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evidentiary issues found in immigrant deportation cases

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Evidentiary issues found in immigrant deportation cases
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Evidentiary issues found in immigrant deportation cases
There are many reforms that are sweeping across the US in connection to the issues of immigration and deportation. Most immigrants have had to vacate the US because of illegal entry to the region, to overstay when using visas that are temporary or going to the US without express permission from the government. There have been different crackdown laws in the US, and notable among them is the Arizona immigration law that is controversial. The law gives law enforcement agencies the permission to go around the region and investigate all immigrants, with the idea of enforcing deportation. Such measures and many other reforms have made many immigrants to get scared. Most of them fear being removed or deported to their home countries where they are never at peace. The US constitution provides for various rights and privileges to the immigrant and the citizens, in general, but such are never upheld during court proceedings. The idea of having clear proof and enough evidence before executing a case has been ignored by many authorities. However, various organs of the judicial system have brought about relieve, as they reverse cases that they think should act on reasonable grounds other than following strictly on the laws that are provided.
Evidentiary Law
The law on evidence constitutes all the principles and guidelines that are used to provide proof during cases.

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The guidelines provided determine various pieces of evidence that can or cannot be used in reaching a final decision or solution to cases. The evidentiary law also deals with the amount of weight and proof that are required to in litigation (Brabeck et al., 2011).
The total amount of evidence that is required during litigation is referred to as quantum of evidence, and also encompasses the overall quality of the proof that has been given to support a case. The various concepts of a quantum of evidence include authentication, admissibility, hearsay, clear and convincing evidence and reasonable doubt. The various forms of evidence that are available depend on the source, and the evidence given makes use of testimony from a particular individual.
Testimonies are usually made through the use of written statements and oral explanations while exhibits comprise of different objects that are physical in nature.
During disputes, which may be criminal or civil in nature, judges and the courts as a whole often rely on the convincing evidence before they provide their final verdict. The law often ensures that various guidelines that are presented to the courts can be used as evidence because of their validity.
Inadmissibility of Evidence
Scholars who have studied on different legal matters have in the past recognized the ideas of evidence as supreme when dealing with different cases. Evidence provided in the courts provides for a stand in which the judge can provide his or her ruling after the process is finished. Based on the English common law, there was a need for evidence to be provided in the courts to follow certain rules and regulations for them to admissible in the appeals court. The evidence provided must be able to disapprove or approve a particular element that has been brought before the court (Coleman & Kocher, 2011).
However, relevance nature of the evidence provided is always not a condition for its admissibility. For example, evidence that is found to be unfairly prejudicial or confusing cannot be used when determining different cases in the courts. The idea of accessing the general relevance and irrelevance of evidence can easily be determined through uncertainties or probabilities that pertain to a particular element.
Further, there is always an amount of agreement that judges agree upon when making different judgments that pertain their cases. The agreements conform to the reasoning of individuals or common sense. The idea is accepted and practiced because it places an individual on a particular issue and relevant measures considered.
Additionally, there are no agreements followed when irrelevance or relevance of matters is provided through the explicit provision of reasoning capability. Most judges refute such ideas and confirm that all judgments often rely on unarticulated intuitions and hunches. There is, however, a general agreement that the idea of relevance to some evidence often requires some form of proof from people who have the knowledge and expertise towards those areas, and this includes scientific information. The general agreements often fall fully on the discretion of the courts that are set to determine different cases, although rulings on relevance can be overturned through appeals that allow different parties to fully substantiate their evidence through the court of appeals.
Rule 401 which is provided by the Federal Rules of Evidence confirms that evidence can be relevant if it makes the provided evidence a major fact in the determination of cases. Consequently, Rule 403 provides that evidence can be excluded if it is found to be probative on the process of unfair prejudice or if confusion is the result of the elements being handled. The exclusion of evidence can also be factored in if the evidence provided is deemed reasonably irrelevant or if it is found to waste time and resources in the process of misleading to the courts.
