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In the United States, there is a complex set of rules that must be followed during all court cases. These rules are designed to ensure that everyone involved in a case gets a fair hearing, and that there is consistency between cases. Although an immigration removal proceeding may resemble a court case, it is actually an administrative hearing. This means that different standards and rules apply than if it were a court case, but there is still the fundamental goal of ensuring that the proceeding is fair to all parties involved.
Evidence consists of testimony and physical objects that are presented in a case to prove or disprove a point. In the case of immigration removal proceedings, the rules regarding evidence are different from the rules in a judicial case.
To prove your case at an immigration removal hearing, or to disprove the government’s case, you’ll need to provide evidence that supports your claim to remain in the country.
One of the most significant differences between a removal proceeding and a judicial case is that removal proceedings don’t follow the rules of evidence, which govern how evidence can be used and presented in a case. For example, the rules of evidence forbid the use of hearsay (which is information that’s not presented, first hand, to the court), but removal proceedings permit hearsay if it’s reliable and credible.
Removal proceedings instead require evidence to be clear, unequivocal and convincing. If questions arise about whether evidence certain is permitted, the immigration judge must determine whether the evidence is reliable and fair.
Immigration removal proceedings do follow these rules regarding evidence:
- The alien can present evidence in his or her defense
- The alien has a right to cross-examine witnesses
- The alien has a right to examine evidence against him or her
- Subpoenas (an order directing someone to appear in a legal proceeding or to produce physical evidence) are permitted if a witness won’t cooperate
- Discovery (the structured information-gathering process in a legal action) isn’t always permitted, and can be fairly limited if it is allowed
Admissibility of Evidence
During a removal hearing, it is the judge’s responsibility to determine which pieces of evidence will be permitted. If the judge decides that certain evidence is unreliable or if there are questions as to whether the evidence is accurate, the judge may decide that the evidence is inadmissible. The judge will ignore inadmissible evidence when making his or her decision in the case.
For example, if the alien has made statements under duress or coercion, then the alien or his lawyer can argue that the statements were made simply to satisfy the person who was asking the questions and should not be admitted into evidence.
Similarly, if official documents are presented as evidence, then the documents usually must be authenticated (that is, an expert must prove that they are genuine) before they can be admitted into evidence.
The immigration judge’s decision must be based upon evidence presented at the hearing. In other words, the immigration judge must look at the facts that were presented by both sides, then apply the relevant immigration laws to those facts in order to reach a verdict. This ensures that the immigration judge reaches an impartial verdict, and isn’t swayed by emotional issues.
Questions for Your Attorney
If you are facing a removal proceeding, it makes sense to hire an attorney to represent you and argue your case before the immigration judge. This is a serious legal hearing, and an immigration attorney will be able to guide you through the process.
Among the questions to consider asking your lawyer:
- Do you have prior experience handing immigration issues?
- Have you previously represented a client in a removal proceeding?
- What types of evidence do you need to help present my case?
- How much do you charge for your services?