Discovery in Removal Proceedings
Date of Information: 07/15/2025
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Why Discovery Matters in Immigration Court
Removal proceedings are litigation—and like any litigation, outcomes depend heavily on your evidence and your grasp of what the government may bring to the table. At Charles International Law, we’ve seen strong cases fall apart when DHS produced a surprise document unknown to the client or prior counsel. One unrevealed record can derail an entire asylum claim.
This isn’t just a caution to clients—it’s a critical reminder to attorneys. Clients can forget, exaggerate, or mislead. Your job is to verify, not assume. Effective advocacy demands strategic skepticism.
What makes immigration law unique—and daunting—is its near-total lack of formal discovery rules. Yet the liberty stakes are comparable to criminal law, where robust protections like Brady, the Jencks Act, and Giglio ensure the accused isn’t blindsided. Criminal prosecutors routinely practice near open-file discovery. In contrast, immigration litigants face the prospect of strategic ambush.
That’s why sharp investigative instincts aren’t just helpful—they’re indispensable. In this practice, being a discovery tactician is what separates the truly exceptional immigration attorney from the merely competent.
📂 Step 1: FOIA Requests
FOIA requests are going to be your primary discovery tool in the majority of cases. They are also the most likely to reveal what the Office of the Principal Legal Advisor (“OPLA”) at the U.S. Department of Homeland Security has in store for you.
What It Is:
FOIA is a federal law (5 U.S.C. § 552) that allows individuals to request records from any federal agency, including DHS, USCIS, CBP, and ICE.
How to Use It:
File FOIA requests with:
USCIS for A-files and I-213 records
ICE for enforcement and detention records
CBP for border apprehension documents
Use Form G-639 or submit online through the agency’s FOIA portals
Be specific in your request (e.g., “All records relating to the Respondent’s border encounter on [date]”)
💡Tip:
Always submit FOIA early in the case—the processing time can take months. You can also subpoena ICE counsel if a relevant document is known but not produced.
⚖️ Step 2: Request Document Production from DHS Counsel
Even without formal discovery rules, immigration attorneys can file a motion requesting that the Immigration Judge order DHS to produce relevant documents. This is typically done by filing a Motion to Compel Disclosure under the authority of the court. It’s a focused tool for compelling DHS to hand over specific records, such as:
I-213s
Notices to Appear
Prior orders of removal
These motions are particularly useful when:
DHS has refused to produce key documents already known to exist
You have reason to believe exculpatory evidence is in DHS’s possession
🧾 Step 3: Subpoena Documents from Third Parties
Immigration Judges also have authority under 8 C.F.R. § 1003.35(b) to issue subpoenas. Unlike motions to compel directed at DHS, subpoenas can be used to obtain records from third parties, such as:
Police departments
Medical facilities
Witnesses or former employers
To obtain a subpoena, you must file a motion explaining:
What the document or testimony is
Why it is material to the case
Why it cannot be reasonably obtained otherwise
This broader tool can be invaluable when your client’s case relies on outside corroboration—or when you suspect the government will not provide a full picture on its own.
🧐 Step 4: Use the Jencks and Brady Doctrines
Though not automatic, immigration courts do honor limited discovery rights under the Due Process Clause of the Fifth Amendment:
Brady v. Maryland: You may have a right to exculpatory evidence in DHS's possession, even though Brady dealt with criminal prosecutions. While immigration court is civil, circuit courts have extended Brady-like protections to immigration respondents due to the serious liberty interests at stake.
The Jencks Act: Statements of DHS witnesses (e.g., Border Patrol officers) may be producible if they testify, particularly when credibility is contested.
Courts recognizing this approach include:
Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), which held that while asylum applicants bear the burden of proof, both DHS and the Immigration Judge share a responsibility to ensure the record is fully developed—particularly regarding country conditions and corroborating evidence. The decision underscores that due process applies in asylum proceedings, especially where applicants face barriers like detention, trauma, or lack of resources.
Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007), acknowledged that due process protections in immigration court may be violated by the government’s failure to disclose favorable evidence. Although the case focused primarily on adjustment of status eligibility, it addressed the broader principle that noncitizens in removal proceedings are entitled to fundamentally fair hearings. The court suggested that when the government possesses exculpatory evidence—such as a favorable police report—and fails to disclose it, this may constitute a due process violation, drawing a clear parallel to Brady-style disclosure obligation.
💡Tip:
Cite these doctrines in motions to compel when DHS witness credibility is at issue or when due process is implicated by government non-disclosure.
📖 Step 5: As a Librarian
Few people walk into a brick-and-mortar library these days—but that doesn’t mean librarians have lost their value. Whether through a university, public institution, or even online networks, librarians remain one of the best resources for locating hard-to-find information in public or commercial databases.
