary ruling prevents an alien from presenting

probative evidence on his own behalf. For example, in

Kyolyavaskiy, the court, in ﬁnding no error where the

Immigration Judge failed to consider the witness as an

expert because of the witness’s lack of an academic or

research background on the topic, discussed the limited

probative value and reliability of the testimony. Id. at

565-66. By contrast, in Tun v. Gonzales, 485 F.3d 1014,

1025-26 (8th Cir. 2007), the Eighth Circuit found a due

process violation when the Immigration Judge excluded

an aﬃdavit from a highly relevant and even critical expert

witness when the aﬃdavit was facially unobjectionable.

Guidance from Federal Rules

While the Federal Rules of Evidence clearly are

not binding in immigration proceedings, the Board and

the circuit courts have found that the Federal Rules may

provide useful guidance in determining the admissibility

of evidence. See, e.g., Niam v. Ashcroft, 354 F.3d 652,

658-60 (7th Cir. 2004) (holding that, while administrative

agencies are not bound by the conventional rules of

evidence, the Federal Rules can provide helpful guidance

on whether the admission or exclusion of expert testimony

is fundamentally fair). e Federal Rules of Evidence

codiﬁed common law rules regarding “the reliability and

probative worth” of certain types of evidence. Felzcerek v.

INS, 75 F.3d 112, 116 (2d Cir. 1996). e fact that speciﬁc

evidence would be admissible under the Federal Rules

“lends strong support to the conclusion that admission

of the evidence [in immigration proceedings] comports

with due process.” Id.; see also Matter of DeVera, 16 I&N

Dec. at 270-71. For example, in Nyama, 357 F.3d at

816, the Eighth Circuit noted that the “traditional rules

of evidence do not apply to immigration proceedings”

but also cited to Federal Rule of Civil Procedure

26(a)(1)(B) as being persuasive in upholding the

Immigration Judge’s decision to permit the Government

to question an applicant with documents that were not

admitted in advance of the hearing because they were

being used to impeach the applicant’s credibility. In a case

regarding expert evidence, the Ninth Circuit in Malkandi

v. Holder, 576 F.3d 906, 916 (9th Cir. 2009), noted that

the strict rules of evidence are not binding in Immigration

Court. However, the court found that the introduction

of the 9/11 Commission Report into evidence without

also admitting underlying supportive documentation was

fundamentally fair by stating that the report was “akin to

an expert report” and that under Federal Rule of Evidence

continued on page 8

702 the facts underlying the opinion do not need to be

admissible for the expert opinion to be admissible. Id. at

916. us, similarly, this article discusses Federal Rules

that relate to experts, not as binding authority, but as

useful guidance. e Federal Rules can provide a helpful

framework from which to approach issues that may

arise when determining whether to admit speciﬁc expert

evidence, and if admitted, what probative value or weight

to give that evidence.

Federal Rule of Evidence 702 provides the

standards for admission of expert evidence as follows:

Testimony By Experts. If scientiﬁc,

technical, or other specialized knowledge

will assist the trier of fact to understand

the evidence or to determine a fact in

issue, a witness qualiﬁed as an expert by

knowledge, skill, experience, training,

or education, may testify thereto in the

form of an opinion or otherwise, if (1) the

testimony is based upon suﬃcient facts or

data, (2) the testimony is the product of

reliable principles and methods, and (3)

the witness has applied the principles and

methods reliably to the facts of the case.

Under Rule 702, an expert may testify to an “opinion

or otherwise.” “An expert is permitted to base his

opinion on hearsay evidence and need not have personal

knowledge of the facts underlying his opinion.” Aguilar-

Ramos v. Holder, 594 F.3d 701, 706 n.7 (9th Cir. 2010).

An opinion may include reasonable inferences that the

expert draws from the available facts and data. See Fed.

R. Evid. 703. e facts or data need not be admissible in

evidence, and an expert may assume the truth of the facts

or data in order to render an opinion. See Fed. R. Evid.

703, 705.

Experts presented by either party may testify

about a wide variety of factual questions, such as whether

an applicant’s scars are consistent with the persecution

he claims to have suﬀered, or whether a document

in question has been fabricated. However, witnesses

generally may not opine on questions of law. See Matter

of Cruzado, 14 I&N Dec. 513, 515 (BIA 1973) (holding

that the opinions of a professor and others as to the proper

construction of a State statute is not admissible). Courts

have repeatedly stated that while expert testimony can

be helpful in resolving factual disputes, such testimony

cannot be used to “usurp” a judge’s role of interpreting the

law, applying the law to the facts, weighing the evidence,

and making credibility determinations. See, e.g., United

States v. Farrell, 563 F.3d 364, 377 (8th Cir. 2009); United

States v. Stewart, 433 F.3d 273, 311 (2d Cir. 2006).

An exception to the rule that experts may not

opine on questions of law exists for opinions involving

foreign law and procedures. See Matter of Rowe, 23 I&N

Dec. 962 (BIA 2006). For example, the Board has relied

on expert evidence in determining matters such as the

validity of marriages, divorces, and adoptions concluded

under foreign law. See Matter of Kodwo, 24 I&N Dec. 479

(BIA 2008); Matter of Khatoon, 19 I&N Dec. 153 (BIA

1984); Matter of Yue, 12 I&N Dec. 747 (BIA 1968).

Relevance, Qualiﬁcations, and Reliability

ere are three basic requirements for admission or

exclusion of expert evidence under Federal Rule of Evidence

702: relevance of the expert testimony, qualiﬁcation of the

expert witness, and reliability of the expert opinion. If the

evidence is admitted, concerns regarding these issues may

relate to the weight that the testimony receives, which is

further discussed later.

Relevance of Expert Testimony. According to Rule

702, expert testimony is relevant and proper if it will “assist

the trier of fact to understand the evidence or to determine

a fact in issue.” is standard of relevance is considered

a “liberal one.” Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 587 (1993). It is similar to the general

relevance standard of Rule 401, which simply provides that

“relevant evidence” means evidence having “any tendency

to make the existence of any fact that is of consequence

. . . more probable or less probable.”

e regulations

provide that Immigration Judges may consider “any oral

or written statement that is material and relevant to any

issue in the case.” 8 C.F.R. § 1240.7(a).

Qualiﬁcation of the Expert Witness. An expert

witness is broadly deﬁned as anyone who is “qualiﬁed

as an expert by knowledge, skill, experience, training, or

education.” Fed. R. Evid. 702. e expert must have

greater knowledge than a lay person on the particular

subject matter and must possess the necessary expertise in

his or her ﬁeld. See United States v. Finley, 301 F.3d 1000,

1007 (9th Cir. 2002). However, Rule 702 “contemplates

FEDERAL COURT ACTIVITY

CIRCUIT COURT DECISIONS FOR APRIL 2010

by John Guendelsberger

he United States courts of appeals issued 309

decisions in April 2010 in cases appealed from the

Board. e courts aﬃrmed the Board in 261 cases

and reversed or remanded in 48, for an overall reversal rate

of 15.5% compared to last month’s 10.8%. e Ninth

Circuit issued over half of the month’s decisions and nearly

two-thirds of total reversals. ere were no reversals from

the First, Fourth, Sixth, Tenth, and Eleventh Circuits.

e chart below shows the results from each

circuit for April 2010 based on electronic database

reports of published and unpublished decisions.

