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St. Louis Removal & Deportation Attorney Jim Hacking on 7th Circuit Decision about Hearsay in Deportation Cases

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An immigration judge denied an alien her rights to due process when the court allowed two pieces of hearsay documents to be used in the woman's deportation proceedings, according to a recent decision by the Seventh Circuit Court of Appeals in Chicago, Illinois.  In the case of Pouhova v. Holder, the appellate court reviewed the propriety of admitting two documents:

  • a statement taken from a woman who allegedly tried to enter the U.S. using Ms. Pouhova's Bulgarian passport; and,
  • a DHS inspector's report of his conversation with the woman prepared 7 years after it occurred.

The court acknowledged that the Federal Rules of Evidence do not apply in deportation hearings; however, the court felt that there were "substantial reasons why both documents are not reliable and should not have been used without Pouhova's having an opportunity to cross-examine the declarant or author."

The statement from the woman who purportedly tried to use Ms. Pouhova's Bulgarian passport was unreliable because it was obtained without an interpreter and because the woman never appeared at the deportation proceeding.  The DHS inspector's report was not reliable because more than 7 years had passed between the time of the incident and the deportation hearing.

The court noted that aliens in removal proceedings do have due process rights, which includes the requirement that evidence introduced must be probative, and its admission "fundamentally fair."  The fairness of a piece of evidence depends on its reliability.

On appeal, the court reversed the decision to deport Ms. Pouhova and ordered a new deportation hearing.  This is a good decision for aliens and reminds us that even in deportation proceedings, you have the right to confront the "witnesses" against you.  It will be interesting to see what happens on remand as the government may be able to locate the missing witnesses and provide their testimony live and in person.

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