In the immigration context, librarians can help unearth:
Historical background on your client’s region
Archived news stories or periodicals
Specialized reports from academic institutions or international NGOs
Data to contextualize and bolster your existing country conditions reports
While this type of research may not always uncover information specific to your client's personal case, it often provides crucial background that can give an IJ context and clarity about the persecution or instability your client has faced. Viewed through this lens, your work with a librarian becomes an extension of your evidentiary development strategy—just conducted a few layers deeper than most attorneys bother to dig.
🕵️ Step 6: Sleuth it Out
While EOIR regulations do allow respondents to take depositions in lieu of live testimony—see 8 C.F.R. § 1003.35(a)—they do not provide for more traditional forms of depositions used to uncover facts, evaluate credibility, or lock in a witness’s narrative in advance of trial. Still, there is no rule preventing you from conducting informal interviews. These conversations can be nearly as effective as the formal process for surfacing valuable details. Also, if what you hear proves useful, you can return to Step 3 and ask the IJ to issue a subpoena compelling the witness’s testimony at the individual hearing.
💡Tip:
ICE officers often refuse voluntary interviews, but sometimes you can get more cooperation from local police or consular officials if your case involves foreign custody or abuse.
🧠 It’s Not (Just) the Size of Your File That Counts—It’s What You Do With It
In immigration court, you are the investigator. Don’t rely on the government to tell the full story. Your evidence-gathering should be active, layered, and strategic—but that’s only the beginning. It’s not just about collecting relevant information; it’s about synthesizing that information into a coherent, compelling narrative that helps the Immigration Judge understand your client’s story in full context. For further guidance on how to analyze the information you've collected, please refer to Charles International Law's other guide and instructional video on The Basics of Investigative Analysis.
✅ Immigration Discovery Checklist
Frequently Asked Questions — Discovery in Immigration Court
1) Is there formal discovery in immigration court?
Not like in federal/state civil rules. But you still have tools: FOIA, targeted motions to compel DHS, and judge-issued subpoenas for witnesses and documents.
2) What should I FOIA, and from whom?
FOIA early and broadly. Typical targets: USCIS (A-file, I-213 if present), ICE (enforcement/detention), and CBP (border encounter packets). Be specific about dates, locations, and identifiers.
3) When do I seek a motion to compel instead of waiting on FOIA?
When you know (or have strong reason to believe) DHS has material records (e.g., I-213s, prior removal orders, NTA variants) and won’t produce them informally. Ask the IJ to order targeted disclosure.
4) Can an Immigration Judge issue subpoenas? What’s the standard?
Yes. Under 8 C.F.R. § 1003.35, IJs can subpoena witnesses and documents. You must state what you expect to prove, show you tried and failed to obtain it, and explain why it’s essential.
5) Can I request a deposition?
Depositions are permitted in lieu of live testimony when a witness isn’t reasonably available and the evidence is essential; the IJ controls scope, method, and any document production. 8 C.F.R. § 1003.35(a).
6) What filing deadlines should I plan around?
The IJ sets deadlines. EOIR practice guidance generally expects filings 15 days before a master calendar if you want a ruling then; individual-hearing timelines vary (often 30 days in advance for unrepresented respondents). Always check the order in your case.
7) How do I serve and enforce an IJ subpoena?
Service can be by any non-party adult. If a witness refuses, the IJ may ask the U.S. Attorney to seek a district-court order to compel compliance. 8 C.F.R. § 1003.35(b)(5)–(6).
8) Do “Brady-like” disclosure principles apply in immigration court?
Immigration proceedings are civil, but due-process principles can require disclosure of exculpatory or material evidence in DHS’s possession; failure can violate fundamental fairness. Use this in motions where credibility or liberty interests are at stake. See the duty to develop a complete record in Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997).
9) Can I introduce new exhibits close to the hearing?
Exhibits are subject to the IJ’s deadlines and discretion. Late filings typically require good cause; objections can be made at the hearing. Plan backward from the IJ’s scheduling order.
10) What if I suspect a key record (like an I-213) is inaccurate?
Use layered strategy: FOIA the source agency, move to compel DHS production of the complete record, and—if necessary—seek a subpoena for the author or custodian to address reliability, translation, or coercion issues.
11) Can I subpoena third-party institutions (police, hospitals, employers)?
Yes. Subpoenas may reach non-government custodians if the evidence is material and otherwise unavailable with diligent efforts. 8 C.F.R. § 1003.35(b); EOIR Practice Manual § 4.20 gives application mechanics.
12) What’s the judge’s role in building the record?
While respondents bear the burden, the IJ (and DHS) share responsibility to ensure necessary country-conditions/background evidence is in the record when central to the claim. Matter of S-M-J-.