Circuit Total Aﬃrmed Reversed % reversed

First 4 4 0 0.0

Second 56 49 7 12.5

ird 43 38 5 11.6

Fourth 6 6 0 0.0

Fifth 16 13 3 18.8

Sixth 1 1 0 0.0

Seventh 4 3 1 25.0

Eighth 4 3 1 25.0

Ninth 155 124 31 20.0

Tenth 3 3 0 0.0

Eleventh 17 17 0 0.0

All circuits: 309 261 48 15.5

e 309 decisions included 152 direct appeals

from denials of asylum, withholding, or protection under

the Convention Against Torture; 77 direct appeals from

denials of other forms of relief from removal or from

ﬁndings of removal; and 80 appeals from denials of

motions to reopen or reconsider. Reversals within each

group were as follows:

Total Aﬃrmed Reversed %

Asylum 152 128 24 15.8

Other Relief 77 67 10 13.0

Motions 80 66 14 17.5

e 24 reversals in asylum cases involved the

following issues: 9 addressed the adverse credibility

determination; 2 involved nexus; and 2 concerned

the level of harm for past persecution. Other issues

included the 1-year ﬁling bar for asylum eligibility,

ﬁrm resettlement, and application of the REAL ID Act

corroboration requirement. Four reversals addressed

Convention Against Torture denials, two of which held

that the Board had applied the wrong standard of review

in overturning the Immigration Judge’s fact-ﬁnding

underlying the grant of relief. Of the other two cases,

one concerned governmental acquiescence and the other

involved a remand for additional analysis.

e 10 cases in the “other relief” category included

6 addressing various criminal grounds of removal. Two

of these concerned Federal First Oﬀender Act coverage

for “under the inﬂuence” oﬀenses in the Ninth Circuit.

Two others addressed aspects of applying the categorical

and modiﬁed categorical approach to aggravated felony

grounds. Other issues included a continuance request,

10 years of physical presence for cancellation of removal,

a section 237(a)(1)(H) waiver, and naturalization.

e 14 reversals involving motions included

7 cases from the Ninth Circuit addressing ineﬀective

assistance of counsel. In these cases, the court found error

with respect to equitable tolling, due diligence, and the

standard applied for determining prejudice. ere were

four reversals of motions to reopen based on changed

country conditions, two each from the Second and ird

Circuits. Other motions involved jurisdiction to consider

an in absentia motion, a section 212(c) waiver, and a

motion to reconsider a denial of reopening for adjustment

of status based on labor certiﬁcation.

e chart on the next page shows the combined

numbers for the ﬁrst 4 months of 2010, arranged by

circuit from highest to lowest rate of reversal.

John Guendelsberger is a Member of the Board of Immigration

Appeals.

Total Aﬃrmed Reversed %

Asylum 763 683 80 10.5

Other Relief 287 257 30 10.5

Motions 385 347 38 9.9

e numbers by type of case on appeal for the ﬁrst

4 months of 2010 combined are indicated below.

RECENT COURT OPINIONS

Circuit Total Aﬃrmed Reversed % reversed

Ninth 648 558 90 13.9

Seventh 15 13 2 13.3

Eighth 24 21 3 12.5

Second 361 332 29 8.0

Tenth 13 12 1 7.7

ird 147 137 10 6.8

Fifth 44 41 3 6.8

Sixth 30 28 2 6.7

Eleventh 94 88 6 6.4

Fourth 51 49 2 3.9

First 8 8 0 0.0

All circuits: 1435 1287 148 10.3

Sixth Circuit:

Hassan v. Holder, __F.3d__, 2010 WL 1850371 (6th Cir.

May 11, 2010): e Sixth Circuit granted the petition for

review of a married couple from an Immigration Judge’s

order of removal. e main issue concerned the timing

of the couple’s marriage. e husband was admitted to

the U.S. as the unmarried son of a U.S. citizen, but at the

time of his naturalization petition, questions arose as to

whether he was, in fact, married prior to such admission,

resulting in a DHS investigation. An Immigration

Judge subsequently ordered the couple removed on the

grounds that they were inadmissible at time of entry

because they were already married. e Immigration

Judge further found the husband removable for falsely

representing himself to be a U.S. citizen on a Small

Business Administration (“SBA”) loan application. e

Board aﬃrmed and further rejected the aliens’ due process

challenge of improper conduct by the Immigration

Judge.

On appeal, the court found no violation of due process

based on the following: (1) although the Immigration

Judge had previously served as DHS Chief Counsel, there

was no indication that she was involved in the aliens’ case

while serving in such capacity; (2) the allegation that

the Immigration Judge had a close working relationship

with the Government witness while working for DHS

was unsupported; and (3) the Immigration Judge’s active

questioning of witnesses was well within an Immigration

Judge’s broad discretion. However, the court reversed

the ﬁnding regarding the aliens’ earlier marriage, holding

that the DHS failed to satisfy its burden of proof where

its key evidence, Embassy letters, lacked any real degree

of detail. e court also reversed the ﬁnding of false

representation of citizenship by the husband because the

Government failed to oﬀer any evidence of the statutorily

required “purpose or beneﬁt” of the misrepresentation,

noting that the husband had previously received multiple

similar SBA loans as a lawful permanent resident without

claiming citizenship on the applications. e case was

thus remanded to the Board to terminate proceedings.

Seventh Circuit:

Kucana v. Holder, __F.3d__, 2010 WL 1755014 (7th Cir.

May 4, 2010): On remand from the Supreme Court, the

Seventh Circuit considered whether the Board abused its

discretion when, in denying the alien’s 2006 motion to

reopen based on a claim of changed country conditions

in Albania, the Board ignored the alien’s aﬃdavit from

a country expert. e court had previously ruled that

it lacked jurisdiction to consider abuse of discretion

arguments; the Supreme Court reversed, distinguishing

the present case because discretion was delegated to the

Board by regulation rather than by statute. On remand,

the circuit court found no abuse of discretion, noting that

the expert aﬃdavit, which provided a history of Albania’s

political problems, did not support the only issue relevant

to the present motion, namely, whether country conditions

had materially worsened between 2002 (when the alien’s

ﬁrst motion to reopen was denied by the Board), and

2006 (when the motion at issue was ﬁled).

Eighth Circuit:

Litvinov v. Holder, __F.3d__, 2010 WL 1994683 (8th Cir.

