In what many private practitioners of immigration law find to be a long
overdue decision, 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, did not permit
the United States Department of Homeland Security ("DHS") to
bypass the Immigration Court Practice Manual to file evidence in support
of its charges of removability against a foreign-national asylee. DHS
attempted to bypass the rule that was discussed in my last post and that
requires that evidence in support of a party's position be filed at least
fifteen days prior
to the relevant hearing. Also as discussed in my last post, there is an
exception to that rule if the purpose of the offered evidence is to
rebut and/or impeach. As one may imagine, such an exception could potentially be subject to
abuse by DHS in situations where DHS alleges a foreign national has committed
fraud of some sort and therefore can be served with the evidence supporting
such a charge on the date of the relevant hearing, instead of fifteen
days prior, under the guise that the evidence's purpose is to impeach
the foreign national's credibility.
However, a few days ago in
Urooj v. Holder, the Ninth Circuit clarified once again
the difference between substantive evidence and rebuttal &/or impeachment evidence. The Ninth Circuit specifically referenced the Immigration Court Practice
Manual's filing-deadline rule and held that if DHS seeks to support
its position with evidence, then such evidence must be filed in concert
with such filing deadlines.
The case is also interesting because it involved the
foreign national's refusing, per her attorney's instruction, to
answer DHS's questions
during the relevant immigration-court hearing, but such refusal, the Ninth
Circuit held, could not be used to establish DHS's position
absent any substantive evidence
that was properly filed, i.e., filed pursuant to the Immigration Court
Practice Manual's filing deadline.
It is important to note that such tactics would likely be effective not
only when the burden is on DHS to prove removability but also
when the foreign-national respondent already holds lawful immigration status.
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