A colleague asked me about the rules of court, regarding evidence in immigration proceedings. I thought I would share the answer here:
I have a CAT only IH coming up. I want to introduce a news article that I feel is relevant. Can I refer to the article in my opening statement?
Sure you can! You need to submit the article, and any other evidence you want to use, 15 days in advance — unless for good cause you can’t do that. At the beginning of the hearing, the judge will review the evidence, and admit/deny as appropriate (almost always admit in CAT – it becomes a question of weight, not admissibility). In a state or federal court, the opening statement is limited to facts. However, if you had a pre-trial exchange of exhibits, you could certainly cite to a “fact” in your exhibits, too. You would do that (and in immigration court, too!) by saying something like this:“Not only will my client testify that giant green elephants are the cause of his fear, the evidence will show that as of 31 February 2016 (date of the article), the citizens of Ubuland are afraid of the government, and believe that they will all be killed by the green elephants with the governments agreement or even assistance.”. In state or federal court, you need to lay a foundation and provide authentication for evidence, before it can be admitted. Usually, you can file a motion in limine regarding certain documents, such as newspaper articles, in order to have the Court recognize the authenticity and foundation of new print prior to trial. That is not required in immigration court.
In an immigration context, you can even bring in hearsay in the opening, closing, and throughout the trial.