Igor Bondarenko v. Eric H. Holder Jr.
2013 U.S. App. LEXIS 21719
| 9th Cir. | 2013Background
- Bondarenko, a Russian citizen, seeks asylum, withholding of removal, and CAT relief in the U.S.
- He alleges police beatings and head injury in June 2002 due to antiwar activism; hospital records exist.
- IJ found Bondarenko not credible, largely based on a forensic report alleging the medical document was fraudulent.
- The government introduced the forensic report at the July 2007 hearing without prior notice to Bondarenko or cross-examination of the author.
- Bondarenko sought a continuance and an opportunity to investigate the report; the IJ denied the continuance.
- The BIA affirmed the IJ’s adverse credibility finding; this court grants the petition and remands for a new opportunity to investigate the forensic report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process in forensic report introduction | Bondarenko: denial of continuance violated due process | Holder/Agency: no due process violation; admissible forensic report | Due process violation; remand for investigation opportunity |
| Effect of dubious medical document on credibility | If credible, Bondarenko suffered past persecution; forensics undermines credibility only if authentic | Forensic report supports fraud finding regardless of authentication | Centrality of document undermines credibility; remand to reassess |
| Past persecution requirement | Harm from detentions and beating constitutes past persecution | Harm not severe enough to constitute persecution | Bondarenko likely suffered past persecution; remand for proper factual consideration |
| Disclosure of asylum information in investigations | Government disclosed asylum-related information to Russian authorities | Forensic report itself states confidentiality was respected | Not resolved on record; remand for fuller review |
Key Cases Cited
- Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009) (forensic reports must be disclosed and cross-examined; due process)
- Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007) (asylum authentication may be shown by testimony; no affirmative duty to authenticate every document)
- Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) (due process requires a reasonable opportunity to present evidence)
- Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006) (harm must be evaluated to determine if it rises to persecution)
- Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004) (comparison of past persecution scenarios; factual sufficiency review)