Under the English Law, evidence to an element can be excluded after being directed by the trial judge. This can only happen if it is found to allow to a defendant to admit the evidence that has been provided in the court in overall. Evidence that are of a confession nature can be removed from a case if it is found to have been found through oppression, or if the confession made was as a result of things that were said or done to the defendant.
Under these circumstances, the evidence will not be used, and the trial judge will exclude the provided evidence under Section 78 (1) which is found in the Police and Criminal Evidence Act of the year 1984. It can also be deemed unreliable under Section 73 of the same Police and Criminal Evidence Act of 1984; although under normal circumstances the irrelevance nature of the evidence will be denied under Section 76 of the Police and Criminal Evidence Act of 1984 (Brabeck & Qingwen, 2010).
There are other evidence that can be excluded under the common law or 78 PACE if the presiding judge confirms that admissible of the evidence can lead to an adverse effect to the proceedings, and the court should not allow them to be used.
There are other types of evidence like the documentary evidence, where the particular subject will be required by law to provide enough evidence that the provided document is tangible and can be used through the court process without any problem. When the offeror provides that the evidence was a gun, for example, he or she will be supposed to provide evidence in court to its effect. This type of requirement is always important when there are jury trials in the court. When the requirement of authenticity is not available, the court can easily deem the provided evidence as irrelevant and unpersuasive.
Under the English law, all the evidence that was provided by was supposed to be backed by some witness, who was supposed to swear to affirm that the information provided was true. Most of the law regulates the type of evidence that is supposed to be provided and the manner in which it is provided to the courts. The manner in which the witness is cross-examined is also regulated to avoid questions that are not important to the provided element. Further, evidentiary laws provide explicit information in the form of rules of persuasions that can be used when to cross examining witnesses during proceedings (De Genova, 2010).
Currently, all individuals who are part of the case can be allowed to provide evidence through the courts, and this is because they are always seen as witnesses when any information regarding a particular case is needed from them. However, there are some certain considerations that are always made when witnesses are not supposed to provide evidence to particular elements in court. The inability to provide correct information or to have some form of attachment to the case can make an individual in a particular case to be denied permission to act as a witness.
Rules on privilege provide the person holding the privilege to make a witness not to provide evidence in the court. Such privileges are known to be in effect to give protection to some information that is deemed confidential. Most of the privileges that are granted to individuals often fall on various factions like spousal privilege, doctor-patient privilege, clergy-penitent privilege and state secrets privilege. It is vital to note that different jurisdictions have their privileges that allow them to stop providing information that they think is confidential. They are however given the opportunity to present their information confidentially to the jury for them to ensure validation.
Competence rules of witnesses are often regarded as guidelines that specify and provide different circumstances that make witnesses ineligible to become witnesses. It is often recommended that a juror or judge cannot provide testimony to a case that they serve under their different capacities. Alternatively, an individual is never supposed to serve in the provision of testimony in cases that involve dead persons.
The government solely provides information towards different rules that should be followed on matters of giving evidence in court. Different nations have their regulations on the provision of evidence in court, and such regulations are always followed strictly (Dow, 2007).
Under the jurisdiction of common law, hearsay is known to be one of the complicated areas, when providing evidence to a particular case. The law provides many options, and this fully depends on the jurisdiction of the case. In general, hearsay is known to be inadmissible in a court of law and cannot be used by the defendant in a case. Hearsay is known to be a matter that is out of the court, and hence needs more tangible evidence when used in the court. During hearsay, one party often tries to provide information, that they claim were provided by the declaring. Under common law, there are many exemptions that are usually made when hearsay is used in a court of law.
Circumstantial evidence
This is evidence that is known to be evidence that is not direct, and that which tries to imply that there is a fact that is in question but does not prove it as required by law. Such evidence is used by removing the facts from the circumstances that are prevailing through a process of reasoning. Circumstantial evidence incorporates fingerprints or samples of DNA from an individual for purposes of a particular case that is before the courts. The idea that a particular person tried to commit a crime is circumstantial evidence and can never be held against him or her. In essence, however, evidence that is usually provided by people in court is treated as circumstantial because they never have any substantial prove of the occurrence submitted.
