When a government witness testifies at Immigration Court, it is difficult to maintain control of the proceedings as counsel for the immigrant.
There is a common concern that testimony from government witnesses is given extra weight and that attempts to impeach a civil servant can backfire, given that the Immigration Judge and the DHS counsel are also civil servants. It doesn’t help that these witnesses are also often called as surprise “rebuttal” witnesses giving the immigrant and counsel no time to prepare.
But there are secret weapons you can use to try to level the playing field. One of those is the Jencks Act.
The Jencks Act, 18 U.S.C. § 3500, requires the Government, on the defendant’s motion, to produce any “statement” of a “witness called by the United States.” Matter of R-S-J-, 22 I. & N. Dec. 863, 885 (BIA 1999). The term “statement” includes the witness’s signed or adopted written statement, a “substantially verbatim” recording or transcription of the witness’s oral statement, or any testimony the witness has given to a grand jury. Id. The Board has specifically held that the Jencks Act applies to removal proceedings. Matter of C-, 8 I. & N. Dec. 696 (BIA 1960).
So, how does this help you? Simple. If a government witness is called at your hearing, begin your cross examination by asking about documents they used to prepare their testimony and then request that the judge order the production of those documents.
The “statement” producible under the Jencks Act even includes documents that would normally be considered “work product” including the government lawyer’s notes if they have been adopted and approved by the witness. Goldberg v. U. S., 425 U.S. 94, 101-02, 96 S. Ct. 1338, 1343-44, 47 L. Ed. 2d 603 (1976). And as the Supreme Court held in Jencks v. United States, 353 U.S. 657, 672, 77 S. Ct. 1007, 1015, 1 L. Ed. 2d 1103 (1957), if the government elects not to produce these statements, the result should be dismissal of the case outright.
Just keep in mind that you have to ask for these documents and typically must do so prior to the completion of counsel’s cross-examination of them. Matter of L-, 9 I. & N. Dec. 14, 28 (BIA 1960). And because cross examination of the witness will require actually reviewing the prior statements, a Jencks Act request can be a proper basis for seeking a continuance.