Evidence rules in immigration proceeding

The government sought to remove an alien (a conditional permanent resident) because of his alleged participation in alien smuggling.

One issue: could the government rely on a hearsay statement from a witness who was unavailable because the government had deported her?

Although the rules of evidence are not applicable to immigration hearings, * * *, the constitutional and statutory guarantees of due process require that " 'the government's choice whether to produce a witness or to use a hearsay statement [not be] wholly unfettered.' "

Hernandez-Guadarrama v. Ashcroft, 394 F. 3d 674, 682 (9th Cir. Jan. 10, 2005) (citations omitted) Find Result - 394 F.3d 674.

Here, the government made no effort to produce the declarant. In any event, her affidavit was unreliable and, standing alone, could not prove removability.

Categories: hearsay, immigration, cases