J-G-T

Cite as 28 I&N Dec. 97 (BIA 2020) Interim Decision #3996

Matter of J-G-T-, Respondent

Decided September 25, 2020

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In assessing whether to admit the testimony of a witness as an expert, an Immigration

Judge should consider whether it is sufficiently relevant and reliable for the expert to

offer an informed opinion, and if it is admitted, the Immigration Judge should then

consider how much weight the testimony should receive.

(2) In considering how much weight to give an expert’s testimony, the Immigration Judge

should assess how probative and persuasive the testimony is regarding key issues in

dispute for which the testimony is being offered.

FOR RESPONDENT: Christian Gabriel Andreu-von Euw, San Diego, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Stephanie Groff, Assistant

Legal Advisor; Monica Mubaraki, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Appellate

Immigration Judges.

MALPHRUS, Appellate Immigration Judge:

In a decision dated November 17, 2017, an Immigration Judge granted

the respondent’s application for asylum under section 208(b)(1)(A) of the

Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(A) (2012). 1 The

Department of Homeland Security (“DHS”) has appealed from that decision.

The panel heard oral argument in this case. The DHS’s appeal will be

sustained in part, and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who sought admission

to the United States on May 26, 2011. In August 2011, the DHS initiated

removal proceedings, charging that the respondent is removable as an

1

The Immigration Judge did not address the respondent’s request for withholding of

removal or protection under the Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,

G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984)

(entered into force June 26, 1987; for the United States Apr. 18, 1988).

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immigrant who had no valid entry document at the time of his arrival. In a

hearing before the Immigration Judge, the respondent conceded removability

and filed an application for asylum, claiming that he feared persecution from

Iranian agents in Mexico.

The respondent claimed that after starting college in 2010, he began

working with a group of students for one of his professors. This group was

involved in an effort to gather evidence about the alleged activities of foreign

governments to launch cyberattacks against the United States. Although

most of the work involved transcribing secret recordings taken from the

various embassies in Mexico, the respondent became more deeply involved

with the project. At the behest of his professor, the respondent feigned a

conversion to Islam, fostered a relationship with the Iranian Ambassador to

Mexico, and secured an invitation from the Ambassador to attend a religious

school in Iran.

In early 2011, the respondent traveled to Iran under the pretense of

attending a religious school, but with the actual intent to develop additional

relationships with Iranian officials and make clandestine recordings of Iran’s

suspected cyberwarfare efforts. The respondent attended the school, which

he discovered was an indoctrination center for Latin American students

operated by an Iranian cleric, who was believed to be the architect of the

1994 bombing of the Argentine Israelite Mutual Association building in

Buenos Aries, Argentina. Eventually, he attracted unwanted attention, and

the devices he used to secretly record the religious leaders at the school were

discovered. The respondent was accused of being a spy. He feared for his

life, went to the Mexican Embassy, and fled from Iran. Because the

respondent believed that Iranian agents pursued him in Mexico and would

continue to do so, he fled to the United States.

In support of his application, the respondent and his mother testified

about his experiences in Iran and Mexico. In addition, the respondent

presented the testimony of a witness to provide background knowledge and

context for his claim. The witness is a national security consultant and

analyst whose focus is on issues relating to Latin America, Iran, and

transnational organized crime. The respondent’s evidence also included

news articles that referenced his activities in Iran.

In an oral decision, the Immigration Judge granted the respondent’s

application for asylum, finding that he established a well-founded fear of

persecution on account of his political opinion. 2 He determined that the

2

The Immigration Judge found that Iran’s “opposition to the respondent” was because of

his “attempt[] to investigate and invite admission of interest in possible politically

motivated cyberattacks, . . . ultimately exposing a school program which appeared to have

political goals beyond simply education regarding religion.” Based on these findings, the

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respondent and his mother were credible. The Immigration Judge

specifically said that he gave “significant weight” to the witness’s testimony

that Iran would seek to punish the respondent for spying in Iran because

“pro-Iranian regime actors,” such as Hezbollah and Mexican drug cartels,

would seek “to engage in potentially politically beneficial schemes,

especially if there was an added layer of plausible deniability, but without

always careful aforethought to the plan.” The Immigration Judge also

credited the witness’s claim that the Mexican Government lacks the ability

to protect the respondent from harm.

