A September 2009 article in Bender's Immigration Bulletin outlined the debate about admissibility of assessments by asylum officers as evidence before the Immigration Judge.
 
The Office of the Chief Immigration Judge published an official document distributed to immigration judges and court administrators instructing them that absolutely no document containing any reference to INS credibility findings may be filed with the Immigration Judge.  The Board of Immigration Appeals recently upheld this document as law and held that this document precluded assessments being admitted into evidence. 
 
Despite these two sources of law, assessments are still frequently admitted into the Immigration Courts and there currently exists a split among the circuit courts as to whether or not admit these assessments as evidence. 
 
What Exactly is an Assessment by an Asylum Officer and How Does it Work?
When a refugee arrives in the United States and wishes to apply for asylum, the refugee will file a Form I-589 and a face-to-face interview will be scheduled with an Asylum Office.  The Asylum Officer ("AO") conducts an interview with a refugee to determine their credibility, where the AO will take notes on various aspects of credibility of the refugee (the "AO assessment").  If asylum is not granted by the AO, the AO shall refer the application to the immigration judge. 
 
What Do the Courts Say About the Admittance of AO Assessments into Evidence?
In 1995, the Board of Immigration Appeals ("BIA")reversed and remanded a case where the Immigration Judge ("IJ") relied on the AO assessment.  The BIA noted that the assessment was not meaningful, clear, and reliable, but rather was just a compilation of notes flawed with poor translation.
 
In an unpublished 2005 case, the BIA again reversed and remanded a case where the IJ relied on the AO assessment.   The BIA, however, based its decision on  the authority of the Office of the Chief Immigration Judge's document, Operating Policy and Procedures Memorandum Number 00-11 ("OPPM").  The BIA asserted that this document precludes the AO assessment from being admitted into evidence. 
 
The Federal Circuit Courts, however, are currently split on whether AO assessments are reliable and therefore can be admitted as evidence before the Immigration Judge.  Some circuits, including the second and ninth circuits, have frequently reversed and remanded cases where AO assessments were admitted into evidence, citing the absence of questions in the notes and problems with translation.  Other circuits, such as the third, sixth, and eighth circuit, have held that AO assessments can be admitted and relied on if certain aspects or certain assessments are clear, specific, and extensive. 
 
The Fourth Circuit, where most appeals for Beach-Oswald clients are heard, has ruled that not only can Immigration Judges admit AO assessments as evidence, but the OPPM which would normally preclude the admittance of AO assessments does not actually have the force of law. 
 
What Can a Client Do to Assure That Their AO Assessment Will Not Be Admitted Into Evidence?
If a non-immigrant applying for asylum is afraid that their AO Assessment will be used against them in their trial before the Immigration Judge, then they can contact the associates at Beach-Oswald Immigration Law Firm for help.  Our associates will use the OPPM and BIA opinions to support your case and assure that you are entitled to a fair and just hearing before the Immigration Judge under law. 

 

 

People who have gone through experiences similar to Ahmed's may be eligible for asylum within the United States based on religious persecution.  If you know someone that qualifies for this type of relief, please recommend them to BOILA P.C., where we have won hundreds of asylum cases.