The BIA’s recent decision in Matter of D-R- also had an interesting analysis of the weight of expert testimony in removal proceedings.

Typically experts tend to be called by immigrants seeking to prove to the courts what conditions in their home country are like.  The BIA has previously held that such testimony is insufficient, for example, to rebut a State Department country report.  Matter of C-C-, 23 I&N Dec. 899, 902 (BIA 2006).

Now the Board has taken the opportunity to remark on the weight of an expert introduced by the government and what qualifications a person must have to testify as an expert.

“An expert witness is broadly defined as someone who is ‘qualified as an expert by knowledge, skill, experience, training, or education.’ Fed. R. Evid. 702; see also Thomas v. Newton Int’l Enterprises, 42 F.3d 1266, 1269 (9th Cir. 1994). An expert has ‘scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue.’ Fed. R. Evid. 702; see also Matter of Marcal Neto, 25 I&N Dec. 169, 176 (BIA 2010) (stating that Immigration Judges may rely on experts “regarding matters on which they possess little or no knowledge or substantive expertise”). Butler was clearly qualified to testify as an expert on military operations during the Bosnian War.”

Matter of D-R-, 25 I&N Dec. 445 (BIA 2011).

While the BIA’s holding isn’t too controversial, the Board’s analysis was based heavily on the Federal Rules of Evidence.  And, as the Board has repeatedly said, the Federal Rules of Evidence simply don’t apply to removal proceedings.  Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986); Matter of Grijalva, 19 I&N Dec. 713, 721-22 (BIA 1988).

If the federal rules of evidence don’t apply in Immigration Court, then how do they form the basis for the admission of expert testimony?

one possibility is that the rules apply when the BIA wants them to and they do not apply when they don’t.  Or, it could be that the Board is choosing to be guided by the rules in a limited way – only when it comes to expert testimony.

The Board cited Federal Rule of Evidence 702 in Matter of V-K-, 24 I. & N. Dec. 500 (BIA 2008) to dismiss an expert’s factual conclusion that an immigrant was likely to be tortured if deported.  This piecemeal treatment of the rules of evidence is far from fair, as the Board’s use of the rules has in each case been to the detriment of the respondent, and its dismissal of the rules is typically also to the detriment of the respondent, as was the case is Grijalva and Velasquez.