On appeal, the DHS does not dispute the respondent’s credibility or the

veracity of his claim. 3 Rather, it challenges the Immigration Judge’s reliance

on the witness’s testimony and his conclusion that the respondent established

a well-founded fear of persecution from Iran in Mexico. The DHS argues

that because of concerns regarding this witness’s expertise on the key issues

in the case, the Immigration Judge erred in not qualifying him as an expert

witness before considering his testimony. In addition, the DHS asserts that

the Immigration Judge erred in giving greater weight to the witness’s

testimony than to other evidence contained in the record.

II. ANALYSIS

An asylum applicant bears the burden of establishing eligibility for

asylum. Section 208(b)(1)(B) of the Act; 8 C.F.R. § 1208.13(a) (2020). To

meet this burden, the applicant must establish that he or she is a “refugee,”

or one who is unable or unwilling to return to the country of removal

“because of persecution or a well-founded fear of persecution on

Immigration Judge held that the respondent’s imputed political opinion would be “at least

one central reason” for any future harm. Section 208(b)(1)(B)(i) of the Act. The DHS did

not challenge the Immigration Judge’s findings regarding political opinion in its

supplemental brief or during oral argument. Given our disposition in this case and our

decision to remand, we need not further consider this issue at this time.

The Immigration Judge also determined that the respondent did not establish eligibility

for asylum based on his religion or his membership in a particular social group, namely the

group of students working for the professor. The respondent filed a cross-appeal from the

Immigration Judge’s decision denying his request for asylum based on his membership in

a particular social group, but he subsequently withdrew it.

3

The DHS has also not challenged the Immigration Judge’s conclusion that the

respondent does not present a national security risk to the United States. During the hearing,

the DHS submitted a report from the Federal Bureau of Investigation regarding the

respondent, which stated that it could not rule out the possibility that he poses such a threat.

However, the Immigration Judge found the respondent credible and specifically ruled that

he does not present a national security risk.

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account of race, religion, nationality, membership in a particular social

group, or political opinion.” Section 101(a)(42)(A) of the Act, 8 U.S.C.

§ 1101(a)(42)(A) (2018). In addition, the applicant must show that any

past or future harm was or will be inflicted by government officials or private

individuals the government was or is unable or unwilling to control. See

Matter of K-S-E-, 27 I&N Dec. 818, 823 (BIA 2020); see also Davila v. Barr,

968 F.3d 1136, 1141 (9th Cir. 2020).

The two key substantive issues in dispute regarding the respondent’s

eligibility for asylum are (1) whether the Iranian Government has the ability

to harm the respondent in Mexico, and (2) whether the Government of

Mexico is unable or unwilling to protect the respondent from Iranian

operatives. 4 The Immigration Judge relied extensively on the testimony of

the respondent’s witness to find that these elements were satisfied. However,

we cannot discern from the record if the Immigration Judge’s reliance on that

testimony was based on a reasoned consideration. In this regard, it is unclear

if the witness had the relevant expertise to opine on whether the Iranian

Government is able to engage in extra-territorial assassination efforts

in Mexico, and whether the Mexican Government has the ability and

willingness to protect the respondent from Iranian operatives.

As an initial matter, the Immigration Judge stated that “there is no such

thing as an expert witness” in immigration proceedings. However, the

Immigration Judge relied extensively on the testimony of the respondent’s

witness, presumably as a lay witness, to find that the respondent met his

burden to establish both of the disputed issues in this case. Moreover, the

Immigration Judge did not allow the DHS to voir dire the witness before he

provided his testimony, despite a request by the DHS based on concerns

regarding his expertise on key issues in the case.

