Unlocking the Power of Experts

• Publication year: 2023

Unlocking the Power of Experts

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How They Can Make or Break Your Asylum Case

Narmada Sapkota ^*

Abstract: Asylum, statutory withholding of removal, and protection under the Convention Against Torture (CAT) cases pose complex challenges for noncitizens seeking protection in the United States. The outcomes of these cases can have life-or-death consequences for individuals fleeing persecution or torture in their home countries, making expert evidence crucial in conveying their unique stories and experiences. Expert testimony plays a vital role in helping fact finders understand intricate issues and arrive at accurate conclusions, particularly when noncitizens lack supporting evidence for their claims. Experts can prevent flawed conclusions and enhance the fact finder's understanding of the case by offering specialized knowledge. Different types of experts can corroborate various claims and evidentiary requirements by presenting the details of the case clearly and thoroughly. However, the acceptance and weight given to expert evidence ultimately rest with the immigration judge. Unfortunately, some immigration judges exhibit bias or unjustifiably reject expert evidence, in violation of noncitizens' due process rights. This article highlights the importance of expert evidence in asylum cases, its benefits, and practical considerations for its use. While experts are not mandatory in immigration cases, they can significantly benefit asylum, withholding of removal, and CAT claims by providing specialized knowledge to evaluate the case, establishing the requisite nexus between the claims and statutory grounds, and verifying credibility. Additionally, experts can help counter adverse demeanor findings by illustrating the impact of the noncitizen's background on their demeanor. While acceptance of expert evidence ultimately lies with the immigration judge, introducing it can greatly enhance the noncitizen's chances of success in their asylum case.

Introduction

Asylum, statutory withholding of removal, and/or protection under the Convention Against Torture (CAT) cases are often complex legal proceedings involving noncitizens who flee their home countries due to past persecution or a significant fear of future persecution and/or torture. Seeking asylum, withholding of removal, and CAT protection can be complicated and challenging, especially for those unfamiliar with the legal system of the United States. The stakes can be high, as the noncitizen's life and safety may be at risk if forced to return to their home country. Therefore, the applications of

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noncitizens seeking asylum, withholding of removal, and CAT protection must be prepared with considerable care.

Introducing expert evidence into the record as part of the initial written application and moving to file expert evidence into the record later in proceedings are important tools in seeking asylum, withholding of removal, and/or CAT protection for clients. An expert is qualified by knowledge, skill, experience, training, and/or education to offer specialized wisdom that has the power to help the trier of fact understand all the record evidence and make accurate fact-findings and draw valid legal conclusions. ¹ Documents created by experts and testimony given by experts are evidence, but only the immigration judge (IJ) has the authority to make factual findings ² and determinations regarding the probative value or weight to give all evidence, including expert evidence. ³ Even when an IJ finds an expert credible, the IJ is not compelled to accept all of an expert's testimony and opinions. ⁴ The IJ weighs the evidence in accordance with the role of the fact finder.

Nonetheless, IJs are required to assess the relevance and reliability of all evidence presented in a case, including expert evidence, ⁵ as failure to consider relevant evidences in the record can be grounds for a remand. ⁶ In Ojo v. Garland, the IJ's failure to analyze an unrebutted expert declaration that Olukayode David Ojo would face torture if returned to Nigeria on account of his status as a criminal deportee when evaluating his application for relief under CAT warranted remand. The court directed the agency to give full consideration to the applicant's evidence and explain the reasoning for its decision, despite the government's contention that the IJ should have been presumed to have considered the declaration because the IJ had relied on the report as a reason for adjourning the case until after the applicant's criminal appeal was resolved. ⁷

In conjunction with this requirement is the IJs authority to, inter alia, outright refuse to consider expert evidence. Unfortunately, there are instances where IJs decline to consider expert evidence for biased or unjustified reasons. Some IJs have even denied that expert evidence is permitted at all in immigration proceedings. ⁸

Expert Evidence Can Play a Crucial Role in Telling the Unique Stories of Those Seeking Relief or Protection from Removal from the United States

