UPDATE: ASYLUM LAW: A NOTABLE VICTORY
UPDATE: On November 21, 2017 the Immigration Judge in Hartford – who had previously ordered my clients from the Democratic Republic of Congo removed (deported) twice – responded to the Board of Immigration Appeals reversal of his most recent orders of removal by signing orders granting asylum to both of them. The Department of Homeland Security did not take an appeal. For the details, see below.
For the past 10 years I have been representing a married couple from the Democratic Republic of Congo (DRC) – one of the most repressive and brutal regimes on Earth – in claims of asylum before an immigration judge in Hartford, Connecticut. The couple were separated in DRC and separately made their way to the United States to claim asylum.
TWO KEY POINTS OF EVIDENCE: FINGERPRINTS AND THE NEWSPAPER
FINGERPRINTS
The immigration judge ordered both of my clients removed in April 2010 because he believed Department of Homeland Security (DHS) "evidence" that the husband attempted to enter the United States earlier than he claimed, and that a fingerprint "probable match," from an encounter along the US Canadian border "proved it." This "evidence" he said showed that both my clients were lying about the underlying facts of their claims.
To rebut the "fingerprint evidence" we put on expert evidence that a "probable match" of fingerprints is not an actual match, and that in fact the husband had an identical twin whose whereabouts were unknown at the time of the encounter along the US Canadian border.
THE NEWSPAPER
The immigration judge also chose to ignore an article from one of the leading newspapers in DRC picturing the wife client after she had been assaulted by DRC soldiers. The article described her horrific injuries, both physical and emotional. According to the immigration judge, the paper was not "genuine" because he did not like the texture and color of some of the pages. However there was no forensic evidence proving that the newspaper article was fraudulent. I argued that the judge's rejection of the newspaper was pure speculation.
THE TWO APPEALS
The first appeal made its way all the way to the Second Circuit Court of Appeals in New York City. There in January 2014 the Court ruled that a simple "probable match" of fingerprints was not sufficient legally. The Court also found that there was no real factual basis for the immigration judge questioning the authenticity of the newspaper article.
After the case ultimately returned to the immigration judge, in December 2015 he again ruled against my clients, essentially for reasons similar to those he came up with the first time, but with "different" legal theories. This required me to take a second appeal to the Board of Immigration Appeals (BIA), the last stop before one appeals to federal court.
In July of this year the BIA rejected all of the immigration judge's arguments, and concluded that each evidentiary finding he made was "clearly erroneous." This is a pretty heavy burden to meet on appeal but we were successful.
TWO LESSONS LEARNED
FINGERPRINTS. There must be a true "match" for "fingerprint evidence" to mean anything. Although the rules of evidence are relaxed in immigration court, a "probable match" isn't good enough, especially where the client has a plausible explanation for what happened.
NEWSPAPERS AND DOCUMENT AUTHENTICITY. An immigration judge must have a good reason for rejecting documentary evidence submitted by an asylum claimant. It simply is not enough for the judge not to like the "look" of the document, especially where the government offers no evidence disputing the document's authenticity.
THE CASE CONTINUES. I am scheduled to appear before this immigration judge again with my clients in November 2017. Stay tuned.
Brian D. O'Neill Attorney at Law, LLC
Immigration, Employment and Business Law
