Skip to main content Accessibility help
×
Hostname: page-component-74656f9884-p6fvt Total loading time: 0 Render date: 2026-11-03T18:33:06.012Z Has data issue: false hasContentIssue false

Facially Neutral, Quietly Skewed

How Symmetrical Evidentiary Practices Obscure and Exacerbate Power Disparities in Asylum Proceedings

from Part II - The Rules

Published online by Cambridge University Press:  14 October 2026

Bennett Capers
Affiliation:
Fordham University, New York
Jasmine E. Harris
Affiliation:
University of Pennsylvania Law School
Julia Simon-Kerr
Affiliation:
University of Connecticut
Get access

Summary

The principle of facial neutrality in evidentiary rules rests on an appealing premise: that equally applicable standards ensure fairness between opposing parties. However, this premise overlooks the enormous power disparities that can exist between parties. This dynamic is uniquely apparent in United States Immigration Courts, which have virtually no rules of evidence and consequently allow the Department of Homeland Security (DHS) to leverage its institutional advantages against asylum seekers. This chapter takes hearsay as a case study. It examines how the hearsay evidence rule, which prohibits parties from introducing out-of-court statements to prove the truth of what is asserted in those statements, may favor powerful parties when applied symmetrically. Through the specific example of DHS Form I-213, Record of Deportable/Inadmissible Alien, a DHS form that records border interviews, I suggest that the Immigration Court’s permissive approach to hearsay evidence, though it applies equally to asylum seekers and the DHS, enables the DHS to introduce unreliable documents produced through coercion while affording those documents presumptive credibility.

Information

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Book purchase

Temporarily unavailable

Save book to Kindle

To save this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×