Discovery is limited in removal proceedings, but it is not completely unavailable. The Ninth Circuit’s decision in Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) was a giant victory in favor of obtaining documents in the possession of the Department of Homeland Security (“DHS”). A request under Dent directed to the DHS should result in a copy of the immigrant’s “alien file.” Requests under the Freedom of Information Act (FOIA) should also be made to obtain any records in the possession of other agencies. But if the documents or testimony you seek are not located in the “alien file” then it may be wise to consider what options you have at discovery. Because discovery is not always permitted, the parties have to ask the court for permission before taking discovery. For this reason, it is helpful to plan out any potential discovery early in the proceedings to make sure you have time to submit written requests for discovery from the court.
The regulations permit testimonial depositions (sometimes called de bene esse depositions) “[i]f an Immigration Judge is satisfied that a witness is not reasonably available at the place of hearing and that said witness’ testimony or other evidence is essential.” 8 C.F.R. 1003.35(a); 8 CFR § 1240.7(c). In In re Gazdikova, 2008 WL 2401071 (BIA 2008), the Board held that the a request for a continuance due to unavailability of a witness was properly denied, because the immigrant could have taken the witness’s deposition prior to the hearing.
Subpoenas for the Production of Documents or Attendance of Witnesses
Unlike the broad powers given to attorneys in federal court under FRCP 45, Immigration Judges have the sole authority to issues subpoenas in removal proceedings “for the attendance of witnesses or for the production of books, papers and other documentary evidence.” 8 C.F.R. 1003.35(b). A request for a subpoena can be made orally or in writing but must state what the party expects to prove and show that the party has made diligent efforts to produce them without a subpoena.
Interrogatories and Requests for Admission
It is unclear whether interrogatories will be permitted, but they may be requested. In Matter of Exilus, 18 I. & N. Dec. 276 (BIA 1982), the Board held that an asylum applicant was not denied due process when she was not permitted to submit Interrogatories to the State Department. But the BIA based its decision significantly on the burden that would befall the State Department in having to answer interrogatories. A similar burden might not exist with other types of witnesses. The Board has never said that interrogatories are never permitted. In fact, in Matter of Ponco, 15 I. & N. Dec. 120 (BIA 1974), the Board said “[t]he respondent’s counsel could have requested cross-examination through the use of written interrogatories.”