Preparing for a Merits Hearing in Asylum Case
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As an applicant for asylum who has been placed into removal proceedings, you will need to present your case at an Individual Merits Hearing. The purpose of this hearing is for an Immigration Judge (“IJ”) to confirm and evaluate information in your asylum application, then decide whether you merit a grant of asylum.
Your Merits Hearing might last just a few hours or stretch over several different days, depending on your unique facts and on how many witnesses testify in support of your case. For more details about the procedural steps leading up to this hearing, see “How to Prepare an Asylum Application in Removal Proceedings” and “Timing of Applying for Asylum in Removal Proceedings.”
Your Merits Hearing will be adversarial – that is, a Department of Homeland Security (“DHS”) trial attorney will argue that you should be removed from the United States, by testing:
- your and your witnesses’ credibility (believability), and
- your legal claim to asylum.
Therefore, you must know -- and will have to present -- your story well. You also have to ensure that your witnesses are well-prepared, and that you submit all the required documents on time and in accordance with the procedures set out by your IJ.
Here, we’ll describe exactly what you must do to prepare for your merits hearing.
Getting Ready to Testify
In order to convince the IJ that you are credible, you will need to be honest, accurate, detailed, and consistent in all of your testimony. You will also need to be consistent with what you had stated in your application. After your attorney and the IJ ask you questions, the DHS attorney will cross-examine you (that is, ask you questions to address any weaknesses or inconsistencies in your application or testimony).
So, the first step in preparing to testify involves your knowing your entire asylum application very well. Pay particular attention to the dates when events in your life occurred -- they're easy to forget. If you started this process with an affirmative application for asylum, you should recognize this step as very similar to what you went through in preparing for your asylum interview; and it would be worth reviewing our guidance on that topic, found in “How to Prepare for an Asylum Interview.”
Your attorney may hold a practice session with you, but even if he or she does, it's important to spend time preparing on your own. When reviewing all this information, pay attention to whether all the details are consistent with each other, and whether they are all accurate. If you see any mistakes or discrepancies -- for example, your I-589 has a typo saying that you received a threatening phone call in 2011, but in fact it took place in 2012 -- you must point these out, and explain them to the IJ and the DHS trial attorney as soon as possible – and no later than at the beginning of your hearing.
At the hearing, the DHS attorney might be argumentative and rude, and might ask you similar questions several times. To prepare, practice explaining details that are confusing or might seem inconsistent in your application. Also practice questions that address any weaknesses in your legal claim for asylum.
Some IJs are very controlling and will take over the questioning themselves even if you have an attorney. Some may be rude or raise their voice. Ask your attorney or other applicants who have been before your IJ what to expect. If possible, try to watch a case that’s before your IJ. (Removal proceedings are generally open to the public.)
Also, if you do not have corroborating documents that the IJ would expect you to have (such as identity documents, police or medical records, or witness statements), be prepared to testify why they are not available, and how you have tried to obtain them.
Arranging for Witness Testimony
After you yourself testify, you will have the opportunity to call witnesses. Your attorney will ask them questions, the IJ will often interrupt, and then the DHS attorney will cross-examine them. The DHS attorney typically does not call witnesses, but instead focuses on challenging your witnesses’ credibility.
On a date specified by your IJ before the hearing, you will have to submit a list of witnesses who will testify. Even if you are not absolutely certain that all the witnesses will testify, you should include them on the list. Note that witnesses who are in the United States must have lawful immigration status to be able to testify.
You might have any of the following types of witnesses testify for you:
- material witnesses, such as friends or family members who can testify about parts or all of your story
- country-conditions experts, for example scholars or members of human rights organizations (note that in addition to submitting the expert’s name on the witness list, you'll need to include the expert’s resume and an affidavit of what the expert intends to testify about. Expert testimony should focus on the specific elements of your claim for asylum and corroborate specific details from your testimony
- medical (or psychological) experts, who will also need to submit affidavits and resumes and be included on your witness list.
Ask your witnesses to re-read their declarations or affidavits before they testify. Like yours, witness testimony must be truthful, detailed, and consistent. Your witnesses will be permitted to testify only about their own knowledge or experiences, or what they had witnessed personally. However, it is a good idea for them to also read your application before the hearing.
IJs typically allow witnesses (especially expert witnesses or witnesses who are not in the United States) to testify by telephone. You must submit a motion requesting telephonic testimony before the hearing. If your witnesses will testify in person, discuss transportation arrangements with them.
Submitting Corroborating Documents Before Your Hearing
Before your hearing (on a date set by your IJ), you will have to submit supporting documents into evidence. Submit only authentic and truthful documents. If possible, make sure they are official and original versions. Often, the DHS attorney will have your documents tested for authenticity, in the United States and/or in your home country. If anything you submit is deemed not genuine, your showing of credibility will be greatly weakened. Make sure to follow any procedural or formatting requirements that your IJ specifies.
If possible, submit a legal brief before your hearing. (Lawyers almost always prepare such briefs.) It should focus on the particular facts of your story, and on any difficult legal issues in your case.
Contacting DHS Trial Attorney Before Your Hearing
Your attorney should try to contact the DHS trial attorney a few days before your hearing, especially if you have a strong case. The DHS attorney might be willing to state what weaknesses your case seems to have, and what will be the focus of your hearing.
Occasionally, DHS attorneys will agree to sign stipulations -- that is, documents stating that you are eligible for asylum or other relief. Although this is rare, it generally means that the IJ will grant you asylum or other relief without asking you to testify about your whole story.
Note that the DHS attorney who appeared at your Master Calendar Hearing will probably not be the attorney for your Merits Hearing. Also, DHS attorneys are often busy, and difficult to reach.
What to Bring to Your Merits Hearing
You will want to bring the following documents with you to the hearing:
- your proof of identity, such as a passport, national identity document (such as a cedula) and/or driver's license
- the DHS-issued Notice to Appear
- any original documents in support of your application that you have not had a chance to submit yet, and
- a complete copy of your asylum application, and any lists or outlines you wrote for yourself when preparing for your hearing.
If possible, try not to bring young children. Your Merits Hearing will be tiring and long, and IJs do not like to be disrupted during court proceedings. Also, make sure that any family members or friends who come with you have legal immigration status. Bring snacks and water if permitted.
Last Tips: The Day Before Your Hearing
You'll want to be feeling your best on the day of your hearing. The day before, figure out your transportation arrangements, and prepare all the materials you will need to bring. Make sure you are well-rested, and eat before you leave for the hearing.
Last-day preparation for your hearing is similar to preparing for an asylum interview. Therefore, see other specific suggestions under “Last Tips: The Day Before Your Interview” in “How to Prepare for an Asylum Interview.”