- Introduction: Matter of Y-S-L-C-
- Facts of the Case and Procedural History
- BIA Analysis Regarding the Respondent's Testimony
- BIA Holds that Respondent Was Permitted to Testify About His Own Experiences
- BIA Finds that the Immigration Judge's Treatment of the Respondent was Inappropriate
- Conclusion: Matter of Y-S-L-C-
On November 23, 2015, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) [PDF version]. The Board held that it is inappropriate to apply the Federal Rules of Evidence requirements for expert testimony to an alien testifying about events that he or she has personal knowledge of, and furthermore that the Federal Rules of Evidence are not binding on immigration proceedings. The Board also held that when an Immigration Judge acts in a manner unbecoming of an Immigration Judge, the case may be remanded to a new Immigration Judge. In this article, we will review the facts and procedural history of the Matter of Y-S-L-C-, the issues at hand, the Board's analysis and decision, and the broader effects of the precedent decision going forward.
The respondent was a 15-year old child from Guatemala who had arrived in the United States in 2014. The respondent requested withholding of removal under the Convention Against Torture. The Immigration Judge denied the respondent's request for withholding of removal. The respondent appealed the decision to the BIA.
The Board notes that, according to the respondent, he and his family had been violently harassed, threatened, and extorted by gangs in Guatemala.
In a hearing before the Immigration Judge regarding the respondent's application for withholding of removal, the Immigration Judge precluded the respondent's counsel from questioning him about the effect that his experiences in Guatemala had on him. The Immigration Judge's reasoning was that the respondent was not qualified to testify about “psychological problems” stemming from his experiences in Guatemala because he was a layman with no credentials to qualify as an expert witness. The following is the exchange excerpted by the Board in its entirety:
“[COUNSEL] TO [THE RESPONDENT]
Q. These events that you suffered and endured in Guatemala, have they caused you any psychological issues; nightmares—
JUDGE FOR THE RECORD
We'll qualify him as an expert witness.
JUDGE TO [THE RESPONDENT]
Q. Sir, how far have you gone in school?
A. How far did I go in school? The 6th grade.
Q. Have you ever lectured on a professional level on psychology?
[COUNSEL] TO JUDGE
Your Honor, I'm not trying to qualify him as an expert. All I'm asking is questions about his personal answers. He can tell us if he's had nightmares. He can tell us if he's had terrors.
JUDGE TO [COUNSEL]
You can ask specific questions. You can't ask leading questions. You asked him what psychological problems. I'm getting the background to understand whether he can testify as to psychological problems.
[COUNSEL] TO JUDGE
Well, Your Honor, he's not—
JUDGE TO [COUNSEL]
If you're willing to stipulate that he has never lectured at the university or professional level, he's never written any professional journals, and he's never had any training on psychology, then I will allow him to testify as a lay witness. But he's not going to testify as to vague psychological problems. You can ask him if he has experienced difficulties because of what he saw when he was 4 years old in Guatemala and questions like that. But you cannot ask him the psychological impact. On appeal, the respondent argued that he should have been able to testify about his own experiences without having to meet the qualifications of an expert witness.”
The Board ultimately sided with the respondent regarding his ability to testify about his own experiences. The Board noted that the Federal Rules of Evidence — which guide expert testimony — prohibit a lay witness from giving an opinion bsed on “scientific, technical, or other specialized knowledge.” Under Fed. R. Evid. 701(c), 702(a), a witness must be qualified as an expert in order to offer such testimony.
The Board noted that under its precedent in the Matter of D-R-, 25 I&N Dec. 445, 458 (BIA 2011) [PDF version] and the Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999) [PDF version], “the Federal Rules of Evidence are not binding on immigration proceedings.” Rather, the test for determining whether evidence is admissible is “whether it is probative and its admission is fundamentally fair.” However, the Board noted that the Matter of D-R- held, citing to Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996) [PDF version] that the Federal Rules of Evidence “may provide helpful guidance” because if specific evidence is admissible under the Federal Rules of Evidence, it “lends strong support to the conclusion that admission of the evidence comports with due process.”