Burdens of Proof
Every proceeding in a court of law often requires that every party to the case provide burdens of proof, which in most cases have to be proved beyond any doubts. The evidence ought to be convincing and clear before it is given weight by the court. Many regions provide burdens of proof in accordance their shifting. The burdens of proof require that when a party is in a position to provide evidence, they should be able to have strong backgrounds on them to avoid their opposing party from providing stronger proofs (Dreby, 2012).
A special category of such information includes every facet that a court of law can have a judicial notice. The category provides various matters that can be taken direct by the court without other evidence to support what was provided initially. For example, when one party is accused of transporting different goods from one region to another without crossing different state lines, the court may hold that it is always impossible for goods to be transported across two regions without crossing such state lines. Civil cases often take notice of the elements described without any problem, whereas criminal cases require some form of evidence to support the provisions by the parties concerned.
Evidential rules coming from other areas of law
There are other rules that do not allow the overall admissibility of a case, and such rules are often considered to have emerged from other laws. Such laws may include exclusionary regulations that are often of criminal nature in a proceeding. They often prohibit admission in a trial of criminal nature, and most of these cases emerge from various means that are deemed to be unconstitutional. The parole evidence law that is part of the contract law also prohibits the admission of evidence that have been provided by the courts because of their contents.
In regions where civil law is followed strictly, the provision of evidence on cases is seen as belonging to a section of the procedural law.
Tampering with evidence
Before a court makes its final decision on a particular case, they are often required to confirm that the evidence provided does not tamper with, and can be used in a court of law. Destroying of evidence is often considered as tampering with evidence or spoliation of evidence, and often involves the intent to interfere with a court proceeding. Such occurrences often lead to jail terms to those who are found guilty because they were not supposed to temper with the evidence before the conclusion of their cases. Tampering of information that is supposed to be used as evidence is thus considered deeply as falsifying, concealing or altering of the evidence before it is used by the courts for final verdicts to take effect.
Parallel construction, on the other hand, entails the preparation of false information or evidence, but plausible, and explains how some evidence came into being in the case (Passel & Lopez, 2012). It hides the truth and provides facts that are relevant to the case in question. Depending on the prevailing circumstances, it is vital to note that changing information or evidence before they are used is punishable by law and may lead to confusion before the cases are heard and judged as required. The law explicitly provides different paradigms that should be followed by both the plaintiff and defendant while in the process of having court processes. Both can add other cases on their shoulder if they prepare or engage in different activities that question the validity of their information.
Cheng Fan Kwok v. INS, 392 U.S. 206 (1968)
The petitioner was a Chinese native, who went to the US as a seaman in the year 1965. He had his vessel in the sea, and during this time he stayed in the US for a longer period as an immigrant. Cheng was apprehended by the police in the US and was to be deported back to his country. Cheng agreed to go back to his home country but wanted to do it voluntarily. He later remained in the region and sorted an adjustment to his deportation, which was not granted by the court. Cheng sort his status changed through section 242 (b).
Despite his good faith request, he still stayed in the US for a couple of days while waiting for his case from the immigration court. He was later denied his adjustment to stay in the US, and this led to the court of an appeal process for the third circuit. He desired to review his denial of stay in the US, and the court of appeal on its part denied his case on the grounds that he was bound by the provisions of 106 (a), and the case was not applicable, unless the orders were started on the proceedings of 242 (b) (Patler & Gonzales, 2015).
Cheng’s appeal was denied under the Immigration and National Act, and other regulations that were put down under its authority. Section 242 (b) clearly outlined the specifics under which any immigrant might be deported. It provides counsel that an entry into inquiry can only be possible before an inquiry officer who has enough information and evidence that pertain to the accused information. The petitioner had the right of counsel, cross-examination through witnesses and a proper reasonable opportunity of the matter before the court. The officer is supposed to provide evidence and proof on his or her judgment, and later inform the court on the conditions that prevail on the case.
