(B)  Paroling Foreign Witnesses into the United States.  Foreign witnesses who are United States citizens or Lawful Permanent Residents, can enter the United States lawfully because their nationality and immigration status allows them to do so.  A visa such as a visitor’s visa may also allow them to enter to attend court.  If they do not have lawful U.S. immigration status and cannot obtain a visa, however, because they are inadmissible, it will be necessary to seek to have them paroled into the United States.  The DHS Secretary has authority to parole a noncitizen into the United States to testify without admitting the witness in immigration status.[211]  See § 15.14, infra.  The person will not be paroled if s/he constitutes a security risk or a risk of failing to appear as required or leave the United States after testimony has been concluded.[212]  If the witness is a cooperating witness, providing important information to the prosecution in a state or federal case, it may be possible to have the witness admitted to the United States by obtaining an “S,” “T,” or “U” visa.  See § § 24.15-24.17, infra.[213]

 

                To request parole, obtain Form I-131 from the U.S. Bureau of Customs and Border Protection.  The parole is for 30 days, beginning with the witness’ arrival in the United States.[214]  It can be extended, however.

 

                If the government refuses to admit the witness, the witness may still not be considered “unavailable” under Federal Rule of Evidence 804(a),[215] but the government may be violating due process by preventing defense access to exculpatory testimony.[216]

[211] 8 U.S.C. § 1182(d)(5); 6 U.S.C. § 551(d)(2); see 8 C.F.R. § 212.5(b)(4); § 15.14, infra.

[212] 8 C.F.R. § 212.5(b).

[213] See generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law § § 12.27-12.32, 354-355 (2d ed. 2006).

[214] 8 C.F.R. § 212.14(a)(2)(iii). 

[215] United States v. Pena-Gutierrez, 222 F.3d 1080 (9th Cir.), cert. denied, 531 U.S. 1057 (2000).

[216] See United States v. Theresius Filippi, 918 F.2d 244 (1st Cir. 1990) (prosecutorial misconduct intentionally to obstruct compulsory defense process).

Tenth Circuit

REMOVAL PROCEEDINGS - VIENNA CONVENTION
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that the INS's failure to apprise him that he was entitled to communicate with Mexican consular or diplomatic officers under the Vienna Convention and immigration regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations and 8 C.F.R. 236.1(e), on grounds the argument was waived because he failed to assert the issue before the IJ, and, in any event, Torres could not show that the violation resulted in any prejudice).

Other

BIBLIOGRAPHY - INVESTIGATION - FOREIGN INVESTIGATION
Ross Garber, Gathering Defense Evidence Abroad, 33 The Champion, No. 8, p. 22 (Sept.-Oct. 2009).

CRIMINAL DEFENSE - INVESTIGATION
L. Friedman Ramirez, Federal Law Issues in Obtaining Evidence Abroad, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 273 (2d ed. 2007).

BIBLIOGRAPHY
Extradition and Foreign Evidence Blog http://obtainingforeignevidence.blogspot.com/