Last week, I won an asylum case thanks to a good closing argument. The lead respondent was a woman from Ethiopia. She had been arrested a few times in her country, and faced persecution in prison. In many ways, it was a standard-issue case–the type of case that cynical judges and DHS attorneys tend not to believe. And the case was not going well—the DHS attorney had raised some legitimate questions about the plausibility of the woman’s story. After her testimony, the DHS attorney and I spoke during a brief recess. We both agreed that the IJ was leaning heavily towards a denial based on implausibilities.
Closing arguments are not always my strong suit, but that day, I gave an argument that did the trick. The IJ listened to what I said, and he granted the case.
Throughout my career, I’ve been fairly indifferent to closing arguments. At least one judge I practice before does not allow them, and I’ve generally felt that closing arguments rarely make a difference. Over the years, though, I’ve come to believe that a good closing can persuade the judge, and there are a few techniques that I’ve found to be effective.
First and foremost, a good closing argument should address the weakest parts of your case—it is crucial not to ignore or hide from the weak points of the case. Rather, these points must be confronted directly. As you listen to the DHS attorney’s (and the IJ’s) questions, you should gain a pretty good understanding of what they perceive as the weak points in the case. You need to mitigate these weaknesses and explain to the IJ why they should not sink the case. For example, in my case last week, the IJ questioned the alien about how her husband could work for the government and, at the same time, join an opposition political party. Using record evidence (in this instance, the State Department Country Report), I argued that several well-known opposition leaders worked for the Ethiopian government. My client also misspoke during cross exam and gave the wrong date for her husband’s arrest. I mentioned her error and pointed out that she gave the correct date during direct examination. I also noted that she quickly corrected her mistake on cross, and that this was the only inconsistency in her testimony. Of course, to effectively address the weak parts of your case, you need to pay close attention to the IJ and the DHS attorney. You generally cannot prepare the closing in advance; it will be shaped by the testimony and questions at trial.
Second, a good closing should remind the IJ about the legal standard and show how your client meets that standard. In my case, the client was unable to get some evidence that the IJ wanted to see. I reminded the IJ that, under the REAL ID Act, my client was only required to obtain evidence that was “reasonably available.” I then explained why the missing evidence was unavailable.
Finally, you should discuss the strong points of your case. This is probably the most obvious thing to do during closing, but it is also—in my opinion—the least important. Usually, the strong points of the case are apparent. Also, asylum cases that are denied tend to be denied for lack of credibility. Findings of incredibility are based on the weak parts of the case. Once a client is found not credible, the strong parts of the case become irrelevant (who cares if you say you were tortured in prison if the IJ has found your testimony incredible). That said, it is a good idea to remind the IJ about the strongest parts of your client’s case.
Well, those are some thoughts on closing arguments. I still believe that in most cases, they do not make much difference. But after last week, I am convinced that sometimes they can turn a denial into a grant.
The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”
