On September 25, 2020, the Board of Immigration Appeals (BIA or Board) sustained in part a DHS appeal, remanding the record to the Immigration Judge (IJ) after hearing oral argument; in the matter below, the IJ had granted Respondent’s asylum application. A Mexican citizen, Respondent had claimed that, in college, he had been one of a group of students gathering evidence on foreign governments looking to launch cyberattacks against the U.S. At his professor’s request, he had “feigned a conversion to Islam, fostered a relationship with the Iranian Ambassador to Mexico, and secured an invitation from the Ambassador to attend a religious school in Iran.” Once in Iran to attend the school, he intended to develop relationships with Iranian officials and make clandestine recordings of Iran’s suspected cyberwarfare efforts. He discovered the school was, in effect, a terrorist indoctrination center for Latin American students but he attracted unwanted attention and his secret recording devices were found. Accused of being a spy and fearing for his life, Respondent fled to the Mexican Embassy; fearing that Iranian agents would pursue him home to Mexico, he attempted to enter the U.S.
Respondent and his mother testified, as did a witness who provided “background knowledge and context for his claim”; this witness is a national security consultant/analyst who focuses on issues regarding Latin American, Iran, and transnational organized crime. Respondent also submitted news articles about his activities in Iran. The IJ granted Respondent’s asylum application, stating that he gave “significant weight” to the consultant’s testimony that Iran would seek to punish Respondent for spying and credited “the witness’s claim that the Mexican Government lacks the ability to protect the respondent from harm.”
On appeal, DHS did not challenge Respondent’s credibility or the truth of his claim but contended that the IJ’s reliance on the consultant’s testimony and his conclusion that Respondent established a “well-founded fear of persecution from Iran in Mexico” was error. DHS argued that, because of concerns regarding the analyst’s expertise, the IJ erred by not qualifying him as an expert before considering his testimony.
In its initial analysis, after noting that the IJ had held that Respondent had established that his imputed political opinion would be “at least one central reason” for his well-founded fear of persecution – although he denied asylum based on religion or membership in a particular social group – the BIA set forth the 2 “key substantive issues in dispute”: 1) whether the Iranian government has the ability to harm Respondent in Mexico and 2) whether the Mexican Government is unable or unwilling to protect Respondent from Iranian operatives. In this regard, it was “unclear” to the Board whether Respondent’s witness had the relevant expertise to opine on the 2 questions.
On the one hand, stated the decision, IJs have long relied on expert testimony to help make factual determinations on matters about which the court possesses little or no knowledge or expertise; as such, qualifying a witness as an expert provides an IJ with a “framework” to evaluate the evidence. Thus, in assessing whether to allow a witness to testify as an expert, an IJ should consider whether it is sufficiently relevant and reliable for the expert to offer “an informed opinion.” Additionally, an IJ has broad discretion to conduct and control immigration proceedings and to admit and consider relevant and probative testimony.
On the other hand, found the opinion, here, the IJ did not allow DHS to voir dire the consultant before he testified, although he gave counsel the chance to challenge his qualifications on rebuttal “both during cross-examination and in written closing argument.” And while the Board acknowledged that it was within the IJ’s authority to do so, it also concluded that “it is a better and more efficient practice to allow the parties to question the proposed expert about his or her expertise before substantive testimony is offered”, if such a request is made. This would have allowed both sides to establish the parameters of the witness’s testimony to limit and focus on the specifics issues within his expertise. DHS counsel had objected to the scope of the analyst’s testimony after he admitted on direct exam that Iran’s extra-territorial assassinations were not his “full area of expertise.” Yet, stated the Board, the IJ found the witness possessed “a wealth of background knowledge” without making any specific findings as to his expertise regarding the issues in dispute.
Taking a more restrictive view, the BIA explained that an IJ should only find an expert’s opinion to be persuasive “if there is a reliable factual or evidentiary basis for his or her conclusions.” Yet here, the IJ had not reasonably considered whether the witness’s opinion had “a sufficient factual basis” to establish Respondent’s claim. Nor had he made a finding of a reliable factual or evidentiary basis for the opinion such that it supported the IJ’s conclusion that the testimony was so persuasive as to deserve “significant weight”; without such a finding, the Board stated, it cannot exercise its de novo review of the IJ’s holding that the Respondent, in fact, met his burden of proof to establish asylum eligibility.
Further, found the decision, the IJ failed to address the issues raised by DHS as to the greater weight given to the consultant’s testimony compared to other evidence submitted. A factual basis for the opinion is especially important here because it is inconsistent with the State Department country reports of record. (The witness testified that Hezbollah works with Mexican drug cartels in Mexico but the 2016 Country Reports on Terrorism found “no known international terrorist organizations operating in Mexico.”) The Board concluded that the IJ had not addressed the State Department reports, other than to state that the witness’s testimony was not rebutted by DHS; such a “general statement” is insufficient to explain why his testimony was more reliable than State’s reports.
The BIA thus held that, in assessing whether to admit the testimony of a witness as an expert, an IJ should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion, and if it is admitted, the IJ should then consider how much weight the testimony should receive. If a party challenges the expert’s qualifications, it is generally best to allow the party to voir dire the witness before the testimony is presented in full. As to how much weight to give an expert’s testimony, an IJ must assess how probative and persuasive it is regarding the key issues in dispute for which the testimony was offered. If there is contradictory evidence in the record, the IJ should explain why the expert’s inferences are reasonable and more persuasive than other evidence.
Remand is therefore necessary, held the Board, for the IJ to make specific findings as to the scope of the witness’s expertise regarding the key issues and whether there is evidence supporting his opinions. The IJ must also explain why he finds the analyst’s testimony more persuasive than other inconsistent evidence. The appeal was sustained in part and the record remanded for further proceedings. Matter of J-G-T-, 28 I&N Dec. 97 (BIA 2020).
