Lead Opinion
OPINION
Five other circuits have held that an immigration judge violates due process or the immigration laws by relying on a State Department investigation of an asylum petitioner’s claim. Do we fall in line?
I. BACKGROUND
Nikolay Angov, a Bulgarian citizen, claims he was persecuted by the Bulgarian government because he is Roma.
An IJ conducted asylum hearings in early 2004, during which Angov presented several documents, including two Bulgarian subpoenas that ordered him to appear at a Sofia police station. The IJ allowed the government to obtain a State Department investigation of Angov’s allegations. See 8 C.F.R. § 208.11. The investigation was conducted by our consulate in Sofia, and the results were summarized in a letter signed by Cynthia Bunton, Director of Department of State’s Office of Country Reports and Asylum Affairs.
The IJ admitted the Bunton Letter, which stated that the Embassy had contacted “an official in the Archive Department at the 5th Police District in Sofia.” The official found a number of errors in the subpoenas, suggesting that they were forgeries: (1) Three officers named in the subpoena — Captаin Donkov, Lieutenant Slavkov and Investigator Vutov — never worked for the police department; (2) the case and telephone numbers were wrong; and, (3) although the subpoenas mentioned room 4 on the second floor of the department and room 5 on the first floor, there are no rooms by those numbers. The official also explained (4) that the seal on the subpoena was too small.
Bunton also stated that the embassy investigator (5) was unable to locate An-gov’s claimed past residences; and (6) that the neighborhood where Angov lived was only twenty to thirty percent Roma, where Angov claimed that he lived in a “gypsy neighborhood.” Attached to the letter were five photographs of the places the investigator had visited while trying to verify the addresses.
Angov’s industrious lawyer submitted a plethora of rebuttal evidence, including photos, maps, an article about Angov’s neighborhood and a letter apparently signed by someone named Daniela Mihay-lova, who identified herself as the legal programs director of a Roma human rights organization in Bulgaria. Angov also argued that, without the opportunity to cross-examine the investigator, the admission of the Bunton Letter would violate his statutory and constitutional rights.
In response to Angov’s objection, the government attorney asked the State De
Based on the Bunton Letter, the IJ made an adverse credibility finding and denied Angov’s applications for asylum, withholding of removal and relief under the Convention Against Torture. The BIA adopted and affirmed the IJ’s ruling denying relief, and his determination that the subpoenas are fraudulent. The BIA also denied Angov’s motion to supplement the record with a recent Sixth Circuit opinion that Angov claimed constituted new evidence of a “pattern and practice” of lawbreaking by officials in the Sofia consulate. See Alexandrov v. Gonzales,
II. ANALYSIS
A. Motion to Remand
Angov claims the BIA abused its discretion by denying his motion. See Movsisian v. Ashcroft,
Respondent respectfully submits a copy of Alexandrov v. Gonzales to supplement the record in this case. The document is submitted to document a pattern and practice of procedural and substantive violations of the law and applicable regulations by the consulate in Sofia during overseas investigations and in divulging the identity of asylum applicants to the authorities in Bulgaria in violation of C.F.R. 208.6 [sic].
