Introduction: Matter of D-R-, 25 I&N Dec. 445, 457-64 (BIA 2011)

On April 6, 2011, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) [PDF version]. In the decision, the Board found a respondent who had served as a special police officer during the Bosnian War was removable both for having been inadmissible at the time he was admitted as a refugee for misrepresentation of a material fact and for having assisted in extrajudicial killings. The Board reaffirmed its decision that the respondent was removable on both charges in Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) [PDF version] in a subsequent published decision on remand from the United States Court of Appeals for the Ninth Circuit.

In Matter of D-R- 2011, the respondent argued against his removal in part by arguing that the documentary evidence and expert testimony relied upon by the Immigration Judge in determining that he was removable were inadmissible and unreliable. The respondent also challenged the competency of his interpreter in hearings before the Immigration Judge. The Board rejected these arguments in the first Matter of D-R- and reaffirmed its conclusions without further analysis in the second Matter of D-R- decision. In this article, we will examine the Board’s analysis on these points from the first Matter of D-R- decision, as well as the Board’s reasoning for rejecting the respondent’s other applications for relief from removal. We will incorporate by reference the facts and procedural history from our general article on both Matter of D-R- decisions [see article].

Please see our detailed companion articles to learn about the Board’s analysis on the meaning of “material” in section 212(a)(6)(C)(i) of the INA [see article] and the Board’s analysis of the meaning of “assisted, or otherwise participated in” extrajudicial killing [see article].

Factual and Procedural History

Before continuing in this article, it is important that you first read our discussion of the underlying facts [see section]. Understanding these facts is necessary for understanding the forthcoming analysis. Because we discussed the facts in a general overview for all three of our specific Matter of D-R- articles, we incorporate them by reference here.

Claims Regarding Admissibility Expert Testimony and Documentary Evidence: 25 I&N Dec. at 457-61

The respondent argued that the expert testimony and documentary evidence submitted by the Department of Homeland Security (DHS) to establish his removability and that was relied upon by the Immigration Judge was “obviously inadmissible and unreliable evidence.” The Board noted that the respondent’s prior counsel in Immigration Court had not objected to the admissibility of any of the evidence submitted by the Government. However, the respondent argued that his previous counsel’s failure to object to the admissibility “constituted ineffective assistance of counsel, deprived him of due process, and warrants a remand.”

The Board explained that, due to the respondent’s failure to object to the admission of evidence in his hearings before the Immigration Judge, the issue was not preserved for review by the Board. The Board explained, after assessing the record of the proceedings, that the respondent’s previous counsel had opted to focus primarily on arguing that the evidence did not establish that the respondent had participated in extrajudicial killing “after initially making some evidentiary objections” regarding the admissibility of the evidence. The Board described this as a “tactical decision” by the respondent’s previous counsel. The Board cited to its published decision in Matter of Gawaran, 20 I&N Dec. 938, 942 (BIA 1995) [PDF version], wherein it held that, absent “egregious circumstances, an alien is bound by the ‘reasonable tactical actions’ … of counsel.”

The Board stated that, in most cases, a respondent raising an ineffective assistance of counsel claim must do so in accord with the procedural requirements set by the Board in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) [PDF version] in order for it to pervail. The respondent’s requirements are (quoting from Id. at 637):

1. That the motion to reopen or reconsider must be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;
2. That counsel whose integrity or competence is being impunged be informed of the allegations leveled against him and be given an opportunity to respond; and
3. That the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not.

The Board explained that under Matter of Lozada, the respondent must also show that respondent suffered prejudice as a result of the alleged ineffectiveness in addition to satisfying the three factors listed above. Id. at 640. The United States Court of Appeals for the Ninth Circuit, under the jurisdiction of which the instant case arose, held in Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) [PDF version], that the such a respondent must establish that the outcome of the proceedings would have been different without the counsel’s negligence. In Matter of B-B-, 22 I&N Dec. 309, 311 (BIA 1998) [PDF version], the Board held that the conduct of counsel must have been “so egregious that it rendered [the] hearing unfair.”

In short, Matter of Lozada and associated decisions set a relatively high bar for prevailing on a motion to reopen or reconsider based on a claim of ineffective assistance of counsel. However, the Board explained that in Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000) [PDF version], the Ninth Circuit held that a respondent need not necessarily strictly comply with each requirement of Matter of Lozada in cases where the record reflects a “clear and obvious case of ineffective assistance of counsel.”