May 20, 2010): e Eighth Circuit denied the petition

for review of a husband and wife from an Immigration

Judge’s denial of their application for asylum from

Belarus. Applying the pre-REAL ID Act standard, the

Immigration Judge found most of their testimony credible

but concluded that the couple had failed to meet their

burden of establishing either past persecution or a well-

founded fear of future persecution. e court dismissed

the aliens’ claim that the Immigration Judge applied too

high a legal standard by requiring them to show that

certain events would occur upon their return to Belarus.

Noting that this argument was based on one statement

in the Immigration Judge’s decision, the court found that

when the decision was read in its entirety, it was clear that

the proper legal standard was applied. e court further

determined that the aliens failed to provide suﬃcient

evidence to support their claim of changed conditions in

Belarus or to corroborate their claims of harm purportedly

suﬀered by family members. e court thus concluded

that the aliens’ evidence only compelled a ﬁnding of

mistreatment falling short of persecution. e court

further upheld the Immigration Judge’s partial adverse

credibility determination, ﬁnding that the discrepancies

and omissions cited by the Immigration Judge for that

determination were actually present and that the aliens’

explanation for them were unpersuasive.

Ninth Circuit:

Cesares-Castellon v. Holder, __F.3d__, 2010 WL 1759452

(9th Cir. May 4, 2010): e Ninth Circuit granted the

petition for review of an applicant for a waiver under

former section 212(c) of the Act whose application was

deemed abandoned by the Immigration Judge. Although

the alien had timely ﬁled his actual waiver application,

he subsequently failed to ﬁle supporting documentation

within the time allotted by the Immigration Judge.

Citing regulation 8 C.F.R. § 1003.31(c), the Immigration

Judge deemed the section 212(c) application abandoned

and thus reached no determination on the merits of the

application. e Board upheld the decision. e court

found the Immigration Judge’s interpretation of the

regulation to be erroneous. It held that the regulation

only entitled the Immigration Judge to deem the right

to ﬁle the supporting documentation waived but not to

deem his entire timely ﬁled application abandoned. e

matter was therefore remanded for consideration of the

application on the merits.

Partap v. Holder, __F.3d__, 2010 WL 1838905 (9th

Cir. May 10, 2010): e court upheld the decision of

an Immigration Judge (aﬃrmed by the Board) denying

the alien’s application for cancellation of removal for

certain nonpermanent residents under section 240A(b)

of the Act and the Board’s denial of the alien’s motion

to remand. e court rejected the alien’s argument that

the Immigration Judge should have considered his U.S.

citizen daughter, who was not yet born at the time of his

hearing before the Immigration Judge, as a qualifying

relative who would have rendered him statutorily eligible

for relief. e court held that for purposes of this relief,

a “child” must meet the statutory deﬁnition found in

section 101(b) of the Act, noting that the child is required

to be a U.S. citizen, a status that requires either birth in

the U.S. or naturalization. e court further upheld

the Board’s denial of the motion to remand where the

motion was not accompanied by any evidence showing

“exceptional and extremely unusual hardship.”

Federiso v. Holder, __F.3d__, 2010 WL 1980763 (9th Cir.

May 19, 2010): e court granted the petition for review

of a long-term lawful permanent resident who was deemed

ineligible to apply for a waiver under section 237(a)(1)(H)

of the Act by the Board. e alien obtained his lawful

permanent resident status as the unmarried son of his U.S.

citizen mother but was placed into removal proceedings

years later when he was determined to have been married

prior to his admission to the U.S. In proceedings before

the Immigration Judge, the alien sought a fraud waiver as

the son of a U.S. citizen; the DHS challenged his eligibility

subsequent to the death of the alien’s mother during the

pendency of the proceedings. While the Immigration

Judge held that the alien continued to qualify as the son of

a U.S. citizen and granted the waiver, the Board reversed,

holding that section 237(a)(1)(H) required a relationship

to a living relative. e court disagreed, ﬁnding the

statutory language to be “plain and unambiguous.”

Noting that it is undisputed that the alien is the son of a

U.S. citizen, the court concluded that neither the Board

nor itself “may further our preferred interpretation of

Congress’s intent by misreading or adding to the statutory

eligibility requirements that Congress has laid out quite

clearly.”

Uppal v. Holder, __F.3d__, 2010 WL 2011538 (9th Cir.

May 21, 2010): e court withdrew its prior decision

in Uppal v. Holder, 576 F.3d 1014 (9th Cir. 2009), in

which it held that a conviction for aggravated assault

under section 268(2) of the Canada Criminal Code was

categorically a crime involving moral turpitude (“CIMT”),

and it issued a superseding opinion reaching the opposite

conclusion. e court observed that Canadian case law

“leaves no doubt” that the statute requires no actual harm.

e court determined that the Board “most likely” erred

in its interpretation of the Canadian statute’s elements.

Because the court found that the Board’s unpublished

decision lacked thorough reasoning and was inconsistent

with prior circuit and Board precedent, it declined to

give deference to the Board. It analyzed the mens rea

BIA PRECEDENT DECISIONS

requirement of section 268(2) and concluded that it

did not require that “the perpetrator speciﬁcally intend

to inﬂict serious physical injury, or any injury at all,” or

even to “recklessly disregard the risk of bodily harm or

endangerment.” e court stated that in comparing such

mens rea requirement with that discussed in the case law

deﬁning assaults that constitute CIMTs, “it becomes clear

that a § 268 conviction cannot categorically be a CIMT.”

e case was therefore remanded for application of the

modiﬁed categorical approach.

n Matter of Alania, 25 I&N Dec. 231 (BIA 2010),

the Board found that unauthorized employment

is not a bar to adjustment of status for aliens who

are otherwise eligible to adjust under section 245(i) of

the Immigration and Nationality Act, 8 U.S.C. § 1255(i).

e respondent overstayed the period of authorized

presence permitted in his nonimmigrant visa and

subsequently worked without authorization. His I-140

petition was approved with an April 30, 2001, priority

date. e respondent ﬁled an adjustment of status

application, but the Immigration Judge found that he

was ineligible because of his unauthorized employment.

e Department of Homeland Security argued that

the respondent was barred from adjusting by section

245(c) of the Act, which prohibits adjustment under

section 245(a) if the alien has engaged in unauthorized

employment, in conjunction with section 245(k), which

provides for a limited exception in the employment

visa context. e Board observed that section 245(i)

operates as a total waiver of any section 245(c) bar for the

limited pool of aliens who have a qualifying priority date,

whereas section 245(k) merely creates a limited exception

to the application of section 245(c). e regulations

provide support for this interpretation. 8 C.F.R.

§ 1245.1(b)(4). e Board sustained the respondent’s

appeal and remanded the record to the Immigration

Judge.

