No. of Recommendations: 5
As the prosecution, does the DHS have to assemble a case on why asylum should not be granted? And in that role has to gather evidence to support its case?
Probably not, at least for the overwhelming majority of cases. Asylum, in this context, is a defensive claim - the person is claiming that because they meet the criteria for asylum, they should prevail in their removal proceedings and be permitted to remain in the U.S. as an asylee. The burden of proving that will be on the claimant. So I would expect most of the 'vanilla' cases will simply turn on whether there's sufficient evidence to support the individual's claims or whether those claims meet the categories of persecution necessary to qualify under the statutes. For most cases, I doubt the DHS needs to assemble too much affirmative evidence of their own. Plus, so many of these asylees are coming from the same handful of countries, making the same claims, that the 'vanilla' cases will often share a whole lot of similar facts. After doing a few thousand asylum hearings for families fleeing Guatemala, both the DHS officials and the immigration judges themselves will have a pretty solid understanding of the circumstances that asylees will cite in their arguments.
Undoubtedly there will be cases that are more complex, with either claimants or arguments that warrant assembling affirmative evidence on behalf of DHS' position. So I'm sure that there are cases where the DHS does put together a case in those hearings.
Immigration courts aren't Article III courts - they're administrative proceedings, so the formal rules of evidence and procedure don't apply. Generally, those proceedings are less formal, and probably more conducive to a non-lawyer DHS official being able to adequately present the government's position. But I am not an immigration lawyer, so I don't know the details.
