BIA Discredits Expert Witness

The Board of Immigration Appeals has determined that “where an expert witness’ background and testimony reflect a reluctance to consider contrary evidence and an inability to impartially assess matters involving the removal of persons to a given country, an Immigration Judge errs in giving the testimony of that witness significant weight.” In this case, the Board cited an expert witness’s co-authoring of an article that called for the cessation of all deportations of criminal non-citizens to Haiti.

The full text of Matter of D-J-L- can be found here: https://www.justice.gov/eoir/media/1430046/dl?inline

BIA Undermines Expert Testimony

The Board of Immigration Appeals has again undermined the testimony of an expert witness, finding it insufficiently supported.

“First, the expert did not profess any direct knowledge of the extent to which China tortures those convicted of drug trafficking crimes abroad, nor did he articulate any past professional experience with death penalty cases in China or the way in which China implements the death penalty. Second, the expert noted in his report that ‘there is a paucity of statistics on torture and executions in China’ and ‘little official information on the handling of expatriated drug-traffickers.’ He also did not provide any meaningful estimations on the number of individuals sentenced to death or the percentage of those convicted of crimes who were sentenced to death. Although he cited a law journal article stating that 95 percent of death sentences in China involve drug crimes, intentional homicide, and robbery, this statistic was not broken down further as to how likely a person convicted of drug crimes was to receive the death penalty or the likelihood of that the death penalty would be inflicted on individuals, like the respondent, who were convicted of drug trafficking in another country.”

“The relevance and the reliability of an expert witness’ opinions are significantly undercut when those opinions are informed by anecdotal or inaccurate facts or data. Because the expert relied on two anecdotes that are not analogous to the respondent’s circumstances to support his prediction that the respondent would be detained and tortured due to his drug trafficking conviction in the United States, the Immigration Judge clearly erred in assigning significant weight to the expert’s opinion without reasonably considering the apparent deficient underlying factual basis.”

The BIA concluded that “[t]he general evidence of China’s harsh penalties for individuals convicted of drug trafficking crimes committed in China and the use of torture in Chinese prisons is insufficient to establish that the respondent will more likely than not be detained and tortured, extralegally or otherwise, based on his drug trafficking conviction in the United States.“

The full text of Matter of G-M-I- can be found here:

https://www.justice.gov/eoir/media/1426556/dl?inline

First Circuit Reverses Agency for Discrediting Expert

The First Circuit has remanded a CAT claim in which the agency discredited an expert’s opinion without sufficient reason.

The full text of G.P. v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-2002U-01A.pdf

BIA Defines Role of Expert Testimony

The Board of Immigration Appeals has determined that when an Immigration Judge finds an expert to be a credible witness, it does not follow that the Immigration Judge must accept all the testimony and opinions provided as facts. “That said, when the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.”

The full text of Matter of M-A-M-Z- can be found here:

https://www.justice.gov/eoir/page/file/1346661/download

Ninth Circuit Reverses Agency Rejection of Expert Witness

The Ninth Circuit has reversed the agency’s rejection of expert witness testimony in a Convention Against Torture case. “If the Board rejects expert testimony, it must state ‘in the record why the testimony was insufficient to establish the probability of torture.’ Improperly rejected expert testimony is a legal error and, thus, per se reversible.” The court also rejected the agency’s assertion that the expert witness’ testimony should be accorded less weight because it was not corroborated by other documents in the record. “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”

The full text of Castillo v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/18/19-72745.pdf

BIA Clarifies Standards for Expert Witnesses

The Board of Immigration Appeals has determined that “a key purpose of qualifying a witness as an expert is to provide a framework for the Immigration Judge to evaluate the evidence. 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.” “To be reliable, an expert’s testimony must be ‘based on sufficient facts or data’ that the expert ‘has been made aware of or personally observed’ or from sources that ‘experts in the particular field would reasonably rely on.’” “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.”

The full text of Matter of J-G-T- can be found here:

https://www.justice.gov/eoir/page/file/1319951/download