In a decision issued on September 25, the Board of Immigration Appeals (BIA) — very helpfully — provided guidance for immigration judges (IJs) to follow in considering expert testimony. The case is especially interesting because the respondent in this case — a Mexican national who is seeking asylum, claims that he fears harm not from Mexico, but from Iran in Mexico.
The respondent was placed into removal proceedings because he had no valid entry document — suggesting that he claimed credible fear at a port of entry, and was placed into expedited removal proceedings. Note I state "suggesting" — there is no statement in the decision that this was the case, but it is the most likely scenario.
In any event, the gist of the respondent's asylum claim is that he will be targeted by the Iranian government because of activities that he engaged in against that government, both in Mexico and Iran.
Specifically, he stated that after starting college in 2010, he worked for a professor gathering evidence on the alleged ability of (presumably hostile) governments to launch cyberattacks in the United States. "Although most of the work involved transcribing secret recordings taken from the various embassies in Mexico, the respondent became more deeply involved with the project."
In particular, at the professor's encouragement, he feigned conversion to Islam, and befriended the Iranian ambassador to the United States. With this connection, he was able to obtain an invite from the ambassador to attend a religious school in Iran, which he did, in 2011.
His original intent had been to befriend other Iranian officials, and thereafter gather intelligence on "Iran's suspected cyberwarfare efforts", including by means of secret recordings. He determined, however, that the "religious school" was actually "an indoctrination center for Latin American students operated by an Iranian cleric" — unnamed in the decision — believed to have been behind the bombing of the Argentine Israelite Mutual Association building in Buenos Aries, Argentina, in 1994.
The respondent drew attention, however, and after his surreptitious bugs were found, he was accused of being a spy. Despite those accusations, he was able to make his way to the Mexican embassy, and eventually out of the Islamic Republic.
To support his claim, he offered his own testimony, and that of his mother and aunt, as well as of "a national security consultant and analyst whose focus is on issues relating to Latin America, Iran, and transnational organized crime". He also presented unspecified articles referencing his activities in Iran, but there is no mention of either an affidavit or testimony from the professor who put him up to this in the first place.
DHS had requested to voir dire the national security consultant before he testified — that is, question him about his credentials and expertise, and the relevance of his substantive testimony — but the IJ did not allow that.
The IJ eventually granted the respondent asylum, finding that he had shown a well-founded fear of persecution on account of political opinion (a conclusion that the BIA did not appear to be sold on, in a footnote).
To support that decision, as the BIA explained:
The [IJ] specifically said that he gave "significant weight" to the witness's testimony that Iran would seek to punish the respondent for spying in Iran because "pro-Iranian regime actors," such as Hezbollah and Mexican drug cartels, would seek "to engage in potentially politically beneficial schemes, especially if there was an added layer of plausible deniability, but without always careful aforethought to the plan."
The IJ further concluded that the Mexican government could not protect the respondent from those malefactors.
DHS appealed, challenging the IJ's conclusion that the respondent had established a well-founded fear of persecution by Iran in Mexico, and the court's reliance on the witness's testimony.
Specifically, DHS contended that it was an error for the IJ not to qualify the witness as an expert before the court heard his testimony, based on concerns regarding the "witness's expertise on the key issues in the case".
And not without reason: "Counsel for the DHS objected to the scope of the witness's testimony when he stated during direct examination that Iran's extra-territorial assassinations were not his 'full area of expertise.'" (whatever that means).
DHS also contended that it was an error for the IJ to give greater weight to the witness's opinion than to other evidence in the case, notably the 2016 Department of State Country Reports on terrorism, which stated "there are no known international terrorist organizations operating in Mexico."
There was plainly evidence that the Mexican government would protect the respondent. He testified that he believed Iranian agents had followed another student who had gone to pick up his bags at the airport and that agents "surveilled his home on numerous occasions, cut his telephone and power lines, and entered and searched his home in Mexico after he came to the United States".
His aunt testified that she had called the police about the suspected surveillance and break-in, and that the authorities conducted an investigation — demonstrating at a minimum an intention (if not expressly the ability) to derail the plans of Iranian agents and/or their confederates to harm the respondent.
As an aside, the BIA notably pointed out that DHS did not challenge the IJ's conclusion that the respondent did not pose a national security risk to the United States, despite the fact that a report from the FBI — submitted by the government — "stated that it could not rule out the possibility that" the respondent posed such a threat.
Voir dire of this witness likely would have made the case run more smoothly, at least on appeal, as the BIA explained:
Voir dire would have allowed the parties to establish the parameters of the witness's testimony, potentially limiting and focusing it on the specific issues within his expertise. Instead, we are now considering his qualifications after he provided almost 100 pages of testimony, requiring us to evaluate whether he was, in fact, an expert on all the issues he testified about and whether his opinion was sufficient for the respondent to meet his burden of proof.
In addition to disallowing voir dire, the IJ failed to "make a finding that there was a reliable factual or evidentiary basis for the expert's opinion to support his conclusion that the opinion was so persuasive as to deserve 'significant weight'", according to the BIA. That left the appellate panel without the ability to determine whether the respondent had met his burden of proof for asylum.
As an IJ, I often struggled with expert testimony, given the fact that there was little guidance on when to allow it, or how much weight to give it (particularly in the face of contradictory evidence). Helpfully in this regard, the BIA held:
In sum, in assessing whether to admit the testimony of a witness as an expert, an Immigration Judge should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion, and if it is admitted, the Immigration Judge should then consider how much weight the testimony should receive. If a party challenges the expert's qualifications, it is generally best to allow the party, upon request, to voir dire the witness before the testimony is presented in full. In considering how much weight to give an expert's testimony, the Immigration Judge should assess how probative and persuasive the testimony is regarding key issues in dispute for which the testimony is being offered. However, to the extent that the record contains contradictory evidence, the Immigration Judge should explain why inferences made by the expert are reasonable and more persuasive than the other evidence presented.
In order to assess the issues raised by DHS on appeal, the BIA remanded the case to the IJ to make findings regarding the scope of the purported expert's "expertise as to the key issues in dispute", "to determine whether there is evidence in the record that would support" that witness's opinions", and to explain why the IJ found the witness's testimony to be more persuasive than any contradictory evidence.
Note that this respondent has been in removal proceedings since August 2011, and that it took the case nine years before the case made its way to the BIA for a decision. And, as the BIA remanded the matter, it will likely take at least another year before the BIA gets the case back (assuming that the IJ again grants the respondent asylum and DHS again appeals). If you are wondering why there were more than 560,000 defensive asylum applications pending at the courts as of August 14, this case should give you an idea.