In the instant case, the respondent had not strictly followed each requirement of Matter of Lozada. Specifically, the Board explained that he had never provided his former counsel with an opportunity to respond to his allegations nor had he filed a complaint against his former counsel with the appropriate disciplinary authorities or explained his failure to do so. Accordingly, the respondent relied upon the limited exception outlined in Castillo-Perez, arguing that his counsel’s conduct was so clearly and obviously negligent that he should be exempted from the requirement that he strictly comply with Matter of Lozada.

The Board would, for the foregoing reasons, disagree with the respondent’s claim that the alleged ineffective assistance of his previous counsel was “clear and obvious.”

Citing to both Matter of DeVera, 16 I&N Dec. at 268 and Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010) [PDF version], the Board explained that the Federal Rules of Evidence are not binding on immigration proceedings. The Ninth Circuit held likewise in Navarrette-Navarette v. Landon, 223 F.2d 234 (9th Cir. 1955) [PDF version]. In Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) [PDF version], the Ninth Circuit explained that the “sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.” The Board noted that it held similarly in Matter of DeVera, 16 I&N Dec. 266, 268-69 (BIA 1977) [PDF version]. As the Ninth Circuit explained in Navarrette-Navarrette, “administrative tribunals may receive evidence which a court would regard as legally insufficient.” However, the Board observed in footnote 9 of its decision in the instant case that the Federal Rules of Evidence “may provide helpful guidance in immigration proceedings.” To this effect, the Board noted that in Matter of DeVera, 16 I&N Dec. at 270-71, it had cited to the hearsay exception under the Federal Rules of Evidence in finding that a document was properly given full weight.

The respondent argued that the documentary evidence presented by the DHS was “inherently unreliable” because it was not authenticated and because there was no proper chain of custody. In Vatyan v. Mukasey, 508 F.3d 1179, 1182-83 (9th Cir. 2007) [PDF version], “official records and public documents from foreign governments may be authenticated either through the requirements of 8 C.F.R. 1287.6 (2010) or through any recognized process including the Federal Rules of Evidence.” In Vatyan, the Ninth Circuit added that an Immigration Judge has “broad discretion to accept a document as authentic or not based on a particular factual showing presented.” Furthermore, the manner in which the document is authenticated may affect how much weight the Immigration Judge affords to it in making his or her decision. The Board Explained that the Federal Rules of Evidence at section 901(a)-(b)(1) provides that authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims…” Furthermore, authentication requirement may be satisfied through testimony of a “witness with knowledge.”

The Board explained that in his testimony, Richard Butler, the DHS’s expert witness, described how the United Nations International Criminal Tribunal for the Former Yugoslavia at The Hague(“ICTY”), for which he had served as a military analyst, had seized the documents at issue from the archives of military and police installations. Furthermore, he testified about his participation in that process. Butler also estified about the process through which the ICTY certified documents for court proceedings. He discussed this specifically with regard to various documents submitted into evidence by the DHS. The Board noted that in United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009) [PDF version], the United States Court of Appeals for the Fourth Circuit had previously upheld the admission of similar evidence based on testimony by Butler.

The respondent also argued that, because he was not fluent in English, the DHS’s documentary evidence should have been deemed inadmissible because it was not translated into his native language. However, the Board cited to 8 C.F.R. 1003.33 in explaining that there exists no such requirement in immigration proceedings. The Board noted that, in any case, the respondent used a court-provided interpreter at his hearing.

The respondent further argued that his counsel should have objected to Butler’s qualifications as an expert witness. To this effect, he argued that Butler’s testimony should have been deemed by the Immigration Judge to be “inadmissible hearsay.” Citing to the Federal Rules of Evidence at section 702, the Board explained that an expert witness is generally defined as an individual who is “qualified as an expert by knowledge, skill, experience, training, or education.” Quoting from the same rule, the Board added that an expert is someone who has “scientific, technical, or otherwise specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine the fact in issue.” The Board cited to its own decision in Matter of Marcal Neto, 25 I&N Dec. 169, 176 (BIA 2010) [PDF version], wherein it held that Immigration Judges may rely on expert witnesses “regarding matters on which [judges] possess little or no knowledge or substantive expertise.”

The Board concluded that, based on the record, Butler “was clearly qualified to testify as an expert on military operations during the Bosnian War.” To this effect, the Board noted his extensive experience as a military analyst and specifically in assisting in war crimes prosecutions involving the Bosnian War. The Fourth Circuit also recognized Bulter’s credentials as an expert in United States v. Vidack, 553 F.3d at 347-49.

