Angov v. Holder
2013 U.S. App. LEXIS 24116
9th Cir.2013Background
- Nikolay Angov, a Bulgarian citizen and ethnic Roma, sought asylum in the U.S. alleging repeated police persecution in Bulgaria; he submitted two Bulgarian subpoenas as supporting documents.
- The immigration judge (IJ) allowed the government to obtain a State Department overseas investigation summarized in a Bunton Letter concluding the subpoenas and some address claims were likely forged or incorrect; the letter enclosed photographs.
- Angov submitted rebuttal evidence (photos, maps, a letter from a purported Roma NGO director) and objected that he was denied the right to cross-examine the consular investigator; State declined to provide more detail citing policy.
- The IJ admitted the Bunton Letter, found Angov not credible, and denied asylum, withholding of removal, and CAT relief; the BIA adopted and affirmed the IJ’s decisions and denied Angov’s motion to remand to add a Sixth Circuit opinion as new evidence.
- Angov appealed to the Ninth Circuit claiming statutory and constitutional violations (right to examine/cross-examine evidence; due process), and that the BIA abused its discretion in denying remand.
Issues
| Issue | Angov's Argument | Government's Argument | Held |
|---|---|---|---|
| 1) Motion to remand denied by BIA | Alexandrov evidence shows consulate misconduct; remand needed to supplement record | Motion lacked evidentiary support and did not state new facts per 8 C.F.R. §1003.2(c) | Denial of remand was not an abuse of discretion; motion insufficiently supported |
| 2) Right to examine/receive evidence under 8 U.S.C. §1229a(b)(4)(B) | Admission of Bunton Letter denied his right to examine and cross-examine investigators | Bunton Letter was provided and government made reasonable efforts to produce a witness; State policy prevented release of further detail | No statutory violation: petitioner had the letter and chance to rebut; government made reasonable efforts |
| 3) Due process challenge to admission/reliance on Bunton Letter | Letter is unsworn, multiple-hearsay, lacks investigator identity/methods — relying on it violated due process | Due process does not forbid admission of informal administrative hearsay; Mathews balancing favors preserving efficient consular investigations; presumption of regularity applies | Due process claim rejected; admission and reliance on Bunton Letter within IJ’s discretion and supported by substantial evidence |
| 4) Adverse credibility based on asserted forged subpoenas and unverified addresses | IJ/BIA improperly relied on untestable overseas report to discredit Angov | Bunton Letter’s factual findings could be rebutted; petitioner bore burden to corroborate and failed to do so; government’s impeachment evidence permissible | Adverse credibility finding supported by substantial evidence; denials of relief affirmed |
Key Cases Cited
- Richardson v. Perales, 402 U.S. 389 (1971) (administrative proceedings may admit hearsay; due process does not always require confrontation)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (unreliable evidence alone does not mandate exclusion absent improper state conduct; jury/adversary process assesses credibility)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (procedural due-process balancing test)
- London v. Plasencia, 459 U.S. 21 (1982) (distinction between aliens seeking initial admission and those already admitted; limited constitutional protections at border)
- Banat v. Holder, 557 F.3d 886 (8th Cir. 2009) (consular letters lacking investigatory detail can violate due process)
- Anim v. Mukasey, 535 F.3d 243 (4th Cir. 2008) (Bunton letter found insufficiently reliable; due process violated)
- Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir. 2006) (consular memoranda lacking identification/methodology unreliable)
- Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003) (consular report based on multiple hearsay insufficient for credibility finding)
- Lin v. U.S. Dep’t of Justice, 459 F.3d 255 (2d Cir. 2006) (consular reports must meet reliability standards; DOJ investigation guidelines informative)
- Rizk v. Holder, 629 F.3d 1083 (9th Cir. 2011) (fraudulent documents go to the heart of asylum claims; adverse credibility may be dispositive)