Sometimes a foreign national who is in removal proceedings may benefit from the testimony of a witness who can support their position. The witness should be someone who can behave professionally in court and can provide testimony that is material to your case and consistent with your own testimony. They should appear credible to a judge and respond confidently if the judge or the government attorney asks them questions that seem to challenge their statements. A witness who does not know much about your situation or who feels awkward in this setting may undermine your case. You should carefully evaluate a potential witness before asking them to testify for you, and you should help them prepare for the courtroom.
The most common type of witness is a material or corroborating witness. This is someone who knows about a certain aspect of your case and can strengthen your testimony. They may be especially helpful if a foreign national is seeking cancellation of removal or asylum. In a cancellation of removal case, a witness can testify about your good moral character. In an asylum case, a witness can support your argument that you fear persecution in your home country by testifying about conditions in your home country for people like you. A witness also can testify that you are telling the truth about your membership in a certain group and about past persecution that you have suffered.
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An immigration attorney may be able to help a foreign national and their witness prepare to testify and respond to the judge and the government attorney’s questions. Justia offers a lawyer directory to simplify researching, comparing, and contacting attorneys who fit your legal needs.
Expert Witnesses in Immigration Court
In addition to witnesses who can support your testimony, you may want to introduce expert witnesses who can provide special insights on matters related to your case. They might be able to tell the judge about the conditions in your home country and describe the likelihood of change, or they might be able to describe certain features of your group to a judge. Often, a judge will be persuaded by testimony from someone such as a professor, who has no personal stake in the case.
If you have a medical condition, or if you are arguing that your removal would cause an extreme hardship to a U.S. citizen child with a medical condition, a doctor or psychiatrist might testify about the medical condition and the lack of care available for it in your home country. If you are seeking immigration relief based on torture in your home country, a doctor might confirm that your scars or symptoms are consistent with torture. Or they might help explain gaps in your testimony by presenting evidence that they may have resulted from post-traumatic stress disorder or another psychological condition.
You will need to provide your witness list to the immigration court and the government before the date set by the judge during the Master Calendar hearing in your case. You should include any witness who might testify, even if you are not certain whether they will. A witness is not required to testify at the hearing just because they appear on the list.
If an expert witness may testify, their resume or CV should be attached to the witness list.
On the witness list, you should provide the name of each witness and their relationship to you, in addition to any title that they may have. Each entry on the list also should provide a brief description of the type of testimony that the witness will offer and how it relates to the case. If you will be using expert testimony, you should provide the qualifications of the expert witness.
Testifying by Telephone
If a witness cannot appear in person at the hearing, you can ask the court to permit them to testify by telephone. You will need to submit this motion to the court and serve it on the government attorney at least 10 days before the hearing. If you submit the motion well before the hearing, and it is denied, you can ask the witness to submit an affidavit on your behalf if they still cannot attend the hearing. The affidavit will contain sworn statements regarding the same subject matter on which they would have testified.
However, the immigration judge probably will approve this type of motion for an expert witness or for a material witness who does not live in the area or cannot travel easily. You should make sure to explain why the witness is unable to attend.