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.