In Matter of B-Y-, 25 I&N Dec. 236 (BIA

2010), pursuant to a remand from the United States

Court of Appeals for the Second Circuit, the Board

further explained the standards to be applied in making

a frivolousness determination on an asylum claim. e

Immigration Judge had denied the respondent’s asylum

and withholding applications based on an adverse

credibility determination and found that the respondent

had submitted a frivolous asylum claim, a decision

the Board aﬃrmed. e Second Circuit upheld the

adverse credibility determination and the denial of the

persecution claim, but it remanded the case for further

analysis of the frivolousness determination, requesting

that the Board address a number of issues. e ﬁrst issue

was whether an Immigration Judge may incorporate by

reference factual ﬁndings made in support of an adverse

credibility ﬁnding. e Board found that an Immigration

Judge may incorporate fact-ﬁnding regarding credibility

with a frivolousness ﬁnding where the two overlap, but

cautioned that the analyses do not always overlap and

that a frivolousness determination requires extra, explicit

ﬁndings as to “materiality” and “deliberate fabrication.”

See Matter of Y-L-, 24 I&N Dec. 151, 156 (BIA 2007).

As to the court’s request to clarify whether

an Immigration Judge must separately consider any

explanations for inconsistencies and discrepancies, the

Board found that while some incorporation by reference

from the adverse credibility ﬁnding and analysis is

permissible, the Immigration Judge should separately

address the respondent’s explanations. is is because

the burden of proof in a frivolousness determination rests

with the Government and not the alien, and the alien’s

explanations may have a bearing on the materiality and

deliberate fabrication requirements. Lastly, the Board

found that an Immigration Judge does not need to provide

additional warnings that a frivolousness determination is

being considered. In an adverse credibility determination,

where inconsistencies are obvious to the respondent

during the course of the hearing, the Immigration Judge

need not provide a separate opportunity to explain the

inconsistencies; the same holds true for frivolousness

warnings. In this case, the Board found that the

Immigration Judge gave the appropriate warnings but

did not suﬃciently identify the factors relied upon and

did not make speciﬁc ﬁndings regarding materiality and

deliberate fabrication.

In Matter of Monges, 25 I&N Dec. 246

(BIA 2010), the Board discussed the interplay of the

90-day time limitation for ﬁling a motion to reopen in

8 C.F.R. § 1003.23(b)(1) and the 5-year limitation

on discretionary relief when an alien fails to appear

at deportation proceedings under former section

242B(e)(1) of the Act, 8 U.S.C. § 1252b(e)(1) (1994).

In this case, the Board had dismissed the respondent’s

appeal from the denial of a 2003 motion to reopen her

October 1994 in absentia deportation order to permit

her to apply for adjustment of status. e Ninth Circuit

remanded the case to the Board to discuss whether there

was a conﬂict between the motion rule and former section

242B(e)(1). e Board found that the motion regulations

were promulgated pursuant to a directive by Congress

in conjunction with its enactment of the enforcement

provisions of section 242B, intending that the time and

number limitations on motions would further the statute’s

purpose of bringing ﬁnality to immigration proceedings,

ending unwarranted delays, and ensuring that aliens no

longer beneﬁt from remaining in the country following a

ﬁnal order of deportation. e Board found that the two

provisions have separate restrictions for diﬀerent purposes

and are not at odds with one another. Further, to permit

the 5-year bar to operate as an exception to the motions

regulation would be inconsistent with the congressional

intent to prevent aliens from obtaining beneﬁts as a

result of the mere accrual of time after the entry of a ﬁnal

administrative order. e Board again dismissed the

respondent’s appeal.

REGULATORY UPDATE

75 Fed. Reg. 24734

DEPARTMENT OF HOMELAND SECURITY

Extension of the Designation of Honduras for

Temporary Protected Status

SUMMARY: is Notice announces that the Secretary

of Homeland Security (Secretary) has extended the

designation of Honduras for temporary protected status

(TPS) for 18 months from its current expiration date of

July 5, 2010, through January 5, 2012. is Notice also

sets forth procedures necessary for nationals of Honduras

(or aliens having no nationality who last habitually resided

in Honduras) with TPS to reregister and to apply for an

extension of their employment authorization documents

(EADs) with U.S. Citizenship and Immigration Services

(USCIS). Re-registration is limited to persons who

previously registered for TPS under the designation of

Honduras and whose applications have been granted

or remain pending. Certain nationals of Honduras (or

aliens having no nationality who last habitually resided

in Honduras) who have not previously applied for TPS

may be eligible to apply under the late initial registration

provisions.

DATES: e extension of the TPS designation of Honduras

is eective July 6, 2010, and will remain in eect through

January 5, 2012. e 60-day reregistration period begins

May 5, 2010, and will remain in eect until July 6, 2010.

75 Fed. Reg. 24737

DEPARTMENT OF HOMELAND SECURITY

Extension of the Designation of Nicaragua for

Temporary Protected Status

SUMMARY: is Notice announces that the Secretary

of Homeland Security (Secretary) has extended the

designation of Nicaragua for temporary protected status

(TPS) for 18 months from its current expiration date of

July 5, 2010, through January 5, 2012. is Notice also sets

forth procedures necessary for nationals of Nicaragua (or

aliens having no nationality who last habitually resided

in Nicaragua) with TPS to reregister and to apply for an

extension of their employment authorization documents

(EADs) with U.S. Citizenship and Immigration Services

(USCIS). Re-registration is limited to persons who

previously registered for TPS under the designation of

Nicaragua and whose applications have been granted

or remain pending. Certain nationals of Nicaragua (or

aliens having no nationality who last habitually resided

in Nicaragua) who have not previously applied for TPS

may be eligible to apply under the late initial registration

provisions.

DATES: e extension of the TPS designation of Honduras

is eective July 6, 2010, and will remain in eect through

January 5, 2012. e 60-day reregistration period begins

May 5, 2010, and will remain in eect until July 6, 2010.

Expert Witnesses continued

a broad conception of expert qualiﬁcations” and thus, even

in Federal court, what constitutes adequate qualiﬁcations

to testify as an expert should be broadly deﬁned. omas

v. Newton Int’l Enterprises, 42 F.3d 1266, 1269 (9th Cir.

1994).

Under Chapter 3.3(g) (Witness Lists) of the

Immigration Court Practice Manual, an expert witness’

curriculum vitae or resume should be made part of the

record of proceedings. An expert’s credentials can be

ascertained from this document and through voir dire of

the expert during the hearing. In most cases, reviewing

courts have deferred to the agency’s determination whether

a proposed expert possesses the necessary expertise to

testify. See, e.g., Castro-Pu v. Mukasey, 540 F.3d 864, 867,

869 (8th Cir. 2008) (aﬃrming the decision to exclude an

expert witness on country conditions, where the expert

did not have academic credentials and had last visited

the country 6 years earlier); Pasha v. Gonzales, 433 F.3d

530, 532, 535 (7th Cir. 2005) (ﬁnding the Government’s

witness unqualiﬁed to testify regarding the authenticity

of an Albanian document when he did not have access

to comparable documents or knowledge of the type of

equipment the Albanian Government would have used at

the time); Dailide v. U.S. Att’y Gen., 387 F.3d 1335, 1343

(11th Cir. 2004) (ﬁnding the witness properly deemed

unqualiﬁed to testify when he had no relevant published

works or course work during the pertinent period of

European history and was the brother of the alien’s

attorney). However, as noted previously, some decisions

have reversed the exclusion of an expert’s testimony on

due process grounds, particularly where the testimony

was found probative and critical to the alien’s case.