Immigration Judges have long relied on expert testimony in immigration

proceedings to help them make factual determinations “regarding matters on

which they possess little or no knowledge or substantive expertise.” Matter

of Marcal Neto, 25 I&N Dec. 169, 176 (BIA 2010). 5 An expert is defined

“as someone who ‘is qualified as an expert by knowledge, skill, experience,

4

The respondent claims to fear harm, not from his own Government, but from Hezbollah

or the cartels in Mexico operating on behalf of or in support of the Government of Iran.

5

In fact, Federal courts have considered an alien’s right to present expert testimony to be

part of his or her statutory and due process rights to a fair hearing. See, e.g., Tassi v. Holder,

660 F.3d 710, 721–22 (4th Cir. 2011) (concluding that the Immigration Judge erroneously

rejected corroborative expert testimony); Rodriguez Galicia v. Gonzales, 422 F.3d 529,

538–40 (7th Cir. 2005) (holding that the Immigration Judge denied the alien’s due process

rights when he precluded two experts from testifying to offer corroborating evidence, even

though one of them had submitted an affidavit); Lopez-Umanzor v. Gonzales, 405 F.3d

1049, 1056–58 (9th Cir. 2005) (finding that the Immigration Judge’s refusal to hear

testimony from the alien’s domestic violence experts violated due process).

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training, or education.’” Matter of D-R-, 25 I&N Dec. 445, 459 (BIA 2011)

(quoting Fed. R. Evid. 702), remanded on other grounds, Radojkovic

v. Holder, 599 F. App’x 646, 648 (9th Cir. 2015).

An expert is distinct from a lay witness. An expert witness “may testify

in the form of an opinion or otherwise” if his or her “scientific, technical, or

other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). An expert

may make reasonable inferences based on facts and data. Matter of D-R-,

25 I&N Dec. at 460 (citing Fed. R. Evid. 703). By contrast, lay witnesses

generally cannot provide opinions but, instead, testify based on personal

experience and perception. Matter of Y-S-L-C-, 26 I&N Dec. 688, 690 (BIA

2015) (citing Fed. R. Evid. 602); see also United States v. Lopez, 762 F.3d

852, 863 (9th Cir. 2014) (“Personal knowledge means knowledge produced

by the direct involvement of the senses.”). In this case, since the respondent’s

witness does not have personal experience related to the facts and

circumstances of this case, his testimony was appropriate only to the extent

it constitutes expert opinion.

A key purpose of qualifying a witness as an expert is to provide a

framework for the Immigration Judge to evaluate the evidence. In assessing

whether to admit the testimony of a witness as an expert, an Immigration

Judge should consider whether it is sufficiently relevant and reliable for the

expert to offer an informed opinion. See United States v. Ruvalcaba-Garcia,

923 F.3d 1183, 1188 (9th Cir. 2019) (per curiam) (stating that the trial judge

must ensure that an expert’s testimony is both relevant and reliable). If the

testimony is determined to be admissible, the Immigration Judge should

consider how much weight it should receive. Id. at 1189; Matter of D-R-,

25 I&N Dec. at 460 n.13.

Generally, evidence is considered relevant “if it has any tendency to make

a fact more or less probable than it would be without the evidence” and

“the fact is of consequence in determining the action.” Fed. R. Evid. 401;

see also Ruvalcaba-Garcia, 923 F.3d at 1188 (“Relevancy simply requires

that ‘the evidence logically advance a material aspect of the party’s case.’”

(citation omitted)). Expert testimony in immigration proceedings is relevant

if it will help the Immigration Judge understand the evidence or decide a fact

in issue. Matter of D-R-, 25 I&N Dec. at 459 (citing Fed. R. Evid. 702). 6

6

There may be instances where an expert’s testimony is deemed irrelevant and therefore

inadmissible. See, e.g., Kholyavskiy v. Mukasey, 540 F.3d 555, 565–66 (7th Cir. 2008)

(upholding an Immigration Judge’s refusal to recognize a witness as an expert because he

lacked an academic or research background on the topic at issue). However, given the low

standards for admissibility of evidence in immigration proceedings, expert testimony

generally warrants being admitted in most cases. See Bouchikhi v. Holder, 676 F.3d 173,

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To be reliable, an expert’s testimony must be “based on sufficient facts

or data” that the expert “has been made aware of or personally observed” or

from sources that “experts in the particular field would reasonably rely on.”