The regulations provided provide that a discretionary relief is presented by the inquiry officer, and this should expressly follow after his or her approval. In the case of the petitioner, he informed the jury to allow for a temporary withholding of the matter because he was going to be persecuted to the country he was being deported to, but all this were not considered by the appeal court during his judgment. The district officer is mandated to collect such information from the petitioner and make right judgments whether to deport the person or allow for temporary stay awaiting other formalities to take effect. Later, the denial by the court was found to be flawed and not appealable to the board of immigration appeals.
The laws of deportation in accordance to this case were affected because they did not allow an appeal to take effect after the hearing under section 242 (b). Amendments were for this act to allow other laws to take center stage and allow the petitioner benefit of the doubt through reasoning that he was going to be persecuted by the host country after deportation. The court of appeal also had a mandate of affirming section 242 (b) but also make such allowances expressly for purposes of helping the petitioner. The laws are still in place, and no major amendment has been done to the article in an effect of the case in question.
Mojica v. Reno, 970 F.Supp. 130 (E.D.N.Y. 1997)
This was an important case in the US as outlined in the first impression; the case affected the rights of most petitioners who wanted to continue being permanent residents, a move that had been curtailed by the courts. Immigrants and other citizens sort Court rulings that were pertinent to their issues of stay in the US. Most of the petitioners, who are similar to this case, desired that they stay in the US under humanitarian grounds. The grounds were clearly enumerated by section 212 (c), which held that there was a need for relief for petitioners when they face imminent danger in their home countries.
Previously, the Attorney General had expressed powers to deport individuals without following the rulings of other judicial organs on a ground of 212 (c). The section was found to be flawed and according to the section’s amendments, petitioners had a right to receive the equal hearing and fairness before their cases were determined. The attorney general’s following of the section meant that no waiver was granted to the petitioners even when they were to get parole after convictions from their native countries.
The case clearly indicates the authority that was placed on the attorney general and other arms of government before they proceeded to make final judgments. The idea of following after different pieces of evidence provided by witnesses was curtailed, and this made it hard for many petitioners to win their cases. Most of them ended up going back to their homes that were not safe while others were persecuted in taking part in some political activities while in the US.
This was the first case that held section 440 (d) in accordance to AEDPA. This section does not allow immigrants to have or hold permanent residence in the US after they have been convicted of different crimes after seeking a waiver on deportation. It is not applied retroactively, hence gives petitioners a slim chance of defending themselves in the courts. The case was very influential because it did make changes to other cases like that of Henderson v. INS and Reno v. Rosario.
St. John v. McElroy, 917 F. Supp. 243 (S.D.N.Y. 1996)
St. John, who was a permanent resident immigrant in the US was denied entry and detained by the INS as they waited for a determination that was deemed final from the Board of Immigration Appeals. Her appeal to continue staying in the US was still pending after being convicted in Bermuda. Coven & Bretz, LLP fully represented St. John and they informed the court that she was eligible for parole, because during this time section 236 (e) was not constitutional.
The section application stood for people who returned as immigrants from their home countries to continue staying in the US after a long period. The court of appeal held that St. John was supposed to be covered by parole because she had a permanent residence before she left to Bermuda. The Fifth Amendment was not satisfied because offenders in her case are supposed to be allowed to have impartial adjudicators who proceed with their cases when they return from their home countries.
The case made changes to the immigration standing as it enabled a permanent resident to continue with parole after being accused of a crime in her country. Section 236 (e) was also found to be unconstitutional, hence not able to hold the petitioner captive before her court of an appeal process. The petitioner successfully won the case through the court of appeal and allowed to commence parole in the US as a permanent resident.
Such cases have made changes to the operations of courts in the US as they can understand and allow aliens who come back to the US to hold on to their previous position as permanent residents without having to face the INS before starting parole, and this only happens when the individual has been convicted of a crime in their home country.
Dash v. INS, 59 F.3d 697 (7th Cir. 1995)
Mr. Dashto was found by the Board of Immigration Appeals to be ineligible for any discretionary relief for his deportation because of his conviction. The court of appeals, however, found out that Mr. Dashto was eligible for discretion relief, a ruling that was conflicting with that of the Board of Immigration Appeals.