See Tun, 485 F.3d at 1027 (ﬁnding that the exclusion of a

physician’s testimony was erroneous, where the physician

“was clearly qualiﬁed and oﬀered critical corroborating

testimony based on a recent medical examination of the

Petitioner”); Koval v. Gonzales, 418 F.3d 798 (7th Cir.

2005) (ﬁnding it erroneous to exclude a former KGB

agent’s testimony in an asylum case).

Although the qualiﬁcations of a witness to testify

as an expert are rarely challenged in Immigration Court,

there are situations as noted above where the expert may

properly be excluded as not being qualiﬁed to testify.

general, the standard for qualifying a witness as an expert

is a generous one. If an Immigration Judge permits

an expert witness to testify but has concerns about the

witness’ reliability, the judge may accord less weight to

the testimony. Factors such as publication experience,

education and work experience in the relevant ﬁeld, and

potential bias may inform the judge’s view of the weight

to give the expert’s testimony. See Tun, 485 F.3d at 1027

(stating that participation in an advocacy organization is

not an adequate basis to exclude testimony but may aﬀect

the weight of the evidence); Akinfolarian v. Gonzales, 423

F.3d 39, 43 (1st Cir. 2005) (holding that indications that

an expert’s aﬃdavit was unreliable, which were permissibly

used to exclude the evidence, could also have been used

to lessen the weight the evidence was given); United States

v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005) (noting

that the trial court properly considered an expert witness’

testimony but gave it substantially less weight based on

lack of expertise); Matter of M-, 5 I&N Dec. 484 (BIA

1953) (holding that the fact that an expert has appeared in

many cases and has been paid a fee is a valid consideration

in evaluating the evidence but does not conclusively show

bias).

Reliability of the Expert Testimony. Generally,

the most signiﬁcant issues that arise regarding an expert

relate to the reliability of the testimony. As noted above,

an expert’s testimony is deemed reliable under Federal

Rule of Evidence 702 if “(1) the testimony is based upon

suﬃcient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of

the case.”

In Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 587 (1993), the seminal case regarding

expert witness testimony in Federal court, the Supreme

Court held that it is for the trial judge to determine whether

a potential expert’s testimony is reliable and relevant and

therefore admissible. Id. at 597. e Court further

explained that in determining whether an expert’s opinion

is reliable, the trial judge must examine the reasoning or

methodology underlying the expert’s opinion, not the

ultimate conclusion the expert reached. e trial judge

must determine whether the reasoning or methodology is

valid and whether it was applied reliably to the facts of the

case. Id. at 592-93. e Court announced a ﬂexible four-

part test for determining the validity of expert evidence.

e Daubert test, which was developed with

scientiﬁc evidence in mind (speciﬁcally whether the drug

Bendectin was the cause of the plaintiﬀs’ birth defects),

consists of four questions that trial judges may ask in

performing their gate-keeping function to ensure that the

evidence is valid and reliable. e questions are: (1) Has

the methodology been tested or is it testable? (2) Has the

methodology been subjected to peer-review publication?

(3) Is there a known or knowable error rate for the

methodology? (4) Is the methodology generally accepted

in the relevant ﬁeld? Daubert, 509 U.S. at 592-94. In

a subsequent case, the Supreme Court clariﬁed that all

expert knowledge, both scientiﬁc and nonscientiﬁc, is

subject to the Daubert reliability analysis. See Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 151-54 (1999)

(holding that the Daubert principles applied in a products

liability case where an engineer’s opinion of why a tire blew

out was based on a visual and tactile inspection involving

skill- and experienced-based observation, rather than the

application of scientiﬁc principles ). In Kumho Tire, the

Court emphasized that outside of the scientiﬁc context,

the test is generally more ﬂexible in nature. Not all four

Daubert factors will apply to every expert in every case; only

those factors that are relevant to the particular discipline

may be applied. Id. at 151-53. e Court concluded that

“the trial judge must have considerable leeway in deciding

in a particular case how to go about determining whether

particular expert testimony is reliable.” Id. at 152.

e speciﬁc Daubert methodology analysis

regarding the admissibility of scientiﬁc and technical

expert evidence at a jury trial has limited practical

applicability in immigration proceedings, in part because

the underlying methodology that the expert uses to reach

his or her conclusions is rarely a disputed issue in an

immigration case. Cf. omas v. Newton Int’l Enterprises,

42 F.3d at 1270 n.3 (holding that, under Daubert, although

scientiﬁc conclusions “must be linked in some fashion to

the scientiﬁc method, . . . non-scientiﬁc testimony need

only be linked to some body of specialized knowledge or

skills”).

ere is limited case law speciﬁcally addressing

whether Daubert applies with respect to immigration

proceedings. e Board has not discussed Daubert in

the context of experts in immigration proceedings. e

only circuit court to have done so, the Seventh Circuit,

has stated that “the spirit of Daubert . . . does apply to

administrative proceedings” and that “‘[j]unk science’

has no more place in administrative proceedings than in

judicial ones.” Niam, 354 F.3d at 660. at court has

invoked Daubert both in ruling that expert testimony

should have been permitted and in ﬁnding an expert

witness unreliable. See id. (reversing the determination to

exclude certain expert evidence); see also Pasha, 433 F.3d

at 535 (citing to Niam in ﬁnding the testimony of the

Government’s document expert to be unreliable.)

e fact that aliens have a statutory and due process

right to an opportunity to present probative evidence

may counsel, in many cases, against a strict approach to

the admissibility of evidence. ere are situations where

evidence is not reliable and is of no beneﬁt to the trier of

fact, and it is properly excluded. However, there may be

some concerns regarding the extent of the reliability of

evidence, and in those cases, it may be advisable to admit

the evidence and permit the issues that may otherwise

aﬀect its admissibility to, instead, aﬀect the weight that

it receives in Immigration Court. See Akinfolarian, 423

F.3d at 43 (holding that indications that an expert’s

aﬃdavit was unreliable, which were permissibly used to

exclude the evidence, could also have been used to lessen

the weight the evidence was given); see also, e.g., Morales

v. American Honda Motor Co., Inc., 151 F.3d 500, 516

(6th Cir. 1998) (holding that an expert’s testimony was

properly admitted and questions about the extent of his

qualiﬁcations and expertise were properly considered by

the trier of fact as going to the weight and credibility of the

testimony, particularly given that the opponent was able

to cross-examine the expert and expose the weaknesses in

his qualiﬁcations and expertise).

