I finished my last asylum trial of the year earlier this month, and I almost lost the case, thanks to a witness who had flown in from Cameroon especially for the occasion.
I felt that our case was pretty strong–my client was a political activist who had been arrested several times in his country. The case was well documented, and my client seemed credible. Even the government attorney indicated that we should get it over with quickly–a sure sign that she anticipated a grant. Then, basically out of nowhere, the witness starts babbling about the time he and my client were arrested together in Cameroon. My client had never mentioned this arrest to me, nor had the witness told me about it during our preparation session. In Immigration Court, attorneys are not permitted to strangle their own witnesses, so there was nothing I could do but watch my case go down the drain. Fortunately, during re-direct, I was able to elicit some explanation from the witness. Then we had my client return to the stand to further clarify. In the end, the Judge granted relief, but a strong case was nearly sunk by a witness with a big mouth.
All this raises the question: Do the benefits of witnesses outweigh the risks? It’s a question I have thought a lot about. On the one hand, the REAL ID Act requires us to submit reasonably available evidence, so if a witness is available and we do not bring her to Court, the IJ could use that to support a denial. On the other hand, it is difficult to hold the respondent responsible for a witness who fails to appear, and a well-supported case will likely be granted even when there is no witness.
Nevertheless, I tend to bring witnesses to Court if I have them. For one thing (and perhaps this is naive), I feel a certain duty to present my case, for better or worse. If the IJ sees that we are presenting everything we have, and being as open as possible, I believe that we are more likely to win the case. Also, I feel it makes me a more credible lawyer, and thus helps my clients over the long run. In addition (and again, possibly naively), I believe I can usually prepare the witness for cross examination and anticipate questions that the DHS attorney might ask. When the respondent and her witness testify consistently about details of an event (especially when those details have not been presented previously in the written statements), it is strong evidence of their veracity. Finally, I tend to believe (maybe yet again naively) that my clients are telling me the truth when they describe the basis for their asylum claim. If the client is telling the truth, a well-prepared witness should only help the case. If the client is lying about his claim, and inconsistent testimony exposes the lie, the client really only has himself to blame.
Of course, even in a completely bona fide case, an ill-prepared or foolish witness can tank an asylum claim. That is why I am very wary of witnesses who can corroborate large tracts of a respondent’s story. The more the witness knows about a respondent’s story, the more opportunities exist for the DHS attorney (or the IJ) to ask detailed question about information not in the written statement and that we did not discuss during trial preparation (the idea is to ask questions that the witnesses are not prepared for, and then compare the answers to make sure the testimony is consistent). Such questions can be confusing to witnesses who–despite repeated reminders not to do so–sometimes guess at the answers. A better witness is a person with first-hand knowledge of one small part of the case. Such a person is less likely to face a broad range of questions from the DHS attorney.
Despite the risks, I feel that a well-prepared witness can go a long way towards winning an asylum case. I can think of several cases that were won by credible witnesses. Each case is different, and there are good arguments for avoiding the risks inherent in using a witness. Despite the risks, I will continue to favor the use of witnesses in my cases.
Originally published on the Asylumist: www.Asylumist.com.