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Court Requires Immigration Judge to Give Foreign National Time to Investigate Negative Evidence

The United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, issued a strong rebuke last week against the BIA and an immigration judge who not only permitted the United States Department of Homeland Security ("DHS") to issue last minute evidence that was harmful to an asylum applicant's claim but also failed to permit that asylum applicant time to investigate that evidence. The decision in Bondarenko v. Holder, some would argue, contrasts with the Immigration Court Practice Manual's permission of submission of evidence on the date of the hearing if the sole purpose of the evidence is to rebut and/or impeach. Nevertheless, the Ninth Circuit held that the asylum applicant "had a due process right to 'a reasonable opportunity' to investigate the [evidence]." The decision potentially could be applied in a number of situations in which DHS attempts to submit rebuttal evidence at a hearing without giving advance notice to the foreign national.