Noncitizens can use experts for various purposes, such as providing essential evidence for different eligibility requirements, documenting injuries or trauma sustained, establishing applicant and witness credibility, and establishing the political situation in their country. Because experts possess specialized knowledge, skill, experience, training, and/or education, they, in contrast to laypersons, are permitted to draw inferences and conclusions from facts and offer opinions. ⁹ They are often uniquely qualified to guide the trier of fact through complicated concepts and obscure terms. ¹⁰ For instance, if a

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homosexual applicant was married to an opposite-sex partner and applied for asylum based on sexual orientation, an expert may testify about the societal expectation of marriage in the applicant's home country and the circumstances in which the applicant might have married the opposite sex. Similarly, if a noncitizen is seeking immigration protection based on torture, a physician may confirm that the scars or symptoms are consistent with torture. As trauma varies among individuals, experts are in a position to explain gaps in the noncitizen's testimony by presenting evidence that the gaps may have resulted from posttraumatic stress disorder (PTSD) or another psychological condition related to their trauma. These gaps and inconsistencies could be specific to individual noncitizens based on their coping mechanisms. IJs have relied on experts to assist them in determining the facts of a case for a long time. An advocate who introduces expert evidence into the record provides the IJ with additional tools to analyze case-specific evidence and facts unique to a noncitizen, thereby potentially avoiding a meritless adverse credibility determination or other errors adverse to the applicant. ¹¹

The Fifth Amendment Protects a Noncitizen's Right to Seek to Introduce Expert Evidence

In the United States, the Fifth Amendment right to due process extends to all individuals, including noncitizens, ensuring they are not deprived of life, liberty, or property without fair legal procedures. ¹² As such, federal courts have recognized the right of noncitizens to move to present expert evidence in immigration proceedings as a part of their due process rights. Excluding relevant expert evidence can prejudice noncitizens' cases and violate their fair hearing rights. ¹³ Although the Federal Rules of Evidence do not have a binding effect in immigration proceedings, expert evidence can be admitted in immigration court if the evidence is probative and fair. The Federal Rules can, moreover, be used as a helpful guide, as evidence that would be admissible under these rules is more likely to be deemed in compliance with due process. ¹⁴

To demonstrate a due process violation, the noncitizen must show that the exclusion of expert evidence resulted in a fundamentally unfair proceeding that could have affected the outcome. ¹⁵ The court of appeals reviews due process challenges de novo and considers the potential adverse effect of the excluded evidence on the ultimate outcome. ¹⁶ The following two cases from the Eighth and Ninth Circuits demonstrate the federal courts' disapproval of IJs handling of expert evidence when it affected the outcome of the cases.

The Eighth Circuit in Tun v. Gonzales held that an IJ unfairly excluded critical expert evidence that could have supported the noncitizen's claims of fear of future torture, past persecution, and fear of future persecution. ¹⁷ Referencing the right to due process, the court held that excluding the expert evidence prejudiced the noncitizen, as these reports could have affected the outcome of the case. ¹⁸

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During the immigration hearing, the IJ excluded crucial expert evidence presented by two expert witnesses: Professor David Steinberg, who was presented as the country-condition expert on Burma, and Dr. Sharon Frye, who had prepared a report on the petitioner's medical and psychological condition. The government objected to using Steinberg's report on conditions in Burma. ¹⁹ The government acknowledged Steinberg's qualifications and credibility, which included his significant publication on Burma and East Asia, teaching numerous classes on the subject, and previous recognition as an expert by immigration court in St. Louis. The IJ nonetheless decided not to give any weight to expert evidence provided by Steinberg because of his unavailability for cross-examination, given that the evidence was in the form of a report. ²⁰ This report would have corroborated and added specificity to other evidence in the record, addressing surveillance practices of the Burmese military regime. ²¹ The report would have also added support to the claim of impossibility to obtain documents and letters from Burma due to the inherent danger of sending such materials. ²²

The noncitizen also sought to enter Dr. Frye's report on the petitioner's PTSD...