A Reasonable Opportunity to Cross-Examine

It is not uncommon in removal proceedings for the government to offer a sworn statement into evidence to contradict a part of the respondent’s claim.  I have seen ICE offer statements from forensics examiners, from overseas consular investigators, and in cases in which the respondent obtained or sought to obtain immigration status through marriage, statements from the petitioning spouse claiming that the marriage was in fact a sham.  A damaging statement offered by the government will often lead to the denial of an application for relief.

In Patel v. Sessions, No. 16-3619 (8th Cir. Aug. 22, 2017), the petitioner had obtained conditional resident status through her marriage to a U.S. citizen.  Because she had divorced within two years, the petitioner sought to have the condition on her status removed by showing that her marriage was entered into in good faith.  Both the petitioner and her mother offered testimony before the immigration judge that seemed sufficient to meet this burden.  However, the government first offered at the hearing a statement from the ex-husband that he had been paid by the petitioner to enter into a knowingly sham marriage.  The immigration judge denied the petitioner’s request to subpoena the ex-husband and allow her to cross-examine him.  The immigration judge entered the statement into evidence over the objection of the petitioner and denied the petition.

Section 240(b)(4) of the Immigration & Nationality Act provides respondents in removal proceedings the reasonable opportunity to cross-examine government witnesses.  However, on appeal, the BIA found that such right did not apply because, in the Board’s view, the ex-husband was not a witness.  Accordingly, the BIA affirmed the immigration judge’s decision.

The U.S. Court of Appeals for the Eighth Circuit disagreed, citing decades-old case law to underscore the Board’s error.  The circuit court sent the strong reminder that whether testimony is offered orally or in writing, its declarant is still a witness.  The court cited language from other circuits which very logically concluded that to allow the government to undermine a respondent’s right to cross-examination by presenting written rather than oral testimony would “frustrate” the reasonable opportunity to cross-examine government witnesses provided to respondents under the statute.  As the ex-husband’s statement (and a DHS report based on his adverse statements) was the only evidence contradicting the petitioner’s claim that the marriage was bona fide, and as the immigration judge admitted and relied on the statement without providing the petitioner the reasonable opportunity to cross-examine its author as required by statute, the court found prejudice in the Board’s error.  The Board’s decision was therefore vacated, and the record remanded.

This is not new territory; the Eighth Circuit cited decisions of the Seventh and Ninth Circuits going as far back as 1983.  Nevertheless, attorneys should go into court with this decision in their back pockets as a needed reminder of respondents’ rights where the government seeks to offer damaging statements into evidence.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.



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