26 I. & N. Dec. 688
BIA2015Background
- Respondent: a 15-year-old Guatemalan who arrived in the U.S. in 2014 after repeated gang extortion, threats, sightings of corpses, and family killings; mother in the U.S. arranged his entry after he was personally threatened.
- At IJ hearing respondent’s counsel attempted to elicit whether respondent experienced nightmares or psychological effects from trauma.
- The Immigration Judge interrupted, suggested the respondent must be qualified as an expert, and limited questions about "psychological impact," offering to qualify him only if counsel stipulated lack of professional training.
- The IJ did not dispute the respondent’s credibility or that the events occurred, and a psychological report diagnosing PTSD by a licensed Master Social Worker was in the record but not referenced by the IJ.
- BIA concluded the IJ erred by treating testimony about personal experiences as requiring expert qualification and found the IJ’s demeanor belittling and inappropriate given the respondent’s age and history; BIA vacated and remanded for rehearing before a different IJ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a respondent’s testimony about personal psychological symptoms requires expert qualification | Respondent: testimony about nightmares and personal reactions is lay testimony based on personal knowledge | DHS/IJ: such testimony implicates psychological opinions needing expert qualification | BIA: testimony about personal experiences is lay testimony; Fed. R. Evid. expert rules inapplicable here and testimony was admissible |
| Whether the Federal Rules of Evidence govern admissibility of lay/opinion testimony in immigration proceedings | Respondent: Rules are not binding but illustrative; personal-knowledge testimony is admissible | IJ: invoked expert/lay opinion distinctions from Fed. R. Evid. to restrict testimony | BIA: FRE not binding in immigration proceedings; admissibility judged by probative value and fundamental fairness; FRE may guide but did not bar this testimony |
| Whether the IJ’s conduct (tone and questioning) was acceptable | Respondent: IJ’s behavior was belittling and chilling, especially for a minor | DHS: opposed appeal (implicitly defending IJ’s decision) | BIA: IJ’s conduct was inappropriate and could be perceived as hostile/bullying; vacated decision and remanded for new IJ to preserve fairness and appearance of impartiality |
| Remedy required where IJ’s demeanor creates appearance of bias or denies fair hearing | Respondent: case should be reassigned for rehearing | DHS: opposed appeal/remand | BIA: vacated IJ decision and remanded for rehearing before a different IJ; parties may supplement record |
Key Cases Cited
- Cham v. Attorney General of U.S., 445 F.3d 683 (3d Cir. 2006) (respondent entitled to dignity, respect, courtesy, and fairness at immigration hearings)
- Wang v. Attorney General of U.S., 423 F.3d 260 (3d Cir. 2005) (IJ hostility can chill testimony and impair fact development)
- Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) (appearance of bias threatens full and fair hearing)
- Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (reassignment on remand appropriate when IJ’s conduct creates appearance of partiality)
- Ali v. Mukasey, 529 F.3d 478 (2d Cir. 2008) (reassign case when IJ’s conduct precludes meaningful review due to bias or hostility)
- United States v. Champion, 813 F.2d 1154 (11th Cir. 1987) (witness testimony about events based on personal knowledge is not opinion testimony)
- Felzcerek v. INS, 75 F.3d 112 (2d Cir. 1996) (admissibility under Federal Rules can support conclusion that evidence comports with due process)