The evidence provided was not sufficient enough to warrant Mr. Dashto’s conviction and subsequent denial to stay in the US. The evidence that was provided by the court as a sign of proof were tampered with before they were used by the courts and this rendered the information invalid and not able to hold Mr. Dashto captive. The criminal records of Mr. Dashto were different from those presented in the court of appeal, and this made it easy for him to win the case. Issues of evidence are often important and superior when matters concern the possession of a particular element that is not wanted by the host country.
Matter of Yeung, 16 I. & N. Dec. 370 (BIA 1977)
The appeals through the Board of Immigration clearly held that under a deportation case, which is still in progress a petitioner is supposed to submit an application to be considered under section 245. The district director was given the mandate to make a decision on the change of preference by the Board which was later overturned by the appeals court. The immigration judge was found to have acted contrary to section 245 applications as the petitioner did not receive any notification that was in written form to indicate denial of changing his status.
This case clearly indicates that there was a conflict between the Board of Immigration and section 245, and this made it hard for Matter to lose the case. The evidence provided in the court clearly indicated that the petitioner did not receive any written information that stated the denial status. The information that was to act as evidence in court was supposed to be in written form and not hearsay as it came out. The appeals court ratified the position of the petitioner and change of status was probable after the proceedings.
Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008)
This case made a greater milestone towards achieving permanent residence in the US. Sharkey started by filing a clear action that was against the USCI, where she confirmed that she was denied permanent residence, and unlawfully denied the change of status as was to be the case in accordance to 245 (b). The regulatory and statutory regulations that were to be followed by the courts were downplayed, and this made Sharkey probable for deportation. The USCIS was supposed to provide the petitioner with proof of her stay in the US but failed due to weak evidence that preceded the case in the proceedings.
When she received permanent residency in the US, an officer from the USCIS crossed an important stamp from her passport that was to act as proof of permanent residence in the US. The District Court on its part and acting under the laws of jurisdiction dismissed her case citing jurisdiction problems. The petitioner appealed, and after her case was heard she was found to have had a valid action that constituted her stay in the US. The case was later taken back to the District Court, and this led to the unanimous conclusion that she was indeed a permanent resident of the US.
Her case that superseded many under similar circumstances clearly indicated the conflicts that were available in the District Court, and their inability to conform to other laws except for the idea of jurisdiction. Her cause of action was valid, and this made her probable to stay in the US as a permanent resident without any problems. The case was upheld by the evidence provided by the District Court, albeit their dismissal on the grounds of jurisdiction.
Shi Jie Ge v. Holder, — F.3d —-, 2009 WL 4281472 (2d Cir. 2009)
The case was taken by Bretz & Coven LLP, and they made a landmark winning that almost made changes to many cases that pertained asylum seekers in the US. The Board of Immigration did not make proper considerations to the case, through flawed proof and evidence that were paramount to the conclusion of the case at the judgment period.
The case went before the US court of appeals, and the court found important matters that concerned immigrants who were asylum seekers. The laws on asylum were stringent and needed clear proof before an individual was granted asylum in the United States. The case failed to follow after various regulations that are set for such categories, and this provided a strong basis for the petitioner to win.
The Chinese asylum in the case claimed persecution due to his political activities in the US as a member of CDP, which hold strongholds around the globe. Members of the group advocate for democracy and have always been on the forefront on fighting human rights of people, more so on grounds vulnerability of individual victims. The petitioner and other members from CDP complained of mistreatment and abuse of their rights by the Chinese government due to the weak political system that prevailed in the country during this time.
Members were in the forefront of their activities and sent their messages to the Chinese government and other people around the world through demonstrations and publication of different articles on human abuse in the nation. The organization, however, gave Mr. Ge directions of not going public with their intentions and only provide a little information that would bring about changes in their nation. He later went public, and his deportation to the country was going to be disastrous because of the persecution that was imminent.
Mr. Ge applied for an asylum status to avoid deportation, but his application was denied by the immigration judge who cited that the petitioner failed to apply for his asylum status one year after he arrived in the US. The judge also confirmed that the petitioner did not provide enough evidence and proof of persecution. Hence his asylum application was baseless to the government, and that there was no imminent threat to his life back in China. His inability to file an application made it impossible for the US government to grant him asylum, and this made it hard for the judge to ascend to his asylum status. Similar sentiments were also provided by the Board of Immigration Appeals but were reversed by the Second Circuit.
