Post-hearing polygraphs and medical exams not newly discovered evidence
Today’s Ninth Circuit decision reminds us that the time to be creative in the gathering of evidence is before, not after, the hearing.
In Goel v. Gonzales, the Ninth Circuit declined to overturn an administrative finding that an applicant for asylum lack credibility. The credibility finding was based upon inconsistencies between documentary evidence submitted by the applicant, and the applicant’s testimony.
The Court also upheld the denial of a request to reopen the evidence in the matter on the basis of newly discovered evidence. The “new” evidence consisted of the applicant’s polygraph examination, taken after his application had been denied, in which he was found to be truthful, and also, a medical report stating that the applicant’s scars could have been caused by the torture he described in support of his application. The Court found that such evidence was not newly discovered, as the applicant could have undergone the polygraph or medical examination prior to his hearing, so that such evidence could have been presented then. The Court noted the applicant had not been in custody, and thus, had been free to gather such evidence as he desired to present.