Fed. R. Evid. 702(b), 703; see also United States v. Hankey, 203 F.3d 1160,

1167–70 (9th Cir. 2000) (finding a police gang expert reliable based on his

years of experience with gangs and his contact with the specific gang

members involved).

There is no uniform, rigid process for qualifying an expert witness in

immigration proceedings. 7 The Immigration Court Practice Manual states

that a proposed expert’s curriculum vitae or résumé must be made part of the

record. Immigration Court Practice Manual § 3.3(g), at 53 (July 2, 2020). In

addition, an opposing party should have the opportunity to cross-examine the

proposed expert witness about his or her qualifications and the scope of the

testimony and to object to the admission of the testimony. See id. § 4.16(d),

at 80. We have also recognized that “Immigration Judges have broad

discretion to conduct and control immigration proceedings and to admit and

consider relevant and probative evidence,” including witness testimony.

Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010); see also section

240(b)(1) of the Act, 8 U.S.C. § 1229a(b)(1) (2018); 8 C.F.R. §§ 1003.10(b),

1240.1(c) (2020); cf. Ruvalcaba-Garcia, 923 F.3d at 1188 (noting that trial

courts have broad latitude to assess an expert’s testimony).

In this case, the Immigration Judge did not allow the DHS counsel to voir

dire the respondent’s witness before he testified, although he gave counsel

an opportunity to challenge the witness’s qualifications on rebuttal, both

during cross-examination and in written closing argument. While it was

within the Immigration Judge’s authority to conduct the hearing in this

manner, this case illustrates why it is a better and more efficient practice to

allow the parties to question the proposed expert about his or her expertise

before substantive testimony is offered, if they request to do so. Voir dire

would have allowed the parties to establish the parameters of the witness’s

testimony, potentially limiting and focusing it on the specific issues within

his expertise. Instead, we are now considering his qualifications after he

provided almost 100 pages of testimony, requiring us to evaluate whether he

180–81 (5th Cir. 2012) (per curiam) (stating that the Immigration Judge’s “categorical[]

reject[ion]” of an expert’s testimony was “not optimal” and that a “better practice would

be to allow the expert to explain the scope and basis of his particular expertise, and then to

hear counsel out regarding how that expertise will bear on the material issues”).

7

During oral argument, the DHS requested that we adopt a uniform standard for

qualifying expert witnesses. We decline to do so. Although we have looked to the Federal

Rules of Evidence as guidance, we have never adopted those rules when considering

evidentiary issues in immigration proceedings, and it would not be practical to do so. See

Matter of D-R-, 25 I&N Dec. at 458 n.9.

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was, in fact, an expert on all the issues he testified about and whether his

opinion was sufficient for the respondent to meet his burden of proof.

Counsel for the DHS objected to the scope of the witness’s testimony

when he stated during direct examination that Iran’s extra-territorial

assassinations were not his “full area of expertise.” Despite the witness’s

concession, the Immigration Judge found his testimony to be admissible

and deserving of “significant weight.” The parties do not dispute the

Immigration Judge’s finding that the witness’s testimony was admissible.

However, the Immigration Judge did not sufficiently explain why he gave so

much weight to the witness’s testimony and extensively relied on it to

establish the respondent’s claim, particularly given the admitted limits on the

scope of his expertise. Although the witness may be an expert on country

conditions in Latin America generally, the issues in this case are specific to

Iran’s ability and intent to harm the respondent in Mexico and the Mexican

Government’s ability and willingness to protect him. The Immigration Judge

found that the witness “came with a wealth of background knowledge,” but

he made no specific findings regarding the witness’s expertise as to the issues

in dispute.

