Tooby's California Post-Conviction Relief for Immigrants

(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.[218]  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.[219]  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 N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 24.15-24.17 (2007).[220]

            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.[221]  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),[222] but the government may be violating due process by preventing defense access to exculpatory testimony.[223]

[218] 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.

[219] 8 C.F.R. § 212.5(b).

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

[221] 8 C.F.R. § 212.14(a)(2)(iii). 

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

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