Angov v. Holder
788 F.3d 893
| 9th Cir. | 2013Background
- Nikolay Angov, a Bulgarian citizen and claimed Roma, applied for asylum after alleging abuse by Bulgarian police; immigration judge (IJ) admitted a State Department "Bunton Letter" reporting consular investigation findings that cast doubt on Angov’s documentary evidence (subpoenas and addresses).
- The Bunton Letter reported errors in the subpoenas (wrong officer names, case/phone numbers, nonexistent room numbers, improper seal size), inability to verify addresses, and included photographs from the consular visit.
- Angov submitted rebuttal materials (photos, maps, a neighborhood article, and a letter from a purported Roma NGO director) and objected that he was denied cross-examination of the consular investigator.
- The government sought to produce a State Department witness; State declined to provide further investigation details citing internal policy; IJ relied on the Bunton Letter to make an adverse credibility finding and denied asylum, withholding, and CAT relief; BIA affirmed and denied Angov’s motion to remand.
- Angov appealed, arguing statutory and constitutional violations (right to confront evidence and due process) and that the Bunton Letter was unreliable and inadmissible; the Ninth Circuit denied the petition, upholding the admission and reliance on the Bunton Letter and the adverse credibility determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admitting and relying on the Bunton Letter without cross-examining the investigator violated due process | Angov: admission of unsworn consular letter deprived him of procedural due process and meaningful opportunity to confront witnesses | Government: as a non-entrant seeking admission, Angov has no constitutional procedural due process rights equivalent to entrants; statute governs procedure | Court: Angov (a non-entrant) lacks constitutional due process protections invoked; due process claim fails |
| Whether admission without producing the investigator violated statutory confrontation and evidence-examination rights (8 U.S.C. §1229a(b)(4)(B)) | Angov: he was denied his statutory right to cross-examine the sources of the Bunton Letter; government should have produced a State Dept. witness | Government: it made reasonable efforts to produce a witness but State Dept. policy prevented further disclosure; petitioner had opportunity to examine and rebut the letter | Court: government made reasonable effort; statutory rights not violated—admission permissible |
| Whether reliance on the Bunton Letter is permissible under substantial-evidence review | Angov: such multi-layered hearsay consular letters are inherently unreliable (Second Circuit rule) and cannot support an adverse credibility finding | Government/IJ: consular reports are routine, presumptively regular, and may be weighed by IJ; petitioner bears burden to rebut | Court: substantial-evidence standard deferential; Bunton Letter sufficiently probative and, given petitioner’s poor rebuttal, supports adverse credibility finding |
| Whether BIA abused discretion by denying Angov’s motion to remand/supplement the record | Angov: submitted Sixth Circuit opinion and argued a pattern of consular impropriety meriting remand | Government: Angov failed to meet procedural requirements for remand (no supporting evidence or explanation) | Court: BIA did not abuse discretion; motion deficient under reopening/remand rules |
Key Cases Cited
- Lin v. U.S. Dep’t of Justice, 459 F.3d 255 (2d Cir. 2006) (consular letters lacking investigator identity, methodology, and verification methods are unreliable under substantial-evidence review)
- Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009) (statutory right to examine evidence and cross-examine witnesses; government must make reasonable effort to present witnesses)
- Rizk v. Holder, 629 F.3d 1083 (9th Cir. 2011) (adverse credibility determinations reviewed for substantial evidence)
- Singh v. INS, 134 F.3d 962 (9th Cir. 1998) (articulating the strict substantial-evidence standard limiting appellate reweighing of evidence)
- Richardson v. Perales, 402 U.S. 389 (U.S. 1971) (administrative proceedings are not constrained by formal rules of evidence; hearsay may be admissible)
- Abovian v. INS, 257 F.3d 971 (9th Cir. 2001) (discussing practical limits on investigating foreign events and prevalence of fraud in asylum claims)