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.
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