In order to give significant weight to the testimony of a person qualified

as an expert, the Immigration Judge should determine that the witness’s

testimony is probative and persuasive regarding the key issues in dispute in

the case. See Matter of D-R-, 25 I&N Dec. at 460 n.13 (“An Immigration

Judge who finds an expert witness qualified to testify may give different

weight to the testimony, depending on the extent of the expert’s

qualifications or based on other issues regarding the relevance, reliability,

and overall probative value of the testimony as to the specific facts in issue

in the case.”). Questions regarding an expert’s testimony in Immigration

Court often go to the weight given to testimony, rather than to its

admissibility, in part because a court’s traditional “gatekeeping” function of

screening out expert testimony that is “not sufficiently reliable or

trustworthy” for a jury is less significant where the judge is the trier of fact,

as in the immigration context. United States v. Brown, 415 F.3d 1257,

1266–70 (11th Cir. 2005); see also United States v. Hodge, 933 F.3d 468,

478 (5th Cir. 2019) (stating that questions relating to the reliability of an

expert’s opinion generally affect the weight given to the opinion, rather than

its admissibility); Akinfolarin v. Gonzales, 423 F.3d 39, 43 (1st Cir. 2005)

(holding that the Immigration Judge’s reasons for finding an expert’s

evidence unreliable were valid and supported the Immigration Judge’s

conclusion that the evidence should not be “given much credence”).

An Immigration Judge should only find an expert’s opinion to be

persuasive if there is a reliable factual or evidentiary basis for his or her

conclusions. See United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003)

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(stating that if an expert’s opinion is “to be of value,” there must “be a link

between the facts or data the expert has worked with and the conclusion the

expert’s testimony is intended to support”); see also Kenosha Liquor Co.

v. Heublein, Inc., 895 F.2d 418, 420 (7th Cir. 1990) (“Experts’ opinions are

worthless without data and reasons.”). There is no indication that the

Immigration Judge reasonably considered whether the witness’s opinion had

a sufficient factual basis to essentially establish the respondent’s claim.

For example, despite finding that the witness’s testimony was “supported

by the documents he offered,” the Immigration Judge did not identify what

evidence provided the basis for his testimony that Hezbollah and Mexican

drug cartels may work together to target the respondent on behalf of

Iran. The witness testified that Iran has targeted political opponents in

Latin America, but he cited no evidence that Iran carries out such activities

in Mexico. The only reference to Hezbollah in Mexico relates to the

organization’s work with cartels to smuggle drugs and people.

In addition, the Immigration Judge did not identify the facts or data

supporting the witness’s testimony that the Mexican Government is unable

and unwilling to protect the respondent from pro-Iranian actors, particularly

Hezbollah or Mexican drug cartels. In this regard, we note that the witness

only discussed the “weaknesses in Mexico’s criminal justice system” and

provided an example of a well-known journalist who was killed in Mexico.

We also note the respondent’s testimony that he believes Iranian agents

chased another student in his group when he went to the airport to pick up

the respondent’s bags. He claimed that those agents also surveilled his home

on numerous occasions, cut his telephone and power lines, and entered and

searched his home in Mexico after he came to the United States. The

respondent’s aunt testified that she reported the possible surveillance and

break-in to the police and that the police conducted an investigation.

However, the Immigration Judge did not explicitly consider any of this police

action when determining whether the Mexican Government has the ability or

willingness to protect the respondent.

The Immigration Judge did not make a finding that there was a reliable

factual or evidentiary basis for the expert’s opinion to support his conclusion

that the opinion was so persuasive as to deserve “significant weight.”

Without such a finding, we cannot exercise our de novo review of the

Immigration Judge’s determination that the respondent met his burden of

proof to establish eligibility for asylum. See Matter of Z-Z-O-, 26 I&N Dec.

586, 591 (BIA 2015) (“[W]e will accept the underlying factual findings of

the Immigration Judge unless they are clearly erroneous, and we will review

de novo whether the underlying facts found by the Immigration Judge meet

the legal requirements for relief from removal . . . .”).

