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Bloggings On Political Asylum

by Jason Dzubow

Pleading the Fifth

The Fifth Amendment: It's not just for baseball players, Solyndra executives, and comedians.

I objected to the question on the basis that the witness was unrepresented, and if he testified about paying for a smuggler, his testimony could be used against him in a criminal prosecution (not to mention a removal proceeding).  After my objection, the IJ instructed the witness about his rights under the Fifth Amendment and the witness chose to invoke his right against self incrimination.  Probably a smart move.

The situation raises a few issues.  For one, what is the attorney’s obligation to protect the witness?  I certainly could have allowed the witness to answer DHS’s question.  The witness did not know that he might face prosecution for helping his friend enter the U.S. illegally; nor did he know about his Fifth Amendment right.  In this case, there was no conflict between my client’s interests and the witness’s, and so objecting was clearly the right thing to do.  But what if the witness’s testimony would have helped my client, but harmed the witness? Perhaps I would be obliged to allow the witness to testify in order to help my client (I have a duty to my client, but not to the witness).  I suppose this points to the need for witnesses to have their own attorneys in court, but as a practical matter, I imagine that is pretty unlikely.  

Another issue is the Immigration Judge’s obligation in this situation.  A quick review of the Immigration Judge Benchbook does not reveal any helpful guidance.  The Ethics  and Professional Guidelines are little better, though they do advise the IJ to “act in a professional manner towards all… witnesses.”  Based on this, one could argue that the IJ should inform a witness when he is entering dangerous territory.  To the extent that IJs are not obligated to notify witnesses of potentially self incriminating testimony, it seems to me that EOIR should create some guidance on this point to protect witnesses in Immigration Court.     

Finally, does the DHS attorney have any obligation to the alien?  The only other time a Fifth Amendment issue came up in one of my cases, I was questioning a witness and the DHS attorney pointed out that the witness’s answer might incriminate him (and no, I was not purposely out to get the witness; I didn’t realize that my question had potentially dangerous consequences).  DHS attorneys represent the government and should act justly.  However, sometimes there are good reasons to question a witness about issues that might incriminate him.  DHS attorneys need to balance their obligation to do justice with the need for information in the case.  I would argue that DHS attorneys should warn witnesses when they are asking questions that might incriminate them, but my guess is, most DHS attorneys would disagree with me.

As for my case, the Respondent was granted relief under the Torture Convention (a result we were not thrilled with, but it beats a denial) and the witness did not incriminate himself.  I guess that is mostly a happy ending.

Originally posted on the Asylumist: