I interviewed for the Department of Justice Honors Program during the fall semester of my 3L year. I lived in Washington, DC, for the semester and worked at the DOJ’s civil appellate division through their externship/internship program. The thick summer humidity had frozen into an unseasonably early winter snow storm. The day before the interview I watched as snow blanketed the capital.
As the first in my family to attend law school, I was already nervous about the interview process. Now this California native also feared navigating public transportation to the DC suburbs in my crisp suit during freezing temperatures. Thankfully the storm passed, the sun came out, and conversation flowed during my interview. I got the job!
Starting Out
I began my legal career as a Judicial Law Clerk (JLC) at the Los Angeles immigration court where I worked alongside talented legal writers and passionate grammar nerds. As a JLC I reviewed lengthy records of procedure, researched law, and drafted decisions and legal memoranda for immigration judges. I received excellent mentorship and generous edits to my writing from experienced judges and fellow JLCs. Given the high volume of cases—each one life-changing for the respondent and their family—the Honors Program provided an excellent opportunity to hone my legal writing, discuss complex cases with judges, and grow as a new attorney.
The Federal Rules of What Now?!
The Federal Rules of Evidence don’t really apply in immigration court. Before you turn your evidence casebook into a nice monitor stand for Zoom calls, the evidence rules do serve as guideposts and are used by counsel to argue whether to admit, exclude, or apply reduced weight to evidence. But as a basic rule, evidence is considered admissible in immigration court as long as it is relevant and fundamentally fair.
Consequently a wide range of evidence comes into play in any particular case. How does an adjudicator cut through the noise? Ideally the respondent is represented by counsel and both attorneys submit a brief citing the most relevant law and facts in the record. But just what are the most important facts or evidence in an immigration case?
Tell a Story, Grounded in Case Law
What I learned from my time in government and later in private practice is that most successful cases include a strong theory of the case and tell a narrative. Migration stories are human stories, and strong legal cases apply facts to law in a clear way.
Sometimes only a couple pieces of evidence make the difference in a case, and other times it may take a mountain of evidence and facts. It depends both on the type of question to be answered by the court and the quality of the evidence available. It can also be helpful to keep the standard of review for the appeals court in mind.
For example, in Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004), Anis Shokri Salama Malty (“Malty”) was a Coptic Christian from Egypt. He first applied for asylum in 1992, only to have his claim denied by the immigration judge in 1997. Malty recounted having suffered religious discrimination at school and in employment, and he testified that his family had received threatening phone calls from Islamic militants. In 2001 he filed a motion to reopen his asylum case based on changed circumstances — Egypt had deteriorated during the four years his case was pending. He filed general evidence about the worsening treatment of Christians in Egypt, and specific evidence about violence against his own family members. The agency denied his motion to reopen his asylum case, and he appealed that decision to the Ninth Circuit.
The Ninth Circuit focused on the quality of the new evidence. First, Malty submitted a new report from a non-governmental organization (NGO). The report described human rights abuses against large numbers of Egyptian Coptic Christians and systemic discrimination and violence against Christians by the government. Second, Malty submitted a new declaration detailing six violent attacks against his family members since his asylum hearing. The Ninth Circuit noted that, in comparison to the treatment Malty described at his original asylum hearing, the nature of these incidents was different. These two pieces of evidence, taken together, demonstrated that conditions had significantly changed for Coptic Christians in Egypt since Malty’s original asylum hearing.
Finally, the Ninth Circuit found that Malty did not need to submit more statements, presumably from family in Egypt, with his motion to reopen. The agency faulted Malty for not including these, but Malty was not presenting a full case for asylum in his motion. Instead, he only needed to focus on demonstrating that things had gotten really bad in his country such that he should be given another chance to ask for asylum. Two detailed pieces of evidence—one general to the religious group and one specific to his family—gave him that chance.
Another example is Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (2017) (en banc), a case that was heard en banc by the Ninth Circuit in 2017. Carlos Alberto Bringas-Rodriguez (“Bringas”) was a gay man from Mexico who was abused as a child on account of his sexual orientation. He sought asylum in the United States, which an immigraiton judge denied in part based on a conclusion that the evidence did not demonstrate that the Mexican government was unable or unwilling to protect Bringas from the private actors who harmed him.
The Ninth Circuit summarized facts from Bringas’ sworn affidavit and his testimony before the immigration judge. The en banc panel also looked to two U.S. Department of State Human Rights Reports for Mexico and numerous newspaper articles. As in Malty, the Court noted the quality of the general evidence of harm, highlighting the severity of the examples. Notably, the Ninth Circuit recognized increasing social acceptance in certain more cosmopolitan parts of Mexico. But this fact was most relevant to a future risk of harm, whereas Bringas sought asylum based on past harm inflicted upon him as a child.
The Ninth Circuit walked through the key parts of Bringas’ story, which was set into context by the newspaper articles and country conditions reports, and concluded that the record evidence compelled the conclusion that the Mexican government was unable or unwilling to control the people who persecuted Bringas. A compelling story and a mountain of evidence won the day.
The Shifting Landscape of Fact, Credibility, and Truth
Credibility determinations impact what facts in a story are considered true, and adjudicators make these determinations everyday. This term the Supreme Court heard two consolidated cases that focus on how courts make credibility determinations in immigration cases. Keep an eye out for decisions in Garland v. Dai and Garland v. Alcaraz-Enriquez because what is considered fact in immigration cases may shift again.
Throughout my time in the Honors Program I learned to build a case through storytelling, focusing on the key facts that would be most persuasive given the relevant precedent. Stay tuned for my next Clearbrief article where I dive into other aspects of writing a compelling brief in an immigration case.
