regarding the admissibility of expert testimony in removal proceedings which are immigration court proceedings and perhaps more broadly in administrative hearings generally the mr chen one and then the government came back how many months later  i actually don't remember the exact number of months with the leaders as i believe was beyond the ninety day motion to reopen and the ninety days applies to them as well as it does the petitioners as i understand it the argument by the yes judge but as i understand the government's argument was that this was new evidence the evidence from the forensics dr laboratory in other words the report from this wouldn't was new evidence and therefore well it's always new after seventy unless it couldn't have been obtained earlier did you argue you didn't have an opportunity contest the reopening did you well as i understood it there was no way for me to argue that it was you know the case was that that is what in other words i argue that they should not be the government should not be permitted to present evidence on the ninety day point night i know that's not brief but i do know that that is in the record ok making it due process challenge here that the fact that ms wootan didn't have her notes and couldn't really go into a lot of detail presenting due process problem  precious really it couldn't be as well a substantial evidence problem that you couldn't shouldn't credit the kenyan well that's right i mean my argument is that the testimony should not be accepted at all but alternatively argued that her testimony should not have been given so much credit and so in there are cases where for example on hearsay testimony which is admissible in administrative hearings it has been stated i believe by this court that that the hearsay nature of it should mean that it should not be given as much weight although it is still in the civil i'm not sure actually that the government talks about the fact that the immigration judge has decided this from the lay person's perspective and when you look at the reasoning of the immigration judge how not so clear that she relied upon these expert opinions talks about people in china and  you know the likelihood that a stamp would be similar is nil in the court's opinion document a china subject a fabrication a fraud and china has a large population the stamp would have been used numerous times i mean to me the i j was that she didn't seem to understand the possibility that there was more than one stamp so tired decision to me just has no foundation in the entire argument is whether there could be more than one statement but this is one where you as you know that the decision goes and do much greater detail than most of the decisions i see yes and it seems to say that look there's basically a contest of experts between and herbertson and the court chose and that's subject to clear error and they don't have enough to say that there's clear error here that's right but my argument is that there should be some kind of a bare minimum standard for the admission of expert testimony so we do know that more evidence is admissible in administrative hearings than would be admissible in a criminal or civil hearing there's no how about that however there must be some limit to what is acceptable and thus far at least in the removal context there's been no definitive minimum requirements and so i believe that federal rule seven o five should be should be found to be encompassed within the the concept of due process and fundamental fairness at a bare minimum an expert should be required to testify as to the data or facts underlying his or her opinion if essentially an expert can simply state a conclusion then they have made themselves immune from cross examination and there is no way for a fact finder to evaluate the opinion or the ultimate conclusion that is reached by examining the ed and it was that's expert who was subject to cross examination right was i cross examine this woman but i could not cross examine her regarding the data and facts underlying her opinion she could simply state her opinion and had no way of establishing how she reached that conclusion the engine testified that you had it on a spectrum comparative and she looked at  marks that were the same on both stamps eight years apart eight years apart that couldn't have been made by stamps from different coming from a different manufacture she did testify as to that but the problem is that we don't know what mark she's talking about we don't know whether she even is aware of which document she's testifying regarding because we can't establish based on her testimony what what stamp impressions she's looking at because their impressions were presented here in other words the actual stamps that you looked at were they there that if you do them in the record the the report from the government's expert states that documents should be returned to her five days prior to the hearing so that was not done during during the examination of the government's expert she seemed to suggest that that she couldn't always get the documents back because sometimes the aliens council didn't return the documents of course that wasn't the case i'd return the documents to the office of the district council so they could have provided documents to her so this entire problem could very easily have been avoided by the government the alien my client has no way of avoiding this evidence jury problem so if the document was returned or if miss wouldn't had done what my expert witness had done which was to produce large magnified images of the stamp and presented them to the court and kept them in a file so as to be capable of testifying as to how he she reached her conclusion then there there would be no issue if we were to ruin your favorite under the current circumstances a document examiner such as ms wouldn't be able to testify in the future proceeding because they don't make records contemporaneous with their examination so that they can maintain their credit ation with this superseding agency is  there well they should take notes so that they are able to explain how they reached their conclusions so they certainly could maintain their accreditation and in fact they should not be accredited because they're not keeping notes in accordance with the requirements of their accreditation but regardless they could simply follow the procedures