With respect to applying the Daubert principles in

Immigration Court, it is relevant that Daubert is premised

on the “gatekeeping” function to prevent the jury from

being unduly inﬂuenced by unreliable expert evidence. See

Kumho Tire, 526 U.S. at 149-50. However, immigration

proceedings are, of course, bench trials where the judge is

also the trier of fact, so keeping less reliable or trustworthy

evidence completely out may be less important. In other

words, “ere is less need for the gatekeeper to keep the

gate when the gatekeeper is keeping the gate only for

himself.” Brown, 415 F.3d at 1269. e judge is in the

position to admit testimony but give it less weight based

on issues related to its reliability. Id. at 1270.

us, in immigration proceedings, the “spirit

of Daubert” may best be viewed as a focus on the

reliability of the evidence. Knowing the underlying

basis for the expert’s opinion and the sources relied

upon to reach it can be important to understanding its

value. An opinion is only as reliable as the assumptions

it is based upon. For example, a professor testifying on

country conditions can be expected to rely on sources

typically relied upon by other academics in the ﬁeld.

See Fed. R. Evid. 703 (sources relied upon should be “of a type

reasonably relied upon by experts in the particular ﬁeld”);

cf. 8 C.F.R. § 1208.12(a) (stating that asylum oﬃcers may

consider the U.S. Department of State materials and other

“credible sources” in forming their opinions, and that such

sources can include “international organizations, private

voluntary agencies, news organizations, or academic

institutions”). On the other hand, opinion testimony

based on internet sources that have not been shown to be

authentic and reliable may itself not be reliable. Cf. Badasa

v. Mukasey, 540 F.3d 909, 910 (8th Cir. 2008) (holding

that an article from the online encyclopedia Wikipedia

is not a reliable source for evidence in immigration

proceedings).

Even if the sources relied upon are trustworthy

and reliable, there also needs to be “a link between

the facts or data the expert has worked with and the

conclusion the expert’s testimony is intended to support.”

United States v. Mamah, 332 F.3d 475, 478 (7th Cir.

2003). “When the factual underpinning of an expert’s

opinion is weak, it is a matter aﬀecting the weight and

credibility of the testimony . . . .” Int’l Adhesive Coating

Co., Inc. v. Bolton Emerson Int’l, Inc., 851 F.2d 540, 545 (1st

Cir. 1988). While testimony based on pure speculation

is inadmissible, arguments about the speculative nature of

testimony or whether certain assumptions are unfounded

properly go the weight of the testimony, Boucher v. U.S.

Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996), and

these issues may be addressed in cross-examination.

Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005).

us, for example, in Barreto-Claro v. U.S. Att’y Gen., 275

F.3d 1334, 1340 (11th Cir. 2001), an expert witnesses’

testimony that the asylum applicant would face “serious

trouble when he returns” was reasonably found inadequate

to establish eligibility for relief, where the applicant had

not suﬀered past persecution in his home country but

had only lost his employment, and there was no other

evidence in the record to support the expert’s theory. Also,

in Hysi v. Gonzales, 411 F.3d 847, 853 (7th Cir. 2005),

the Seventh Circuit stated that the Immigration Judge

properly gave minimal weight to expert’s testimony, in

part because it relied on the applicant’s false representation

that he authored news articles and that he was known

as the author of news articles in Albania to bolster his

asylum claim.

A related issue regarding the reliability of

testimony, including expert testimony, may be the hearsay

nature of it. Hearsay is clearly admissible in immigration

proceedings if it is reliable. See, e.g., Kim v. Holder, 560

F.3d 833, 836 (8th Cir. 2009); Matter of Grijalva, 19 I&N

Dec. 713. However, hearsay evidence may be accorded

less weight. Gu v. Gonzales, 454 F.3d 1014, 1021 (9th

Cir. 2006) (ﬁnding an out-of-court hearsay statement of

applicant’s friend less persuasive than a ﬁrst-hand account);

Kiareldeen v. Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001)

(stating that the hearsay nature of evidence aﬀects the

weight it is accorded); Matter of Kwan, 14 I&N Dec.

175 (same); see also Silva v. Gonzales, 463 F.3d 68, 72-73

(1st Cir. 2006) (holding that testimony based on “triple

hearsay” may be found not to be probative or reliable).

us, in Kholyavskiy, 540 F.3d at 566, the Seventh Circuit

explained that a proposed expert’s aﬃdavit that was based

on second- and third-hand information on the treatment

of the mentally ill in Russia, instead of academic studies or

research, was of minimal reliability and probative value.

Form of Expert Evidence

Expert evidence in immigration proceedings may

be in the form of live testimony, telephonic testimony,

or aﬃdavits, unlike under the Federal rules, which

generally require that the testimony be presented at trial

or deposition. See Djedovic v. Gonzales, 441 F.3d 547,

551 (7th Cir. 2006) (citing approvingly to Richardson v.

Perales, 402 U.S. 389 (1971), where the Court held that,

in administrative adjudications, agencies can accept expert

evidence in writing as well as through oral testimony);

see also Hamid v. Gonzales, 417 F.3d 642, 645-46 (7th Cir.

2005) (holding that telephonic testimony is an acceptable

alternative to live testimony because observable factors

like demeanor are less important for expert testimony

than other testimony).

Live and Telephonic Expert Testimony

ere are procedural requirements that a party

must follow in Immigration Court to submit live or

telephonic testimony. ese requirements include

complying with the time limits to ﬁle a witness list and

providing the expert witness’ curriculum vitae or resume.

See Chapters 3.3(g) (Witness lists), 4.16(b) (Filings)

of the Immigration Court Practice Manual. Also, for

telephonic testimony, the requesting party must explain in

a written motion (or an oral motion at a master calendar

hearing) why the witness cannot appear in person, and

the party must provide the witness’ telephone number

and the location from which he will testify. See Chapter

4.15(o)(iii) of the Immigration Court Practice Manual.

Whether to permit telephonic testimony is

within the discretion of the Immigration Judge. See id.;

see also Akinwande v. Ashcroft, 380 F.3d 517, 522 (1st

Cir. 2004) (upholding the telephonic testimony of a

Government witness, as the alien’s right to cross-examine

the witness was not infringed upon). Federal courts view

a decision to exclude testimony for failure to comply with

procedural requirements under an abuse of discretion

standard. See Diop, 586 F.3d at 592 (ﬁnding no error

in the Immigration Judge’s discretionary determination

to exclude the testimony of a therapist witness who was

not on the pretrial witness list, when the opposing party

had no opportunity to review anything in writing from

the witness in advance of the hearing); Djedovic, 441

F.3d at 550-51 (ﬁnding no error to exclude telephonic

testimony from an expert witness when the request was

not included on the pretrial witness list but instead was

made 2 days prior to the hearing); Singh v. Ashcroft, 398

F.3d 396, 407 (6th Cir. 2005) (ﬁnding no error to exclude

expert testimony when applicant’s attorney failed to seek

permission in advance of the hearing). e question is

whether the respondent had a “reasonable opportunity” to

have the evidence considered. See Sankoh v. Mukasey, 539

F.3d 456, 465-66 (7th Cir. 2008) (ﬁnding no error for the

Immigration Judge to deny a motion to reopen to submit

additional evidence after the hearing was complete, as the

alien was aﬀorded the opportunity to submit the evidence

during proceedings).

e question whether to continue a hearing

to permit a late-identiﬁed witness to testify is also

a discretionary determination. See Gebresadik v.

