(5) POLICY: No Standards for Evidence in Administrative Proceedings


Although USCIS is tasked with holding proceedings which involve immigration-related crimes, because those proceedings are held administratively, the Federal Rules of Evidence to not apply. Therefore hearsay is admissible and the only test for admission of evidence is whether the evidence is “probative and its admission is fundamentally fair.”Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003).

Therefore, USCIS is holding immigration proceedings involving:

  • A determination which construes the rights and liabilities of I-864 contract holders;
  • Construes the legitimacy of the relationship between a sponsor/spouse and the alien;
  • Determines whether the sponsor/spouse engaged in any unlawful acts or abuse;

And, denying the Sponsor/Spouse the ability to participate at all within the proceeding while allowing for the submission of anything produced by the alien and his/her attorney (or other individual/organization) without any real standards for evidence.

National Security:

Aliens are granted full reign to produce anything as a form of evidence, including unprofessional opinions and hearsay, all of which goes unverified and un-challenged by the subject of the information. Aliens and their attorneys are well aware of this policy and take advantage of it knowing that their fraud will go uncovered. Fraud is rampant within DHS, and these policies are what shield aliens from the detection of that fraud.

Aliens who have already engaged in abuse and/or fraud, are then encouraged by loopholes like this to submit further fraudulent claims and engage in further abuse against their sponsor/spouse victims. The sponsor/spouse is denied any ability to defend himself/herself against the continued fraud and abuse, and DHS policies and failure to intervene or protect witnesses/victims/informants, allow this to continue. This is extremely harmful to the public and allows for those who wish to do the country harm, to enjoy legal status obtained through fraud.

Other Federal Agencies have adopted additional evidence rules as part of their proceedings. DHS should adopt further evidence rules which reflect the same standards set forth in criminal proceedings as DHS is in fact holding a criminal administrative proceeding.

Other Legal Issues:

Dent v. Holder, 627 F.3d 365, 373 (9th Cir. 2010); Hammad v. Holder, 603 F.3d 536, 545 (9th Cir. 2010) (explaining that although the rules of evidence are not applicable to immigration hearings, proceeding must be conducted in accordance with due process standards of fundamental fairness)

As previously discussed in Policy 1 document and outlined by 8 U.S. Code 1186a, DHS is failing to inform all parties (ie. Spouse/Sponsor) of the opening of a proceeding. DHS goes further to deny sponsors/spouses any ability to intervene or participate in the proceeding when the sponsor/spouse requests to do so. Yet, the very proceeding at hand makes a determination which ultimately establishes whether the sponsor will be forced into the I-864 contract or relieved of all liability, construes the legitimacy of the sponsors/spouses relationship she/he has or had with the alien, and determines whether the sponsor/spouse engaged in any unlawful acts or abuse.  

Certainly, it is not fundamentally fair that anything be provided to USCIS, while the subject of such statements or allegations be denied any ability to review or refute the allegations about them.

The Supreme Court has explained that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg, 397 U.S. at 269, 90 S. Ct. 1011. An opportunity to confront and cross examine “ ‘is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.’ ” Id. at 269–70, 90 S. Ct. 1011 (quoting Greene v. McElroy, 360 U.S. 474, 496–97, 79 S. Ct. 1400, 3 L.Ed.2d 1377 (1959)).

Aliens who may face deportation, have often times lashed out against the spouse/sponsor who informed DHS or had the ability to inform DHS of the fraud committed against him/her. Acting out of malice, the alien files waivers and submits arguments which are aimed at destroying the spouse/sponsors credibility most often through false allegations of vawa abuse or neglect.

Non-profit organizations catering to immigrant communities, often times take part in those cases by providing supporting documents for the alien to submit as “evidence” within the immigration proceeding. Those non-profit organizations have generally had no contact with the spouse/sponsor and have no ability to determine whether the claims made to the organization are true, or who the “real abuser” is. The organization then submits hearsay evidence which is accepted by DHS.

DHS is clearly violating spouse/sponsor Constitutional Due Process Rights, by allowing ANY evidence produced by an alien, attorney or other individual or organization, motivated by malice, vindictiveness, intolerance, and prejudice, while denying the spouse/sponsor an opportunity to confront and cross-examine those witnesses.