Kiareldeen (D.N.J. 1999): Excluding Hearsay Evidence From Immigration Court

Looking through recent cases, the decision in October 1999 by the federal district court of the District of New Jersey in Kiareldeen v. Reno, 71 F. Supp. 2d 402, Civ. No. 99-3925 (D.N.J. 1999) emphasizes the Constitutional right of an immigrant to confront his accusers in immigration court.

The context in the case was a bond hearing in immigration court where the immigrant was not given a right to see, examine, or conduct cross-examination on secret evidence.

Even though the Federal Rules of Evidence do not apply in immigration court, immigrants can argue that the proceedings violate their due process rights under the Constitution because it frustrates the right to confront one's accusers. Reviewing circuit court cases, the district court concluded that for due process purposes, hearsay evidence can be used if it is probative, fundamentally fair, and the government has made a reasonable effort to bring the witnesses it is relying on to court for cross-examination.

Courts have often approved of proceedings that relied on hearsay evidence when the government proved that it made repeated and diligent attempts to bring the witness to court, even if those attempts proved unsuccessful. Dallo v. INS, 765 F.2d 581 (6th Cir. 1985) (approving BIA reliance on affidavit of immigrant's ex-wife where INS subpoenaed affiant three times and sent investigator to affiant's parents' home, and where immigration judge personally telephoned affiant's home).

Courts have overturned rulings in proceedings that used hearsay evidence when the government does not demonstrate any effort to bring the witness to court or reveals that its efforts were half-hearted. liza, 709 F.2d at 1234 (finding "troubling" due process violation when government made no effort to locate witness before deportation hearing, despite government's submission of unsigned note by investigator stating that he could not locate affiant at her last known address); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (prohibiting reliance on affidavit of Spanish speaker that was taken in English by INS agents, where immigration judge prohibited cross-examination of agents regarding their fluency in Spanish); Saidane, 129 F.3d at 1065-66 (barring use of hearsay affidavit when the INS improperly attempted to shift the burden to produce witness onto alien, and where INS attorney told immigration judge that "I have not seen fit to use [affiant] as a witness because I don't think it is material to the issues now raised in this case.")

A court determining the reliability of hearsay evidence must consider whether the hearsay allegations have been corroborated by other government evidence, and whether the immigrant has produced evidence that rebuts the government's allegations. See, e.g., Felzcerek, 75 F.3d at 117; Matter of Devera, 16 I&N Dec. 266, 270 (BIA 1977) (affirming reliance on affidavit where the allegations were corroborated by the testimony of other government witnesses, and the affidavit appeared to fit within exception to hearsay rule; but expressly reserving judgment as to whether "a finding based primarily upon judicially inadmissible evidence would comport with the requirements of fundamental fairness.")

Ultimately, hearsay evidence offered by the government in immigration proceedings must be tested for reliability and trustworthiness. Felzcerek, 75 F.3d at 114.

In the case, the district court overturned the immigration court's ruling in the bond hearing because it relied on secret evidence and on hearsay evidence where they did not attempt to bring the witness to court to allow her to be cross-examined.

Although the case dealt with secret evidence, it seems that its principles should apply equally to any immigration court case.