How Witnesses Can Help You Defend Against Deportation in Immigration Court

Both material witnesses and expert witnesses can help a foreign national defend against removal from the United States.

By , Attorney · Temple University Beasley School of Law

If you are in immigration removal (deportation) proceedings, and have an upcoming individual hearing before an immigration judge, you might want to bring one or more witnesses to court. Having a witness who can testify on your behalf can boost your credibility, corroborate your story, or substantiate your claims, potentially leading you to avoid deportation and even be granted some lawful immigration status in the United States.

What Makes a "Good" Witness in Immigration Court

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 could 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 immigration judge will have little patience for a witness who has limited insight or knowledge of matters of importance in your case, but is just trying to do you a favor.

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 their testimony, or is easily intimidated, could end up changing their story on the stand. That would possibly do you more harm than good.

For this and many other reasons, it is wise to seek the advice of an experienced immigration attorney to help you and your witnesses prepare for court. For more on what to expect, see Immigrants in Deportation or Removal Proceedings.

When Material or Corroborating Witnesses Are Helpful in Immigration Court

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 a cancellation of removal case.

In asylum cases, material witnesses can be helpful to corroborate your story of past persecution or your fear of future persecution, or that you are a member of a particular religion or social group. (An asylum claim must also show a connection or "nexus" between the persecution and your race, religion, nationality, political opinion, or particular social group.)

For example, a church pastor could testify that you are regular member of the 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. Or your doctor could testify to you having physical signs of past beatings or torture.

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, or even who knew you and faced similar persecution (for example because you were in the same labor union, gay rights group, or the like), you could bring them to court to talk about the country's conditions and the treatment of people like you.

When Expert Witnesses Are Helpful in an Immigration Hearing

Expert witnesses are especially helpful in asylum and cancellation of removal cases. A country conditions expert (such as a professor, anthropologist, or member of a human rights watchdog group) can answer questions in court about violent conditions in your home country, particular crackdowns or incidents, or about the often-targeted political party or social group to which you belong. 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).

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 Immigration 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" scheduling 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 that person 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 or Video Chat

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" or "Motion to Allow Video 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 or video 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.

You'll need 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."

Getting Legal Help

As if immigration law weren't complex enough already, having to appear in immigration court adds a whole new lawyer, with strict procedures and an adversarial relationship with the attorney representing the U.S. government. Talk to an experienced immigration attorney for a full analysis of your case's potential to win, any reasonable strategies that might help you apply for relief, and so on.

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