Admissibility of Impeachment Evidence Presented in Cross-Examination

Admissibility of Impeachment Evidence,



On June 30, 2022, the Board of Immigration Appeals (BIA) published a notable precedent decision on the admissibility of impeachment evidence in the Matter of E-F-N-, 28 I&N Dec. 591 (BIA 2022) [PDF version]. The Board's central holding reads as follows:

An Immigration Judge may rely on impeachment evidence as part of a credibility determination where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during proceedings.

In general, this issue will arise in a situation when the Government seeks to establish that an alien's testimony in removal proceedings is not credible. The Government may, in this situation, seek to present “impeachment evidence” to show that the alien's testimony is not consistent with other evidence not previously admitted. The Board's decision in Matter of E-F-N- addresses questions involving what defines admissible impeachment evidence, or simply put, what are the rules governing the Government's submission of impeachment evidence.

The Board makes clear that the Government's impeachment evidence must satisfy the following requirements:

The evidence must be probative, meaning “[t]he evidence must tend to prove or disprove an issue that is material to the determination of the case.” See Matter of Ruzku, 26 I&N Dec. 731, 733 (BIA 2016) [PDF version] [see our article].
The admission of the impeachment evidence must not be fundamentally unfair.

The Board articulated these rules in response to the facts presented in the particular case before it in Matter of E-F-N. The appeal was brought by an alien respondent whose applications for asylum and withholding of removal had been denied by the immigration judge below on adverse credibility grounds. The respondent raised claims regarding the evidence that the immigration judge relied upon to reach the adverse credibility determination.

Applying the Board's Rule to Particular Facts

The respondent, in seeking asylum, claimed that he had been subject to persecution in Cameroon on account of his political opinion . The Board noted that among the respondent's numerous claims was his claim that he had been “unlawfully imprisoned … between October 2011 and February 2012” by Cameroonian authorities. The respondent stated that after he was released from prison, he went into hiding in Cameroon during a period that began with February 2012 and concluded with February 2013, at which time he fled to Nigeria. The respondent specifically claimed that he did not have electricity while he was in hiding, nor did he have access to a cell phone or internet.

During the respondent's cross-examination, the Government introduced social media images that had been posted to the respondent's Facebook account between June 20, 2012, and January 18, 2013, encompassing the period in which he stated that he had no access to the internet. Upon being presented with the new evidence, the respondent denied having posted the images and speculated that his girlfriend — who he claimed had access to his Facebook account — may have posted them. The respondent objected to the admission of the Facebook evidence, but the immigration judge admitted the evidence over the respondent's objections. The immigration judge declined to accept the respondent's explanation for the images being posted to his Facebook account while he claimed to have had no access to the internet, “in part, because he initially claimed he lost access to the Facebook account but later admitted he had full access to it.”

On appeal to the Board, the respondent argued that the immigration judge erred in admitting the Department's Facebook evidence into the record.

The respondent first argued that the social media evidence was hearsay and thus not probative to the disposition of his asylum application. The Board disagreed. To begin, the Board noted that immigration proceedings are not governed by the Federal rules of evidence, and that the “sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.” Matter of E-F-N-, 28 I&N Dec. at 593, quoting Matter of D-R-, 25 I&N Dec. 445, 448 (BIA 2011) [PDF version] [see our article]. The Board concluded that the immigration judge correctly found that the social media evidence was probative to the question of whether the respondent had testified credibly “because it indicate[d] that he was not actually in hiding-without access to electricity, a cell phone, or the internet-during the period he claims.”

The respondent argued that even if the evidence was probative, the immigration judge's decision to admit the evidence was fundamentally unfair and violated his rights to procedural due process because it was submitted after the filing deadline for new evidence. As a result of the timing, the respondent argued that he had been surprised and ambushed by the new allegations. The Board rejected the respondent's fairness and due process claims in turn.

The Board first held that the admission of the social media evidence during the respondent's cross-examination was fair. The Board has previously affirmed adverse credibility findings that were based on impeachment evidence submitted during cross-examination. See e.g., Matter of O-M-O-, 28 I&N Dec. 191, 192, 196-97 (BIA 2021) [PDF version]. The Board opined in the instant matter that “[r]equiring possible impeachment evidence to be submitted in advance of the merits hearing would defeat the purpose of such evidence and undermine [the Government's] ability 'to prevent perjury and to assure the integrity of the trial process.'” Matter of E-F-N-, 28 I&N Dec. at 594, quoting Kansas v. Ventris, 556 U.S. 586, 593 (2009).

The Board also found that the admission of the social media impeachment evidence did not violate the respondent's right to due process. After noting that the rules for the admission of evidence in administrative immigration proceedings are not bound by the Federal Rules of Evidence, the Board observed that the fact that the social media evidence in the instant case would have been admissible under the Federal Rules of Evidence undermined the respondent's claim that the immigration judge had erred in admitting the evidence. The Board explained that the Federal Rules of Evidence, which are stricter than the rules defining the admissibility of evidence in immigration court, do not require the party submitting impeachment evidence to disclose its contents to the witness except on request of the adverse party's attorney. Moreover, under the Federal Rules as the Board explained them, evidence is admissible so long as the witness is given the opportunity to explain or deny the statement. The Board found that the Department had provided both the respondent and his attorney with copies of the impeachment evidence during the cross examination. The immigration judge had then given the respondent the opportunity to testify why the evidence was not inconsistent with his testimony on direct, and his attorney an opportunity to argue that the evidence did not undermine his credibility.

The Board's decision went on to address other discrepancies between the evidence and the respondent's testimony that the immigration judge relied upon in rendering an adverse credibility finding — ultimately concluding that the immigration judge had not erred in reaching her conclusion that the respondent was not a credible witness. However, we will limit our discussion of the facts in the instant matter with the Board's conclusions regarding the admissibility of impeachment evidence.

Limitation of the Decision: IJ Filing Deadlines

The Board made clear that its result in the instant case was reached in light of the fact that the social media evidence introduced into the record to impeach the respondent's credibility “clearly qualifie[d] as impeachment evidence.” Matter of E-F-N-, 28 I&N Dec. at 594 n.4. As a result, the Board did not “address a situation where a party has submitted evidence after the filing deadline that it claims is for impeachment purposes but is not evidence that is being used to impeach the testimony of a witness.” Id. On this point, the Board cited to its precedent decision in Matter of Interiano-Rosa, 25 I&N Dec. 264, 265-66 (BIA 2010) [PDF version], wherein it discussed the “broad discretion” of immigration judges “to conduct and control immigration proceedings and to admit and consider relevant and probative evidence.” As a result, the Board held in Interiano-Rosa, consistent with 8 CFR 1003.31(c), “[a]n application or document that is not filed within the time established by the Immigration Judge may be deemed waived.”

The Board's footnote in Matter of E-F-N- suggests two scenarios that may be distinguishable from its new decision. Firstly, the Board suggested that it may have considered the matter differently if the social media evidence submitted to impeach the respondent's testimony had not been clearly qualified as impeachment evidence — that is, had it not been probative to the question of whether the respondent has testified credibly. Secondly, in citing to Matter of Interiano-Rosa in footnote 4, the Board referenced the fact that immigration judges have regulatory authority to set filing deadlines for the submission of new evidence and may deem evidence that is not submitted before the deadline to be waived. In the instant matter, the immigration judge had not set an express filing deadline for the proffer of impeachment evidence, so some of the issues alluded to in Matter of Interiano-Rosa did not apply.