The Second Circuit found out that both the Board of Immigration Appeals and the Immigration judge erred in making a clear definition of the circumstances that were changed by Mr. Ge. He was supposed to file his asylum application after his political activities were made public, and not when he was still undercover on his political activities. His application was not supposed to follow after his joining of the group but after it became public.
The Second Circuit also reversed the findings by the Board of Immigration and Appeals and held that the petitioner was not supposed to provide proof of his being in danger through persecution by the Chinese government, but were supposed to make reasoning conclusion that the government was going to know his political activities after he arrives in China, and this is when his freedom will be curtailed. Mr. Ge was allowed by the Second Circuit to provide more evidence to the case, which was to show the Chinese government likeliness of knowing his political activities and subsequent persecution.
Mr. Ge was later granted asylum in the US, and the landmark ruling made many changes to the regulations and rules that were followed when dealing with issues of seeking asylum in the nation. Immigration laws in the US were seen to provide minimal evidence and proof of cases before various judgments were made on their victims. The laws were changed by the Second Circuit, and members were allowed to provide enough evidence that indicated an imminent threat when they traveled back to their home countries. They were also supposed to apply for asylum after coming out clear on their activities and not when they are still in the process of making different adjustments.
Half of the immigrants in the US who are facing deportation charges have successfully won their cases due to the flaws that were found in the provision of evidence and proof. Most cases are appealed to the Board of Immigration and Appeals which mandates petitioners to seek the consent of the District Court when there are invalid reasons to deport. The District Court provided for jurisdiction confirmations only, and most of these cases went to the Second Circuit for final submissions. The Second Circuit on their part made full use of their reasoning and held that most cases were not properly checked for proof, and his made them weak on their own. Getting enough evidence before cases are preceded is vital as it gives petitioners the opportunity to provide enough information before their cases are concluded. There is, however, a greater need for reforms in the immigration department in the US to ensure that immigrants are served well with the constitution that dictates fairness to all the people. Lack of trust has however been seen in the new reforms as the rates of deportation cases have risen in the past. The policy changes have been made by the nation to ensure similar provisions of the District Court, the Board of Immigration Appeals, the immigration judges and other stakeholders who have interest on the issues that pertain to immigration in the US.

Brabeck, K. M., Lykes, M. B., & Hershberg, R. (2011). Framing immigration to and deportation from the United States: Guatemalan and Salvadoran families make meaning of their experiences. Community, Work & Family, 14(3), 275-296.
Brabeck, K., Qingwen. (2010). The Impact of Detention and Deportation on Latino Immigrant Children and Families: A Quantitative Exploration. Hispanic Journal of Behavioral Sciences, 32, 341-361.
Coleman, M., & Kocher, A. (2011). Detention, deportation, devolution and immigrant incapacitation in the US, post 9/11. Geographical Journal, 177(3), 228-237.
De Genova, N. (2010). The Deportation Regime: Sovereignty, Space, and the Freedom of Movement. In N. De Genova & N. Peutz (Eds.), The Deportation Regime: Sovereignty, Space, and the Freedom of Movement (pp. 33-65). Duke University Press.
Dow, M. (2007). Designed to Punish: Immigrant Detention and Deportation. Social Research, 74(2), 533-547.
Dreby, J. (2012). The Burden of Deportation on Children in Mexican Immigrant Families. Journal of Marriage and Family, 74(4), 829-845.
Passel, J. S., & Lopez, M. H. (2012). Up to 1.7 Million Unauthorized Immigrant Youth May Benefit from New Deportation Rules. Pew Hispanic Center, (202), 1-11.
Patler, C., & Gonzales, R. G. (2015). Framing Citizenship: Media Coverage of Anti-deportation Cases Led by Undocumented Immigrant Youth Organisations. Journal of Ethnic and Migration Studies, 41(9), 1453-1474.

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