that meet this accreditation requirement if they if they would like to continue to testify in court proceedings and be accredited so i mean essentially the immigration cases are viewed as second class cases administrative hearings are not important to this forensics document laboratory they take detailed notes on criminal cases and they take none in administrative hearings nor they even  copy of the document so they could discuss it at the hearing and so i don't believe they should be allowed to testify to as to only their conclusion you were able to explore that shortcoming called a short and we were able to explore that in great detail after hearing and pointed out to the immigration judge weren't you i was able to explain what the images produced by my expert showed  but the as the government's expert had stated that there were other facts that were not displayed by the images that we had before the court there's no way for the the court to to analyze those statements and compare them to the images that were presented to the court but isn't part of the problem that herbert's and didn't rule out that the stamps featured on the receipt in the notice were could have been produced with the same stamp within a short period of time rather than years apart while i don't think that's a problem if it is impossible to determine whether the stamp impressions came from one or more stamping devices then the conclusion that the that the impressions were choose it was and therefore the the bill you have to climb on appeal is more significant than than it would be otherwise the presumption she's allowed to do that because the presumption goes away as long as it wasn't clear error that made that is the standard i understand and i believe that that's why i believe this the government's report should be struck from the record and that any expert witness whether it's for the remain and for further evidence to come in because i mean how can we say that necessarily the the government report house was testimony has to be struck in the rec there's holes in it by virtue of the notes not there but you also were able to cross examine on that and from the from what i can read did a very good job well i was able to ask her how she reached that conclusion but without looking at the actual data there's no way for the judge to determine what actual data you're talking about mozart the data what notes on the data but this actually she's reaching her conclusion by looking at the stamp impression it's a visual it's a visual examination and by looking at the you know by looking at where the ink is placed on the on the impression and where any extraneous marks are placed the which she wasn't she is capable of being a testify as an expert in this area as you know as yes or parts of capable as long as she reveals the underlying facts and i believe that the actual marks that she is referring to which is how she drew her conclusion are underlying facts that must be revealed for her to give her conclusion credibility and i think you point out that there is no real stepping back and saying ok given all this what do i that's right as i understand it the b i a president of matter o d in which there was a a a conclusion that undocking was fabricated still to be i looked at the entire record before making its credibility determination so here we have a disputed i believe a report that a doctrine is fabricated and the entire record before making her adverse credibility determination and if you look at all she did not make it ever screwed ability trilogy i thought well nick least she did not well the finding of the finding of fraud suggests that she found the claim no longer credible so i mean i thought she was very careful in how she did that in order not to make every scrap of deliberation well not based on the entire record but the ultimate conclusion must consider the entire record not only this this one allegation of fraud in the government report for my time sustained this is the same judge who made the first decision it is the same movement yes and how can you how can you logically conclude that she didn't consider the entire record she's now he minute she had the entire record i mean she was us president the creation she was but the decision refers only to the government report that she believed this document was fake and then the i j a issues her decision denying the claim so the by the clear words of the decision it does not appear that she considered the entire record and believe that all she had to consider was the expert report it please the court i'm paul fearing for the respondent judge him you started off with him you mentioned the substantial evidence standard of review i think that's a good place for the court to start maybe if we could start early on on this one if you oftentimes if europe a petition or who is seeking asylum and you lose and you don't file within ninety days they just say too late that's it here you filed the petition to reopen or application reopen five months afterward so you were sixty days late and it would seem that if there were a concern about the forensic of validity of these two documents why could this not have been discovered at the time of the hearing two thousand and four well you'll notice your honor that the immigration judge refers to the two thousand and four state department country report and that did not exist at the time of the first chairing that's part of the new evidence that prompted the i believe prompted  reopen but could you have was there any suspicion that these two documents eight years apart were fabricated prior to the here i don't know from the record but once the so i don't know the exact sequence of what happened but i can tell you that it looks a lot like it was a state department report not available at the first hearing which is what prompted d h h s to move to reopen the v i i says that the i g credited wooten's testimony and adopted her opinion where in the eye jay's reasoning does she say that she adopts and why i don't think it's the so similar that one could conclude that they were made with the same standing is that what i should do when presented with expert reports say from a layman's perspective now that was just that was just one of one of the bases ok one of the other bases she said that if she did decide it was highly unlikely that a stamp would remain so similar after eight