If you have an upcoming removal hearing, you might want to bring a witness to Immigration Court to bolster your case. Having a witness who can testify on your behalf can boost your credibility, corroborate your story, or substantiate your claims. This article will provide information about how witnesses can help you at your individual merits hearing in Immigration Court.
What Makes a “Good” Witness
A good witness will arrive to court neatly dressed and will provide helpful testimony to the court in a confident manner that is consistent with your application for immigration relief and with any evidence that you have provided. The decision in your case may turn on your and your witnesses’ credibility (or believability).
By the same token, you should not bring in witnesses just for the sake of having an extra voice in the room. Individual merits hearings can be lengthy and the government attorney and the immigration judge will have no patience for a witness who has little insight or knowledge of matters of importance in your case.
Additionally, your witness should be prepared for any confrontational or argumentative questions that the immigration judge and the Department of Homeland Security (DHS) trial attorney might ask. A witness who doesn’t really know much about your situation, or feels uncertain about the subject of his or her testimony, may end up changing his or her story on the stand, and thus doing you more harm than good.
For this and many other reasons, it is advisable to seek the advice of an experienced immigration attorney to help you and your witnesses prepare. For more on what to expect, see “Immigrants in Deportation or Removal Proceedings.”
When Material or Corroborating Witnesses Are Helpful
Material witnesses – who can corroborate any aspect of your testimony – can be helpful in any individual merits hearing. This is especially true in cancellation of removal cases, where the immigration judge will be looking for evidence of your good moral character and seeking more reasons to allow you to stay in the U.S. than reasons to deport you. If you know U.S. citizens or legal permanent residents who are willing to vouch for your good character, especially if they serve the community or are high-ranking professionals (for example, teachers, police officers, and politicians), you should have them testify on your behalf.
In asylum cases, material witnesses can be helpful to corroborate your story of past persecution or your fear of persecution or that you are a member of a particular religion or social group. For example, a church pastor could testify that you are regular member of his or her congregation and that you have confided your fear of persecution based on your religion. The pastor could also testify to knowing that people from your religion are persecuted in your home country. Additionally, if you know people (who are legally present in the U.S.) from your country who can tell a story similar to yours or who were granted asylum on similar grounds, you should bring them to court to talk about the country’s conditions and the treatment of people like you.
When Expert Witnesses Are Helpful
Expert witnesses are especially helpful in asylum and cancellation of removal cases. A country conditions expert (such as a professor or a member of a human rights watchdog group) can answer questions in court about violent conditions in your home country or about the political party or social group to which you belong and that experiences persecution there. If you are able to find a nonpartisan academic to testify on your behalf, it could boost your credibility in court.
A psychological or medical expert can provide an explanation for things like why you are applying after the one-year asylum filing deadline or provide reason for any gaps in your recollection of events in your home country (for example, post-traumatic stress disorder) or confirm that you have injuries consistent with torture.
If you are applying for cancellation of removal, a medical expert can testify to the poor standard of medical care in the country to which you and your U.S. citizen child would be forced to return.
Submitting a Witness List to the Court
There is a “call up date” for every individual Immigration Court hearing, which is the date by which all supporting documentation must be submitted to the court. This date should be provided by the immigration judge at the “Master Calendar” hearing and is usually ten to 30 days before the individual hearing date.
You should submit a witness list to both the court and government prior to this date. Even if you are unsure whether a potential witness will be available to testify on your behalf, it is better to add him or her to the witness list than to try to amend the list later. It is not necessary that every witness on the list testify at your hearing.
A witness list should include the witness’s full name, title (if applicable), and relationship to you, the respondent. For example, a material witness in an asylum case based on fear of persecution for reasons of sexual orientation could be “John Doe, U.S. citizen and respondent’s partner, who will testify that he is in a romantic relationship with the respondent and that the respondent fears returning to his native country.”
For an expert witness, you might say: “Dr. Jane Smith, respondent’s treating psychologist, who will testify that respondent suffered psychological trauma due to persecution in his home country.” Also include the expert witness’s resume and qualifications, if available.
Submitting a Motion to Allow a Witness to Testify by Telephone
If you have a witness who is willing to testify on your behalf but is unable to physically make it to your hearing, you can submit a “Motion to Allow Telephonic Testimony” to the court (and serve a copy to the DHS trial attorney) at least ten days before your hearing date and earlier if you can.
Submitting this motion early can be key, because if your motion is rejected and your witness still cannot testify in person, you can submit an affidavit from the witness prior to the call up date. This affidavit should contain the same details that he or she would have revealed in court.
If approved, your witness will be allowed to testify by telephone at your hearing. The court will usually approve these motions for all expert witnesses (as individual hearings can be lengthy and professionals usually do not have several hours to spare) and for any material witnesses who live far away or for whom traveling is a hardship.
Be sure to provide a good reason for why your witness is unable to come to court. For example, “Dr. Jane Smith is on call at Liberty Hospital on the date of the hearing and is unable to travel for the hearing,” or “John Doe is a senior citizen who requires a ventilator to breathe, and traveling 100 miles to the court would be unduly burdensome.”