What Is A Merits Hearing?
The merits hearing is the equivalent of a trial at immigration court.
Sometimes referred to an “individual hearing”), this is where immigrants facing deportation have an opportunity to present arguments to an immigration judge why they should be allowed to remain in the United States.
What Happens At A Merits Hearing?
At the merits hearing, immigrants are entitled to:
- Testify regarding their application for immigration relief
- Offer witnesses to testify on their behalf
- Present documents in support of their claims
- Make arguments why they are entitled to being allowed to remain in the U.S.
Statements are given under oath, reflecting the duty to tell the truth. Cassette tapes are used to record testimony given. After the hearing, the testimony is transcribed into a booklet, which becomes the official record of proceedings if an appeal of the judge’s decision.
An attorney for the Department of Homeland Security will question the immigrant and his supporting witnesses, as well as present its own witnesses, submit their own documents, and offer arguments in opposition to the grant of requested relief.
Your immigration trial, which can last several days, is your opportunity to put your best deportation defense foot forward and convince the government you deserve to live and work legally in the United States.
At the conclusion of the merits hearing, the immigration judge issues a decision. Generally, the decision will be oral and pronounced on the same day as the merits hearing. But if the decision is lengthy or contested, the decision will be written and later served by mail on all parties.
What Are The Rules For Your Testimony?
As noted above, the merits hearing at immigration court is a formal proceeding and your statements will become very, very important in helping the judge reach a fair decision. In addition, be aware that the government lawyer is given great leeway in asking questions. However, if you keep in mind the following tips, you’ll maximize your chance for victory.
1. Always Tell The Truth
Always tell the truth. To put it bluntly, the greatest disaster that can occur in any case is when an individual tries to distort the truth. No matter how harmful you might think the truth will be, telling a falsehood is far more damaging.
2. Never Lose Your Temper
Never lose your temper. Do not get into verbal fights with the government attorney. Some lawyers use aggressive questioning as a tactic to mislead you, to disrupt your composure. Other lawyers are just plain rude. In either situation, do not debate or argue with opposing counsel.
Sure, it’s natural to want to convince the government attorney why you are right and he or she is wrong. But generally speaking, these attempts will be unsuccessful. Worse, such efforts may only generate more questions.
Being argumentative or confrontational does not lead to a positive result, and more often than not will annoy the judge. The immigration judge will come to your defense if he thinks the government lawyer is out of bounds with his questioning. On the other hand, the judge may think you’re covering up something and start to engage you directly with his own line of questions to discern the truth.
3. Do Not Fear The DHS Attorney
Do not be afraid of the Department of Homeland Security attorney. Government counsel is there to do his job, which is to ensure you deserve relief from deportation. Although not all DHS attorneys demonstrate a killer’s instinct, you should never forget their adversary role. Avoid getting chummy with him or her, even if their presentation style seems somewhat informal and relaxed.
4. Be Yourself
Be yourself, to the extent possible. Do not attempt to portray yourself as someone you are not. It is likely to increase your anxiety and nervousness. In addition, a lack of sincerity on your part is nearly as devastating to your case as not telling the truth.
5. Be Sure You Understand The Question
Be sure you understand the question. If you do not comprehend a question, ask that it be explained or repeated. Nearly all lawyers get verbose at times and ask questions that make little sense in common everyday English. Attorneys have a tendency to use words you do not know, or use language that is tortured and drawn out. Never, never, never be afraid to say, “I don’t understand your question. Can you repeat that?” Never answer a question that you don’t understand.
6. Short Answers Are Good Answers
Short answers are usually the best answers. Be sure to answer all questions directly. But give as concise an answer as possible. The best answers, whenever possible, are, “Yes”, “No”, “I Don’t Know”, or “I Don’t Remember”. Of course, if you answer that you do know something or cannot remember information, be sure your response is honest.
7. Do Not Volunteer Information
Try not to volunteer information. Wait until the entire question is asked – then answer it and stop talking. Most people want to be helpful. Immigration court is neither the time nor place to volunteer information. The more you provide unsolicited information, the more you risk losing control of the direction of your testimony, especially when you offer responses that you are unsure whether they help or harm your case. It’s far better to keep your answers succinct and let the government attorney ask you specifically about things they want to know more about.
