Evidence in Deportation and Removal Actions

A hearing is conducted. At this hearing, both the alien and the U.S. government, and specifically, the Department of Homeland Security ("DHS"), present evidence to support their cases.

If you're involved in a removal or deportation action, you should know some things about the types of evidence that can and can't be used. Nonetheless, because deportation and removal proceedings are complex in nature, it's a good idea to consult an experienced immigration law attorney for help in the proceedings.

Evidence in General

At the hearing, you'll have to be given the opportunity:

• To examine the evidence that the DHS will use against you, with the exception that the DHS does not have share information that it considers to be confidential or has to do with national security
• To present evidence on your own behalf, such as presenting documents or witnesses that favor your case, and
• To cross-examine witnesses presented by the DHS

The main goal in removal proceedings is that the evidence be reliable, or trustworthy, and that the hearing be fair.

Specific Evidentiary Concerns

Hearsay evidence is a statement made outside of court, or some other judicial proceeding, which is used as evidence in a lawsuit or other legal action. Generally, unless one of several specified exceptions applies, hearsay evidence cannot be used in court-that is, it's "inadmissible."

However, such is not the case in deportation and removal actions, where generally, hearsay evidence can be used by you, and against you, so long as it is reliable and trustworthy. For instance, hearsay statements in police reports can be used in deportation proceedings. So, for example, if you're arrested for stealing a car, and the police, while investigating the crime, get a statement from a third party in which he or she states that you told him or her that you were in the U.S. illegally, the third party's statement can be used against you in a removal action.

How do you stop such a hearsay statement from being used? Usually, you'll need to show that the statement is not reliable. For instance, if you can show that the third party made the statement because the police threatened to arrest him or her, then the statement might be inadmissible because it was coerced and, as a result, was not trustworthy.

Witnesses can be used by both sides. Normally, the IJ can ask you questions, and you have to answer them. You have the right to call as many witnesses as needed to establish your case. You can call family, friends, and your employer to testify on your behalf. As a practical matter, you should avoid calling as witnesses anyone who might be the subject of deportation/removal actions, such as an illegal alien or a legal alien with a criminal record.

In addition, an IJ may compel testimony by subpoena (that is, force a witness to testify) if you show that the witness's testimony is essential to your case and that the witness is uncooperative. Likewise, the DHS can make you and other witnesses testify. However, you and the other witnesses can refuse to testify based upon the Fifth Amendment's right against self-incrimination. But the Fifth Amendment won't help you if you gave prior voluntary testimony on the same issue after being warned of possible self-incrimination.

Administrative notice allows the IJ to accept as true commonly known facts, such as current events or the contents of official documents, without making the parties produce evidence. Administrative notice most commonly arises in actions when an alien seeks "asylum"- when an alien wants to stay in the U.S. because he or she has a "well-founded fear" of returning to his or her country for certain reasons.

In such actions, IJs often take administrative notice of the current or "changed" conditions of the alien's native country when the IJ considers the alien's claim for well founded fear of persecution.

It is, nonetheless, possible that in a deportation/removal action an IJ could take administrative notice of commonly known facts that could bear on an alien's legal presence in the country, such as the facts that there are large portions of open or unguarded border between the United States and Mexico and Canada.

If the IJ intends to take administrative notice of facts that will have a direct impact on your case, such as "changed country conditions" mentioned above, the IJ must tell you that he or she intends to take notice of the fact, so that you have the opportunity to rebut or disprove those facts. Otherwise, the deportation/removal action lacks the required "fairness."

Stipulations, or "concessions," occur when you and the DHS agree to certain facts and issues so that there is no need to argue about them in court. The idea here is to shorten the trial or legal action so that only contested matters are argued in court. So, in a deportation-removal proceeding, you and the DHS might stipulate to a number of things, such as the facts and circumstances of how you came into the United States (or why you're seeking admission to the country), or how a witness who is not available at the hearing would testify if he or she was there.

Stipulations, or "concessions," are when the parties in a legal proceeding agree to certain facts and issues so that there is no need to argue about them in court. The idea is to shorten the trial or legal action so that only contested matters are argued in court. So, in a deportation/removal proceeding, you and the DHS might stipulate to a number of things, such as the facts and circumstances of how you came into the United States (or why you're seeking admission to the country), or how a witness who is not available at the hearing would testify if he or she was there.

Questions for Your Attorney

• What kinds of evidence will I need to gather and who will I need to call as a witness in my removal action?
• My husband is an illegal alien, but I'm not. He just received a notice of deportation. Can the government make me testify against him? Should I testify for him?
• One of my employees gave me false documentation with respect to the legality of his presence in the U.S. He's a good worker, and I like him, and he's asked me to testify for him at his removal action. Should I?