2
e Opportunity To Present Probative Evidence
Expert evidence is a form of evidence, and thus
the proper starting point is to discuss basic rules regarding
evidence in Immigration Court. In immigration
proceedings, the “‘sole test for admission of evidence is
whether the evidence is probative and its admission is
fundamentally fair.’” Nyama v. Ashcroft, 357 F.3d 812,
816 (8th Cir. 2004) (quoting Espinoza v. INS, 45 F.3d
308, 310 (9th Cir. 1995); see also, e.g., Kholyavskiy v.
Mukasey, 540 F.3d 555, 565 (7th Cir. 2008); Matter of
Grijalva, 19 I&N Dec. 713, 721-22 (BIA 1988). It is
well settled that the Federal Rules of Evidence are not
binding in immigration proceedings and that evidentiary
considerations are more relaxed in Immigration Court
than in Federal court. See, e.g., Matter of De Vera, 16 I&N
Dec. 266, 268-69 (BIA 1977); Navarrette-Navarrette v.
Landon, 223 F.2d 234, 237 (9th Cir. 1955) (stating that
“administrative tribunals may receive evidence which a
court would regard as legally insufficient”).
Moreover, an alien has the statutory and
due process right under the Fifth Amendment to a
full and fair hearing and a reasonable opportunity
to present evidence on his or her own behalf.
Section 240(b)(4)(B) of the Immigration and Nationality
Act; 8 U.S.C. § 1229(b)(4)(B); Hassan v. Gonzales, 403
F.3d 429, 435 (6th Cir. 2005); Kaur v. Ashcroft, 388
F.3d 734, 736-37 (9th Cir. 2004); Capric v. Ashcroft, 355
F.3d 1075, 1087 (7th Cir. 2004). Expert evidence can
be highly persuasive to help satisfy a party’s burdens of
proof and persuasion. See generally Matter of V-K-, 24
I&N Dec. 500, 502 n.2 (BIA 2008).
Immigration Judges have broad discretion in
conducting hearings, and a “due process violation occurs
only when the ‘proceeding was so fundamentally unfair
that the alien was prevented from reasonably presenting
his case.’” Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009)
(quoting Hassan, 403 F.3d at 436); Ladha v. INS, 215
F.3d 889, 904 (9th Cir. 2000). To prevail in a due process
challenge to the exclusion of evidence, an alien must
show both that he was denied a reasonable opportunity
to be heard on his evidence and that there was resulting
prejudice (that is, the outcome of the proceedings may
well have been different had the expert testimony been
considered). See, e.g., Diop v. Holder, 586 F.3d 587 (8th
Cir. 2009); Rusu v. U.S. INS, 296 F.3d 316 (4th Cir.
2002); Espinoza, 45 F.3d at 311. As explained by the
Seventh Circuit in Kholyavskiy v. Mukasey, 540 F.3d 555,
the key consideration is whether an Immigration Judge’s
evidentiary ruling prevents an alien from presenting
probative evidence on his own behalf. For example, in
Kyolyavaskiy, the court, in finding no error where the
Immigration Judge failed to consider the witness as an
expert because of the witness’s lack of an academic or
research background on the topic, discussed the limited
probative value and reliability of the testimony. Id. at
565-66. By contrast, in Tun v. Gonzales, 485 F.3d 1014,
1025-26 (8th Cir. 2007), the Eighth Circuit found a due
process violation when the Immigration Judge excluded
an affidavit from a highly relevant and even critical expert
witness when the affidavit was facially unobjectionable.
Guidance from Federal Rules
While the Federal Rules of Evidence clearly are
not binding in immigration proceedings, the Board and
the circuit courts have found that the Federal Rules may
provide useful guidance in determining the admissibility
of evidence. See, e.g., Niam v. Ashcroft, 354 F.3d 652,
658-60 (7th Cir. 2004) (holding that, while administrative
agencies are not bound by the conventional rules of
evidence, the Federal Rules can provide helpful guidance
on whether the admission or exclusion of expert testimony
is fundamentally fair). e Federal Rules of Evidence
codified common law rules regarding “the reliability and
probative worth” of certain types of evidence. Felzcerek v.
INS, 75 F.3d 112, 116 (2d Cir. 1996). e fact that specific
evidence would be admissible under the Federal Rules
“lends strong support to the conclusion that admission
of the evidence [in immigration proceedings] comports
with due process.” Id.; see also Matter of DeVera, 16 I&N
Dec. at 270-71. For example, in Nyama, 357 F.3d at
816, the Eighth Circuit noted that the “traditional rules
of evidence do not apply to immigration proceedings”
but also cited to Federal Rule of Civil Procedure
26(a)(1)(B) as being persuasive in upholding the
Immigration Judge’s decision to permit the Government
to question an applicant with documents that were not
admitted in advance of the hearing because they were
being used to impeach the applicant’s credibility. In a case
regarding expert evidence, the Ninth Circuit in Malkandi
v. Holder, 576 F.3d 906, 916 (9th Cir. 2009), noted that
the strict rules of evidence are not binding in Immigration
Court. However, the court found that the introduction
of the 9/11 Commission Report into evidence without
also admitting underlying supportive documentation was
fundamentally fair by stating that the report was “akin to
an expert report” and that under Federal Rule of Evidence