Having concluded that Butler was an expert witness, the Board held that his testimony did not constitute inadmissible hearsay. In Aguilar-Ramos v. Holder, 594 F.3d 701, 706 n.7 (9th Cir. 2010) [PDF version], the Ninth Circuit held that an expert may base an opinion on hearsay evidence and have the testimony not constitute inadmissible hearsay under the Federal Rules of Evidence. The Federal Rules of Evidence at section 703 permit an expert opinion to “include reasonable inferences that the expert draws from the available facts and data” (paraphrased by the Board). Accordingly, the Board determined that it was not improper for Butler to draw inferences from the facts in evidence and that his testimony was “clearly adequate to support the admission of DHS’s evidence in Immigration Court.”

The Board added that even if some of the evidence in question would have constituted inadmissible hearsay in Federal court, it would not have necessarily been so in immigration proceedings. In Matter of Grijalva, 19 I&N Dec. 713, 722 (BIA 1988) [PDF version], the Board held that hearsay evidence is admissible in immigration proceedings if it is reliable and probative. However, in Matter of Kwan, 14 I&N Dec. 175, 77 (BIA 1972) [PDF version], the Board noted that evidence of a hearsay nature may be afforded less weight by an Immigration Judge.

For those reasons, the Board concluded that the Immigration Judge was correct in finding that the DHS’s evidence was relevant and probative and that she properly considered it in rendering her decision.

Competency of the Interpreter: 25 I&N Dec. at 461-62

The respondent challenged the competency of his interpreter. Citing to Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000) [PDF version], he noted that “a competent translation is fundamental to a full and fair hearing.” The Board explained that under Hartooni v. INS, 21 F.3d 336, 339-40 (9th Cir. 1994) [PDF version], a respondent must show the following to prevail on this claim:

1. That the interpreter did not perform competently; and
2. That the respondent was prejudiced by this failure.

The Board noted that, while the respondent quoted “some passages of imperfect English that he assumes are based on inaccurate translations and a few examples of confusion in the transcript,” the respondent failed to cite “specific examples of material testimony that was not translated or was translated incorrectly.” The Board explained that an interpreter asking for clarification or making a correction to his or her own interpretation does not in and of itself show that an interpretation was inadequate. Rather, the Board noted that this may “indicate an effort to be as accurate as possible.” Furthermore, the noted that the respondent failed to show any examples of the Immigration Judge relying on incomplete or incorrectly translated testimony, and ultimately did not show that the outcome would have been any different with a better translation.

Claim that Proceedings Should Have Been Terminated: 25 I&N Dec. at 462-63

The respondent argued that removal proceedings should have been terminated because he had been granted adjustment of status more than five years prior to the commencement of proceedings. The respondent relied upon Garcia v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009) [PDF version], wherein the Third Circuit held in one case that the 5-year statute of limitations for seeking to rescind a grant of adjustment of status under section 246(a) applies to removal proceedings under section 240. However, the Board explained that this was not the rule of the Ninth Circuit. The Board observed that is own approach to the issue — that there is no five-year statute of limitations on removal proceedings as there is on section 246(a) rescission proceedings — was “consistent with the overall statutory scheme and congressional intent.” Furthermore, it added that no other circuit had adopted the Third Circuit’s position. Accordingly, the Board declined to follow the Third Circuit and held that the Immigration Judge had jurisdiction to address the issues in the case.

Furthermore, the Board found “wholly without merit” the respondent’s claim that the Immigration Judge lacked jurisdiction because the underlying issues in the case involved international law and war crimes to be. The Board explained that the purpose of civil immigration proceedings “is to determine his eligibility to remain in this country, not to punish him for criminal or other conduct in his home country.”

Other Forms of Relief from Removal: 25 I&N Dec. at 463-64

The respondent asked the Board to remand the case to allow him to seek alternative relief in the form of asylum, withholding of removal, and protection under the Convention Against Torture. The Board concluded that, due to the finding that the respondent was removable under section 237(a)(4), he was ineligible for asylum, withholding of removal, and withholding of removal under the Convention Against Torture. However, the Board determined that the respondent was eligible to seek deferral of removal under the Convention Against Torture. Accordingly, the Board remanded the record to the Immigration Judge to allow the respondent to endeavor to establish his eligibility for deferral of removal.

Conclusion

The Board’s 2011 Matter of D-R- decision includes important analysis regarding raising claims concerning the admissibility of evidence and expert testimony. Furthermore, the Board also discusses raising claims based on the competency of an interpreter in immigration proceedings. When in immigration proceedings, it is essential to consult with an experienced immigration attorney for guidance throughout the entire process.

Please see the introduction for links to our articles on other issues addressed in the two Matter of D-R- decisions.