The Importance of Expert Witnesses

There are apparently two school of thought concerning the use of expert witnesses in asylum cases.  A highly respected and experienced attorney I work with believes that the failure to use an expert witness constitutes malpractice, a view I agree with.  However, I have recently heard from attorneys choosing to forego the use of experts to save their clients additional expense.  I will briefly discuss below why I believe experts are important in claims for asylum.

Asylum claims will generally involve two types of experts.  First, the testimony of  a physician or a mental health professional may be offered to support claims of past persecution.  It is obviously recommended that the medical professional’s assessment falls within his or her area of specialization (for example, as an IJ, I once received a diagnosis of PTSD made by a dermatologist).  It is also helpful if the examining physician has some type of training or experience with torture victims; some are affiliated with respected programs (in New York, examples include the Bellevue/NYU Program for Survivors of Torture and Physicians for Human Rights).

A medical expert is important for a number of reasons.  The REAL ID Act, which has been in effect since 2005, provides immigration judges with greater leeway to find that an asylum seeker lacks credibility.  The BIA may only reverse an adverse credibility finding by an immigration judge that is “clearly erroneous,” which does not allow the Board to reverse a credibility finding because it would have weighed the evidence differently or would have reached a different result if it had been the factfinder.  Under the applicable standard, if there are two permissible ways of viewing the evidence, the Board cannot reverse the immigration judge’s choice, even if the Board would absolutely have chosen the other option.  The Board can therefore only reverse if it is left with the definite and firm conviction that a mistake has been made, which essentially means that no reasonable factfinder could have reached the conclusion of the IJ.

It must be kept in mind that asylum seekers are testifying as to very painful, traumatic events.  They are also often required to recall very specific details years after the events occurred.  They are doing this under the highly stressful conditions of a court hearing, where they might be questioned aggressively on cross-examination by a government attorney seeking their deportation.  Suffice it to say that things don’t always go as expected.  Therefore, a medical expert’s testimony might necessarily buttress an asylum applicant’s claim to have suffered past persecution in a manner sufficient to overcome any shortcomings in the applicant’s own testimony.  Furthermore, a psychological expert might provide a medical explanation for problems with the applicant’s factual recall or demeanor, both of which are factors that can be relied on by an immigration judge to support an adverse credibility finding.

Additionally, under the REAL ID Act, an immigration judge may deny an asylum claim even where the applicant testified credibly if the judge determines that corroborative evidence should have been provided.  The affidavit and/or testimony of a medical expert constitutes evidence that corroborates the claimed harm, and thus lessens the chances of a judge ruling that the applicant did not meet his or her burden of proof.

An asylum applicant may also offer a country expert to testify as to conditions in the applicant’s country of nationality that would provide objective support for the applicant’s subjective fear of persecution.  This has become increasingly necessary in recent years for the following reasons.  First, the U.S. Department of State no longer issues country profiles, which were specifically prepared for use in asylum claims, and would be offered into evidence in all asylum claims heard by the immigration courts.  The judges are thus left to rely on the State Department’s Country Reports on Human Rights Practices, which are issued once a year (and therefore might be out of date within months).  The Country Reports are not prepared specifically for use in asylum claims.  They may be brief, and address a country’s major issues in generalized terms, while failing to address lesser or more localized issues at all.  For many claims, a country expert is therefore needed to fill in the details missing from the State Department reports.

When I was in private practice in the early 1990s, I was retained to file a motion to reopen with an INS Asylum Office on behalf of a graduate student from China who had written a published letter critical of the Chinese government.  In his denial, the asylum officer relied on the State Department Country Report, which stated that the Chinese government wanted to encourage students to return from their studies abroad, and generally didn’t punish those who wrote letters in the foreign press.  In support of the motion, I offered the affidavit of an expert at Human Rights Watch, stating that while the State Department report was generally correct, this case was distinguishable in two critical aspects that would cause her to be at risk if returned to China.  The asylum officer actually called me up to say he would grant the motion and the application for asylum, and added that he was glad to have the expert opinion and wished that other lawyers would provide them.

As an immigration judge, I can think of many cases in which a country expert’s testimony resulted in a grant of asylum   One involved a family claiming to fear persecution based on their Armenian nationality in a far-flung former Soviet republic.  Neither the State Department nor any of the country reports from the major human rights organizations made mention of Armenians.  At my suggestion, the attorney presented an excellent young country expert (who in the years since, has achieved some prominence as a political commentator and author) who explained that the country’s Armenian population was so small, and the problems faced by larger groups so great, that the persecution suffered by Armenians didn’t register prominently enough to be included in the concise annual reports.  The expert’s persuasive testimony painted a very severe picture of the treatment of Armenians, and was responsible for the ensuing grant of asylum.

Country experts may also provide context necessary to establish nexus.  For example, a number of circuit court decisions have found a motive of political opinion in mistreatment that was categorized by immigration judges and the BIA as acts of corruption or personal vendetta untethered to a protected ground.1

In cases claiming a nexus to a particular social group, experts can be of particular importance in establishing that the proposed group is socially distinct in the society in question, without which the group cannot be found cognizable under BIA precedent.   It can be particularly difficult to establish that “society” in the country of nationality perceives the proposed PSG to be a distinct group.  While on occasion, there might be a statute or media article referencing the group, in most cases, an expert will provide the best chance of establishing social distinction.

 Finally, a country expert can help establish that an asylum applicant would face “other serious harm” if returned to his or her country of nationality warranting a grant of humanitarian asylum in cases involving past persecution but a material change in country conditions negating a future fear of persecution.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

Notes:

1.  Some examples include Mustafa v. Holder, 707 F.3d 743 (7th Cir. 2013);  Antonyan v. Holder,  642 F.3d 1250 (9th Cir. 2011); Baghdasaryan v. Holder,  592 F.3d 1018 (9th Cir. 2010); Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005).

A Reasonable Opportunity to Cross-Examine

Juan Osuna