8. Do Not Guess Or Estimate
Don’t guess or estimate. Unless you are asked to do so, never guess or estimate in your answer. If you know the answer as an approximation, be sure to say, “I’m guessing that” or “I estimate that”. For instance if you’re asked when did you first enter the country, and you are not sure if it was in 1987, 1988, or 1989, claim your uncertainty. A good response would be, “I’m not exactly sure, but I think it was 1988.” When you state your answers in such a manner, you avoid later accusations that you were trying to shade the truth.
Some individuals think they need to have an answer to every question. But it is unlikely you will have the answers to everything asked. You do a disservice to yourself and your case if you testify to facts about which you have little or fuzzy knowledge. Stick to facts and only testify on matters about which you personally know. It is vitally important for you to be as honest, straight forward, and sincere as possible in your answers.
9. If You Make A Mistake, Admit It
If you make a mistake, admit it. Then correct it. No witness has immediate and completely accurate recollection of every fact, detail, or conversation. If you’re confronted during the hearing with a document or prior statement which conflicts with testimony you gave a few minutes before, do not hesitate to say,”I made a mistake.”
10. Listen To The Question Carefully
Listen to the question carefully. Let the government attorney complete his question before answering. You might think you know the question being asked, but find out it is not what you assumed. Your answer may seem odd and out of place. The judge may strike it as being unresponsive. This type of behavior could ignite the ire of the judge and predispose his perception of your truthfulness. Moreover, untimely interjections can negatively affect the accuracy of the hearing transcript, which can harm your challenge of an adverse ruling if you subsequently file an immigration appeal.
11. Do Not Exaggerate
Don’t exaggerate. When you’re discussing your personal circumstances, don’t try to embellish your case in the hopes of procuring judicial pity.
Here’s an example taken from clients visiting my Riverside immigration law office.
Q: “When you go home, can you get a job?”
A: “No, I can’t get a job.”
A: “I’m too old.”
Q: “How old are you?”
A: “I’m 37.”
Q: “Do you have any skills?”
Q: “Well did you ever have work before?”
Q: “What did you do?”
A: “As a cashier.”
Q: “Well you got a skill.”
Rest assured, the government attorney and immigration judge are going to ask about it.
Do you think they are going to believe there are no stores or cash registers in your home country?
12. Do Not Minimize Your Situation
Do not minimize your situation. Although you should not exaggerate your circumstances, you should not minimize them either. Describe your situation as clearly and concisely as possible.
For instance, using the example above, if the only option is to move to a rural area of your home country, where there are no modern stores located for 20-30 miles, explain why this is your only option for relocating there, the distance to the nearest urban center, the limited options for traveling back and forth to home and work given the distance, and the lack of jobs using contemporary technology near your anticipated residence.
This requires knowing both what you plan to testify about and why such information is important to your case. This requires advance preparation. You will greatly undermine your chance for success when you take the stand in immigration court and you do not understand what you are trying to prove or how to prove it. Your testimony is likely to ramble into irrelevant areas which do not benefit your claim for relief from deportation or request for permanent resident status.
Many immigration judges are less than patient with drawn-out testimony from immigrants. Given the huge and increasing backlog of cases piling up, your failure to stay on track is unlikely to curry favor from the bench.
13. Do Not Try To Memorize Your Story
Do not try to memorize your story. Just tell it to the best of your ability. Don’t put undue pressure on yourself to be perfect.
Prior to the date of your testimony, imagine being in court, placed under oath, answering questions about your case. Do not worry about remembering a specific way to respond to them. If you try, and questions are not asked in the format memorized, or questions are asked that you did not anticipate, you will lose your composure, become confused, feel increased stress, and possibly forget to talk about the key issues you want to share with the judge.
Simply answer the questions to the best of your ability. Do not attempt to analyze why you are being asked this question, or what the next question will be, or what you will be asked in ten minutes. Respond to each inquiry, in as concise manner as possible, as if it were the first, last, and only question you will be asked. Answer as authentically and honestly as possible – not as a programmed robot regurgitating pre-formulated replies.
Before closing, allow me to emphasize the most important component of your merits hearing is YOU and the impression you present. If you give the appearance of being honest and genuine, your case will move forward in an easier and smoother manner.
And if you follow the suggestions outlined above, your testimony can have a positive influence on the outcome of your case.
Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .