On November 23, 2015, the Board of Immigration Appeals (BIA or Board) vacated a decision of the Immigration Judge (IJ) denying a 15 year-old’s request for withholding of removal and CAT relief, remanded the record to the Immigration Court, and ordered assignment to a new IJ. When respondent’s attorney had attempted to question him in court on how his experiences in Guatemala (extortion of his family, threats to kill him and his relatives, assault by armed men) had affected him in terms of “psychological issues” such as nightmares, the IJ initially insisted on qualifying the boy as an expert witness, asking if he had ever “lectured on a professional level on psychology”. Despite counsel’s objections that he wasn’t trying to qualify respondent as an expert, the IJ refused to allow the boy “to testify as to vague psychological problems”, claiming he could only testify as a lay witness and could not be asked about the psychological impact of his experiences.
In its opinion, the BIA concluded the IJ erred in suggesting the boy needed to be qualified as an expert, explaining that under the Federal Rules of Evidence (FRE), a lay witness cannot give an opinion based on scientific or specialized knowledge. However, the FRE is not binding in immigration proceedings where the proper test of admissibility is whether the evidence is probative and its admission fundamentally fair. When respondent had personal knowledge of the matters addressed and was not offering opinion testimony, this test was met.
More significantly, the Board held that the IJ’s treatment of respondent could not be condoned, stating that conduct by the IJ which can be perceived as bullying or hostile can have a chilling effect on testimony and this limit the court’s ability to fully develop the facts. The BIA added that such behavior creates the appearance the IJ is not a neutral fact-finder and raises questions whether respondent received a full and fair hearing. Because the hearing was not conducted in a manner that meets the expected standards, the IJ’s decision was vacated and the record remanded to a new IJ to ensure fairness and the appearance of impartiality. Matter of Y-S_L-C- 26 I.&N. Dec. 688 (BIA 2015).
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