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Moreover, the Immigration Judge did not address the issues raised by the

DHS regarding the greater weight that was given to the witness’s testimony,

compared to the other evidence that was presented. A factual basis for the

witness’s testimony is especially important in this case since it does not

appear to be consistent with the State Department country reports entered

into the record. Although the witness insisted that Hezbollah works with

Mexican drug cartels in Mexico, the 2016 Country Reports on Terrorism

states that “there are no known international terrorist organizations operating

in Mexico.” U.S. Dep’t of State, Bureau of Counterterrorism, Country

Reports on Terrorism 2016–Mexico (July 19, 2017); see also id., Country

Reports on Terrorism 2019–Mexico (June 24, 2020), https://www.state.gov/

reports/country-reports-on-terrorism-2019/mexico/ (stating that “there was

no credible evidence indicating international terrorist groups established

bases in Mexico, worked directly with Mexican drug cartels, or sent

operatives via Mexico into the United States”).

Although the State Department country reports should not be given

dispositive weight to the exclusion of all other country conditions evidence,

the reports provide important evidence that should be given reasoned

consideration. See Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008)

(“U.S. Department of State country reports are ‘the most appropriate and

perhaps the best resource for information on political situations in foreign

nations.’” (citation omitted)); see also Ali v. Holder, 637 F.3d 1025, 1030–31

(9th Cir. 2011) (noting the importance of the State Department reports, but

emphasizing the need for an “individualized determination” of an asylum

applicant’s eligibility); Chand v. INS, 222 F.3d 1066, 1077 (9th Cir. 2000)

(acknowledging that the State Department reports may not contain all the

information relevant to an asylum applicant’s claim).

In this case, the Immigration Judge did not address the State Department

reports, except to state that the witness’s testimony “was not rebutted by the

government, including with the articles offered by the [DHS].” This general

statement is insufficient to explain why his testimony was more reliable than

the Department of State reports. See Cole v. Holder, 659 F.3d 762, 771–72

(9th Cir. 2011) (remanding where potentially dispositive evidence of country

conditions was not given reasoned consideration); Bromfield v. Mukasey, 543

F.3d 1071, 1077 (9th Cir. 2008) (remanding where the Immigration Judge

did not address key aspects of the State Department country report).

In sum, in assessing whether to admit the testimony of a witness as an

expert, an Immigration Judge should consider whether it is sufficiently

relevant and reliable for the expert to offer an informed opinion, and if it is

admitted, the Immigration Judge should then consider how much weight the

testimony should receive. If a party challenges the expert’s qualifications, it

is generally best to allow the party, upon request, to voir dire the witness

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before the testimony is presented in full. In considering how much weight

to give an expert’s testimony, the Immigration Judge should assess how

probative and persuasive the testimony is regarding key issues in dispute for

which the testimony is being offered. However, to the extent that the record

contains contradictory evidence, the Immigration Judge should explain why

inferences made by the expert are reasonable and more persuasive than the

other evidence presented. Without such findings, we are unable to determine

whether an Immigration Judge’s reliance on an expert’s testimony was

reasonable.

Given our limited fact-finding ability on appeal, we conclude that a

remand is necessary for the Immigration Judge to make specific findings

regarding the scope of the witness’s expertise as to the key issues in dispute

and to determine whether there is evidence in the record that would support

his opinions. On remand, the Immigration Judge should also explain why he

finds the witness’s testimony more persuasive than the other evidence in the

record, to the extent they may be inconsistent. See Matter of S-H-, 23 I&N

Dec. 462, 465–66 (BIA 2002) (emphasizing the need for Immigration Judges

to include in their decisions clear and complete findings and analysis, in view

of the Board’s inability to conduct fact-finding on appeal).

Accordingly, the DHS’s appeal will be sustained in part and the record

will be remanded for further proceedings. In remanding, we express no

opinion as to the ultimate outcome of the case.

ORDER: The appeal of the Department of Homeland Security is

sustained in part.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

NOTICE: If a respondent is subject to a final order of removal and

willfully fails or refuses to depart from the United States pursuant to the

order, to make timely application in good faith for travel or other documents

necessary to depart the United States, or to present himself or herself at the

time and place required for removal by the DHS, or conspires to or takes any

action designed to prevent or hamper the respondent’s departure pursuant to

the order of removal, the respondent shall be subject to a civil monetary

penalty of up to $813 for each day the respondent is in violation. See Section

274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

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