years and when she says that yes she is tracking what miss wooten says she said it's unlikely that two separate agencies would use similar stamps eight years apart but doesn't she need to base her decision on if she's going to choose wooten over herbertson baser decision on specific items testified to by woman rather than glean remain the same after eight years is based on witness testimony because what woman testified to is we have these two stamps that were allegedly made eight years apart i've looked at them and they look so close to me that i'm sure that they were made consecutively or within a few stamps of each other well that's why you have an expert and then she says given the fact that china has a large population and like this would have been used numerous times over eight years well you know who knows well the judge is  they have to see an expert they have to base it on scientific methods and it has to fit what they're attempting to testify about so why would that make sense here because this congress hasn't made that congress hasn't applied the federal rules and  to immigration cases and gives the i j s a chance to to find those facts that doesn't require them to follow the strict guidelines of the federal rules but we could we could adopt that could we know similar to what the seventh circuit junction before this court to reverse the finding of the board but judge judgment calls point is it is very basic if you've got these persons in front of you and we're not quite sure that the j has really look at the testimony of the person on whom you think she's relying should we not remained at the very least now because you don't have any evidence in this record to compel the conclusion that those you're trying to overturn the decision so therefore it's your burden to show that in fact there were forged documents that has to be your bird i can't be burden on them to show that they're not yes but i'm talking about i mean if you look at the board decision well i guess the judge is not clearly or in finding that the entire asylum claim lacked credibility immigration's judge fact by including crediting the d h s s expert opinion is not clearly erroneous and i think judgment de saying that she one could conclude she doesn't say i credit wouldn and therefore these were made second given action is a very large population sam like this would have been used numerous times over eight years and would have to show we are in terrible and i don't think there was any expert testimony that could have been put in the drawer third the documents would have been stand by two separate agencies fourth china subject widespread fabrication and for me to my mind she's she's coming up with her own commonsense layman reasons why you know you know i'm happy she's throwing the experts out the window should she doesn't cite any of their opinions as being really probative of fraud or not i don't i think i understand your point your honor i respectfully disagree i think that when you look at the five reasons she gave it is quite obvious in the court can have no other possible conclusion but that she credited what dr wooten said because dr wooten said these two documents are not what they appear to be only by reaching that conclusion for the i j a of possibly decided to deny asylum  and given all of these facts especially with the state department report which appears to have under which underpinning the entire government's case below the petitioner has met his burden at this juncture to show that the evidence record compels a conclusion but what we're talking about is the process i mean it's not it's not that you lose you may still ultimately prevail but based on what we have here i mean it looks like there were holes in terms of what the i j a dealt with at this hearing and that's one reason why the b i a did a more comprehensive job than it normally does but what would be the harm if we were to remain and and say you've got  basis again the standard of review that the facts have to be compelling that the evidence record supports a conclusion these documents are authentic that's what you need to reverse this is a factual course without that our position is that the indeed say her opinion is worth less because she can't remember and doesn't know the specifics certainly and you could also come to a different conclusion you could you could look at her testimony apply you know we don't have that we have this you know one could conclude and there that they have to be used more than once you know eight years apart they have to show wear and tear i you know this sounds like a kind looking at something and saying well you know it just doesn't sound like it's based on the expert that's what's what judges do they way evidence and she decided she cited the both testimonies she cited credit one of the other i mean it's very difficult at this juncture for the notes were not before he was brought up there were no notes for him to even cross  examine i don't see that was the due process part i think it would go down to the weight of he was certainly able to ask ms wooten you don't have your notes in front of you pointed out to the judge argue that of the judge was also able as he did to bring in his own witness who had notes presumably and who was able to do every type of examination that the ms wootan didn't do put on his case the fact that he didn't win the fact that he didn't prevail before the fact that he couldn't rebuttal i think the problem with just remaining the case and saying that the judge has to actually consider the opinions of the experts is that if if the expert is allowed to simply state a conclusion then we could end up with a result that both parties could simply present an expert who would simply state where he or she got his degree from and his conclusion and then  the or they could get another expert well that's true they could but what it appears is that you have an expert who works for the department of homeland security who was trying to deport an alien applying for asylum and that expert simply states his conclusion and without supplying the underlying facts and the judge accept that conclusion over the conclusion of an expert who disagrees and has stated those the facts on which that conclusion  and so i just think it seems an unfair result if the government can simply say its conclusion and and simply win the case thank you thank you c