Gonzales, 491 F.3d 846, 851 n.5 (8th Cir. 2007);

Djedovic, 441 F.3d at 550-51; see also Matter of Sibrun,

18 I&N Dec. 354, 356 (BIA 1983) (holding that, to

obtain a continuance, the “alien at least must make a

reasonable showing that the lack of preparation occurred

despite a good faith eﬀort to be ready to proceed and

that any additional evidence he seeks to present is

probative, noncumulative, and signiﬁcantly favorable”);

8 C.F.R. § 1240.6 (stating that an Immigration Judge

may grant a continuance “for good cause shown”).

Expert Aﬃdavits

As noted previously, it may be a due process

violation to entirely exclude probative expert evidence if

the alien complies with procedural requirements and can

show prejudice. See Tun, 485 F.3d at 1028-29 (ﬁnding

error in the exclusion of a facially unobjectionable

aﬃdavit from a critical witness, where the aﬃdavit was

excluded solely because the expert was not available for

cross-examination); Niam, 354 F.3d at 658-60 (ﬁnding

that the exclusion of both an expert’s live testimony

and her aﬃdavit was prejudicial because it would have

provided facts contrary to the State Department reports);

see also Biggs v. INS, 55 F.3d 1398, 1402 (9th Cir. 1995)

(ﬁnding it erroneous to ignore a letter from an alien’s

doctor regarding her medical condition and also exclude

the doctor from testifying by telephone). In that regard,

as a general rule, it is much more diﬃcult to show

prejudice from the exclusion of expert testimony if the

expert’s written aﬃdavit is admitted and considered. See

Diop, 586 F.3d at 592 (holding that, even assuming the

Immigration Judge erred in excluding the expert from

testifying, the applicant failed to show that the expert could

have provided relevant information beyond her aﬃdavit,

which the judge admitted into evidence); Jarbough v. Att’y

Gen. of U.S., 483 F.3d 184, 192 (3d Cir. 2007) (ﬁnding

no error in the denial of a continuance for an expert to

testify live, because the respondent did not show that the

testimony would be materially diﬀerent from the expert’s

written submission); Hamid, 417 F.3d at 645-46 (ﬁnding

no error in the exclusion of live testimony because the

expert’s written statement was considered); Akinwande,

380 F.3d at 522 (ﬁnding no error in permitting the expert

witness to testify by telephone and not requiring in-court

testimony). However, there may be circumstances where

it would be error for an Immigration Judge not to hear

and consider testimony from an expert even if written

materials are admitted. See Lopez-Umanzor v. Gonzales,

405 F.3d 1049, 1057-59 (9th Cir. 2005) (ﬁnding it

erroneous to exclude live testimony even when written

materials were submitted, in part because the proferred

testimony was not covered in the written materials).

e admissible nature of hearsay testimony (both

expert and otherwise) does not negate the rule that both

parties are entitled to a “reasonable opportunity” to cross-

examine witnesses in Immigration Court, consistent

with the adversarial nature of the proceedings. See

8 C.F.R. §§ 1240.2(a), 1240.10(a)(4). However, there

are “practical limitations on this right.” Matter of DeVera,

16 I&N Dec. at 269. In particular, while the primary

purpose of cross-examination is to ensure the reliability

and credibility of witness testimony, these interests can

also be met with respect to an out-of-court statement if

the statement falls within an express exception to the rule

against hearsay. Id. at 270-71 (“[A]n aﬃdavit made by an

unavailable declarant which is of suﬃcient reliability that

it would be admissible in a Federal judicial proceeding as a

declaration against penal interest is entitled to full weight

in an administrative deportation proceeding.”); see also

Duad v. United States, 556 F.3d 592, 596 (7th Cir. 2009)

(ﬁnding that hearsay documents are admissible if they

are reliable and noting that any contrary rule would be

very harmful to asylum seekers); Ruckbi v. INS, 285 F.3d

120, 124 n.7 (1st Cir. 2002) (holding that the author of a

forensics report is not required to be available to testify for

the report to be admissible); Espinoza, 45 F.3d at 310-11

(holding that a Form I-213 (Record of Deportable Alien)

was admissible even though its authors were not available

for cross-examination).

us, while the aﬃdavit of an expert is generally

admissible without the expert being made available to

testify, the statement may be given less weight because

the author is not produced for cross-examination. See

Chen v. Gonzales, 434 F.3d 212, 218 (3d Cir. 2005)

(ﬁnding an aﬃdavit less probative, in part because it

was based on hearsay and the aﬃant was not subject

to cross-examination); De Brown v. Dep’t of Justice, 18

F.3d 774, 778 (9th Cir. 1994) (discounting a witness’

aﬃdavit, in part because the witness was not available

for cross-examination and no showing was made that

the witness was unavailable). e opposing party or the

Immigration Judge may have questions about “logical or

empirical shortcomings in the expert’s analysis” that are

not answered by the written document. See Djedovic,

441 F.3d at 551. If the judge has such concerns and they

aﬀect the weight of the aﬃdavit, the judge should explain

them in his or her decision.

Similarly, another relevant issue is whether an

aﬃdavit is conclusory in nature. Expert evidence that

oﬀers nothing more than a legal conclusion is excludable

in Federal court. See Woods v. Lecureux, 110 F.3d 1215,

1220 (6th Cir. 1997). In the Federal court context, an

aﬃdavit that is highly conclusory in the opinion it oﬀers

and does not contain facts and rationale for the opinion

is not persuasive. See, e.g., Mid-State Fertilizer Co. v.

Exch. Nat’l Bank of Chicago, 877 F.2d 1333, 1339-40 (7th

1989).

An additional consideration may be whether the

aﬃdavit is general in nature and not prepared speciﬁcally

for the applicant’s situation. e relevance and weight of

an expert aﬃdavit may be limited if it is “not prepared

speciﬁcally for the petitioner and is not particularized as

to his circumstances.” See Wang v. BIA, 437 F.3d 270, 274

(2d Cir. 2006). Generally, if the expert is not available

to explain issues that are not fully covered in the written

submission, such as the factual basis for the opinion or

sources used to develop the opinion, or how the opinion

relates to the applicant’s particular circumstances, these

concerns can limit the persuasive value of the aﬃdavit.

Cf. Matter of E-M-, 20 I&N Dec. 77, 81 (BIA 1989)

(“[I]n determining the weight of an aﬃdavit, it should be

examined ﬁrst to determine upon what basis the aﬃant

is making the statement and whether the statement is

internally consistent, plausible, or even credible. Most

important is whether the statement of the aﬃant is

consistent with other evidence of record.”).