Furthermore, the Board noted that the Immigration Judge erred in his application of the Federal Rules of Evidence even if those rules were binding. This is because the “respondent's attorney asked him to testify regarding events that the respondent himself experienced…” The Board explained that under Fed. R. Evid. 602, there is a distinction between testimony that derives from a witness' personal knowledge and expert testimony. Accordingly, the Board found that “the requirements regarding the admission of expert and lay opinion testimony are inapposite to the respondent's testimony.” Furthermore, the Board found that the respondent's testimony was probative and its admission was fundamentally fair rendering it admissible in the context of immigration proceedings.
After finding that the Immigration Judge erred in treating the respondent's testimony as inadmissible, the Board found that the Immigration Judge's treatment of the respondent was inappropriate.
The Board quoted from Cham v. Att'y Gen. of the U.S., 445 F.3d 683, 690-91 (3d Cir. 2006) [PDF version] to note that an alien is “entitled, as a matter of due process, to a full and fair hearing on his application.” Citing to Wang v. Att'y Gen. of the U.S., 423 F.3d 260, 271 (3d Cir. 2005) [PDF version], the Board stated that “[c]onduct by an Immigration Judge that can be perceived as bullying or hostile can have a chilling effect on a respondent's testimony and thereby limit his or her ability to fully develop the facts of the claim. Referring to Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) [PDF version], the Board added that “[s]uch behavor also creates the appearance that an Immigration Judge has abandoned his or her role as a neutral fact-finder and raises a question whether the respondent was given a 'full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf.'”
The Board stated that “[i]t is difficult to view the above exchange [between the Immigration Judge and the respondent's attorney] as anything other than belittling to the respondent and insensitive to the difficult matters about which counsel was trying to question him.” Noting that while it is always inappropriate to treat an alien in such a manner, the Board stated that it was “particularly misplaced” in the instant case on account of the age of the respondent and his past experiences. In a footnote, the Board referenced the “Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children,” OPPM 07-01 at 7 (May 22, 2007) [PDF version] which provides guidance for Immigration Judges on how to treat such respondents.
Because the Board found that the “hearing was not conducted in a manner that meets the high standards expected of Immigration Judges,” the Board saw fit to vacate the Immigration Judge's decision and remand the record to a new hearing before a new Immigration Judge. As authority for remanding to a new Immigration Judge in this situation, the Board cited to Ali v. Mukasey, 529 F.3d 478, 492-93 (2d Cir. 2008) [PDF version] and Sukawanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) [PDF version].
There are two primary components to the Board's decision in the Matter of Y-S-L-C-. Firstly, the Board reaffirmed that testimony in immigration proceedings may be admitted if it is probative and if its admission would be fundamentally fair. While the Federal Rules of Evidence may be referred to for guidance, it is not binding on immigration proceedings (and it would not have precluded the respondent's testimony in the instant case even if it was binding). Secondly, the Board took issue not only with the Immigration Judge's decision, but also with his tone toward the respondent. The Board curtly found that the Immigration Judge conducted the hearing in a manner which was unbecoming of an Immigration Judge and called into question whether the respondent ever had an opportunity to present his case effectively. The Board took further issue with the fact that the Immigration Judge acted in such a manner toward a child respondent.
Beyond the conduct of the Immigration Judge, the Matter of Y-S-L-C- is an example of an alien obtaining a new hearing because he was not presented with an opportunity to fairly make his case for relief before the Immigration Judge. An experienced immigration attorney will be able to assess the circumstances of an alien's hearing before an immigration judge or other administrative body and determine if there are any deficiencies that can be pursued on appeal.
Furthermore, the Board reaffirmed the principle that all aliens in Immigration Court are entitled to respectful treatment and to a full and fair hearing on an application for immigration benefits or immigration relief.