Evaluation of Expert Evidence

After evidence is admitted, it is critical for the

Immigration Judge to consider it and address its probative

value as part of the record. See generally Aguilar-Ramos,

594 F.3d at 706 n.7 (noting that the Immigration Judge

stated reasons in the record why the expert testimony

was insuﬃcient to establish eligibility for relief); Dukuly

v. Filip, 553 F.3d 1147, 1149 (8th Cir. 2009) (ﬁnding

that the Immigration Judge properly considered expert

testimony and did not ignore it but, instead, found it

unpersuasive when weighed against other evidence). is

is consistent with the general requirement that evidence

should be considered and evaluated based on the totality

of the record. See, e.g., Zheng v. Mukasey, 552 F.3d

277, 286 (2d Cir. 2009) (stating that the Immigration

Judge is required to give consideration to “an undeniably

probative piece of evidence”); Tan v. U.S. Att’y Gen., 446

F.3d 1369, 1376 (11th Cir. 2006) (“[T]he Immigration

Judge is required to consider all evidence submitted by the

applicant.”). See generally Matter of S-M-J-, 21 I&N Dec.

722, 729 (BIA 1997) (holding that testimony should be

examined and weighed in the context of the totality of

the evidence of record); section 240(c)(4)(C) of the Act

(stating that the Immigration Judge should “[c]onsider[]

the totality of the circumstances, and all relevant factors”

in making a credibility determination). Immigration

Judges should speciﬁcally and fully explain the reasons

why they do or do not ﬁnd expert testimony reliable and

persuasive.

Courts will often remand cases when no reason

was given for why speciﬁc testimony from a undisputed

expert was excluded or was admitted but not considered.

See, e.g., Morgan v. Mukasey, 529 F.3d 1202, 1211 (9th

Cir. 2008) (remanding, in part because the Board did not

adequately consider psychological reports, their contents,

or their bearing on a central issue of the applicant’s

claim); Leia v. Ashcroft, 393 F.3d 427, 434-35 (3d Cir.

2005) (remanding, in part because the Board approved

without explanation the Immigration Judge’s rejection

of the testimony of a witness who the parties agreed

was an expert regarding country conditions); Gailius v.

INS, 147 F.3d 34, 46 (1st Cir. 1998) (holding that the

testimony of an acknowledged expert witness must be

considered against State Department reports); Castaneda-

Hernandez v. INS, 826 F.2d 1526, 1530-31 (6th Cir.

1987) (remanding because the Board failed to directly

address and consider aﬃdavits of experts in reaching

the conclusion that the respondent did not have a well-

founded fear of persecution).

Conclusion

Expert evidence that is relevant and reliable can be

very useful in assisting the trier of fact in understanding

the evidence or determining a fact in issue. e

admissibility of evidence, including expert testimony,

depends on whether the evidence is probative and its

admission would be fundamentally fair. Although not

binding in immigration proceedings, the Federal Rules

can provide useful guidance regarding the admissibility of

evidence and, if admitted, the weight and probative value

the evidence receives. ere may be times when expert

evidence is properly excluded because of a lack of expertise

or because the expert’s opinion is entirely unreliable.

However, in other instances, concerns regarding evidence

that would impact admissibility in Federal court may,

instead, impact the weight and persuasive value of the

evidence in Immigration Court. is is consistent with

the more relaxed approach to the admissibility of evidence

in immigration proceedings and aliens’ statutory and due

process right to have the opportunity to present probative

evidence on their own behalf. After expert evidence is

admitted, it is very important for the Immigration Judge

to consider it and explain whether and to what extent the

evidence is found to be reliable and persuasive.

Garry Malphrus is a Member of the Board of Immigration

Appeals and was previously an Immigration Judge. e

author appreciates the assistance of Immigration Judges

Quynh Bain, Dorothy Harbeck, and Annie S. Garcy in the

preparation of this article.

1. When discussing the Federal rules, this article principally focuses on Rule

702’s admissibility standards for expert evidence. e other Federal Rules of

Evidence speak to opinion testimony by lay witnesses (Rule701), the bases

of opinion testimony by experts (Rule 703), expert opinion on the ultimate

issue in a case (Rule 704), and disclosure of facts or data underlying expert

opinion (Rule 705).

2. e evidence must be “of consequence” to be relevant. For example,

expert testimony about hardship to an applicant for nonpermanent resident

cancellation of removal (as opposed to hardship to a qualifying relative) is

not relevant to the application. See, e.g., Matter of Monreal, 23 I&N Dec.

56, 58 (BIA 2001).

3. If a witness is not qualiﬁed to testify as an expert, he may be permitted

to testify as a lay witness if his knowledge is based on his own experience

and perceptions. See Kholyavskiy, 540 F.3d at 566. However, a lay witness

cannot, for example, render opinions based on specialized knowledge. Fed.

R. Evid. 701.

4. e fact that a witness has testiﬁed in other courts does not alone

conclusively establish that the witness is a qualiﬁed, reliable expert in the

case at hand. See omas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800

(4th Cir. 1989).

5. e Daubert analysis has been applied in other kinds of administrative

agency proceedings. See, e.g., Terran v. Sec’y of Dept. of Health & Human

Servs., 41 Fed. Cl. 330, 336 (1998), aﬀ’d, 195 F.3d 1302, 1316 (Fed. Cir.

1999) (stating that, although the Federal Rules of Evidence do not apply in

cases under the National Childhood Vaccine Injury Act, “Daubert is useful in

providing a framework for evaluating the reliability of scientiﬁc evidence”);

see also Elliott v. Commodity Futures Trading Comm’n, 202 F.3d 926, 933

(7th Cir. 2000) (applying a Daubert analysis in Commodity Futures Trading

Commission proceedings).

6. In Federal court, expert reports are considered inadmissible hearsay, and

the testifying expert must present his opinions by oral testimony under oath

at a deposition or at trial unless the court provides otherwise. See Fed. R.

Civ. P. 26(a)(2)(B). Also, the expert generally must submit a signed written

report that contains a complete statement of the facts and data the expert

relied upon and the expert’s statement of opinions and reasons for them, as

well as the expert’s qualiﬁcations, publications within the past 10 years, other

testimony in the past 4 years, and amount of compensation. Id.; see also

Fed. R. Evid. 703, 704. ese procedural diﬀerences between Federal court

and immigration proceedings is consistent with the more relaxed standard

regarding the admissibility of evidence in Immigration Court compared to

the Federal rules.

Layout: EOIR Law Library

Karen L. Drumond, Librarian

EOIR Law Library and Immigration Research Center

Carolyn A. Elliot, Senior Legal Advisor

Board of Immigration Appeals

Emmett D. Soper, Attorney Advisor

Oﬃce of the Chief Immigration Judge

David L. Neal, Acting Chairman

Board of Immigration Appeals

Brian M. O’Leary, Chief Immigration Judge

Oﬃce of the Chief Immigration Judge

Jack H. Weil, Assistant Chief Immigration Judge

Oﬃce of the Chief Immigration Judge

EOIR Immigration Law Advisor