“Since a motion to remand is so similar to a motion to reopen, the motion to remand should be drafted in conformity with the regulations pertinent to motions to reopen....” Rodriguez v. INS,
B. Admission of the Bunton Letter
Angov claims that the admission of, and the IJ’s and BIA’s reliance on, the Bunton Letter violated his statutory and constitutional rights. See 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.10(a)(4); Cinapian v. Holder,
While we review сonstitutional and statutory questions de novo, “[t]he BIA’s interpretation and application of the immigration laws are generally entitled to deference.” Hernandez-Mancilla v. Holder,
Angov’s statutory arguments can be quickly dispatched. He claims that he was denied his right to examine evidence against him. See 8 U.S.C. § 1229a(b)(4)(B). The record tells a different story: He was allowed to examine the Bunton Letter, and given ample time to produce substantial evidence to rebut it. See supra pp. 1266-67; cf. Cinapian,
Angov also argues that he was denied his statutory right to cross-examine the witnesses against him. We’ve held that, before hearsay statements made by an absent witness can be admitted into an immigration hearing, “ ‘the government must make a reasonable effort ... to afford the alien a reasonable opportunity to confront the witnesses against him or her.’ ” Hernandez-Guadarrama v. Ashcroft,
Angov also argues that admission of the Bunton Letter, and the IJ’s and BIA’s reliance on it, violates due process because the letter didn’t provide enough information to evaluate its reliability and trustworthiness. We see little merit in this argument but, surprisingly, five of our sister circuits disagree. Four have held that the Constitution prohibits the IJ and BIA from relying on consular letters like the Bunton Letter. See Banat v. Holder,
The IJ found that Nikolay Angov presented forged documents. This is a serious matter that, if true, should not merely result in the immediate termination of An-gov’s asylum petition, but also in criminal prosecution for immigration fraud. But the IJ and the BIA weren’t fazed by discovery of the fraud; they went on to decide whether Angov’s asylum claim could be sustained despite the forgeries. No оther adjudicator in the United States would react with such equanimity to finding that a party had tried to bamboozle it.
The reason for this deplorable state of affairs is not difficult to figure out. The schizophrenic way we administer our immigration laws creates an environment where lying and forgery are difficult to disprove, richly rewarded if successful and rarely punished if unsuccessful. This toxic combination creates a moral hazard to which many asylum applicants fall prey.
First, the reward: the opportunity to be lawfully admitted into the United States. Those born with U.S. citizenship cannot imagine what this is worth to the world’s poor and oppressed billions, most of whom would come here tomorrow if they could. Gaining a lawful foothold in America is an incalculable benefit. It sets an immigrant on the path to a peaceful life in a free society, economic prosperity, citizenship and the opportunity to bring family members in due course. A prize like this is worth a great deal of expense and risk. Telling an elaborate lie, and сoming up with forged documents and mendacious witnesses to back it up, is nothing at all when the stakes are so high.
And the risk of getting caught is low. As eight members of this court pointed out in Abovian:
The specific facts supporting a petitioner’s asylum claim — when, where, why and by whom he was allegedly persecuted — are peculiarly within the petitioner’s grasp. By definition, they will have happened at some time in the pasN^ often many years ago — in a foreign country. In order for the INS to present evidence “refuting or in any way contradicting” petitioner’s testimony, it would have to conduct a costly and often fruitless investigation abroad, trying to prove a negative — that the incidents petitioner alleges did not happen.
Finally, if an alien does get caught lying or committing fraud, nothing very bad happens to him. Sure, he may be ordered removed, but most aliens who aren’t in custody remain here long after their removal orders become final. See, e.g., Office of the Inspector Gen., U.S. Dep’t of Justice, The Immigration and Naturalization Service’s Removal of Aliens Issued Final Orders iii (2003) (reporting that “the INS removed only 3 percent of nonde-tained asylum seekers with final removal orders”); see also Mark Hamblett, Circuit Sets Policy for Removal Cases Deemed Low Priority by U.S., N.Y. L.J., Oct. 18, 2012 (discussing policy that calls for “the exercise of prosecutorial discretion to focus removal efforts on the most high-priority cases”). And if they do get sent back — at our expense — what’s lost? They wind up where they started. Would — be immigrants almost never get prosecuted for presenting forged documents in support of
Take, for instance, Angov’s compatriot, Pavel Pavlov. Pavlov sought asylum as a persecuted gypsy, just like Angov. They even have the same lawyer. But Pavlov’s story took a different turn when his wife gainеd U.S. citizenship and he sought adjustment of status. In the process, he had to disclose that his asylum application was a tissue of lies. Specifically, Pavlov admitted that he wasn’t persecuted in Bulgaria. In fact, he’s not even a gypsy.
Americans galore wind up in federal prison every year for far less significant lies on government forms or bank loan applications. See, e.g., United States v. Prince,
Cases involving fraudulent asylum claims are distressingly common. See, e.g., Cheema v. Holder,
Our sister circuits have given this already shaky system a swift kick in the gut, with only a single dissent by the levelheaded Judge Nelson in the Sixth. See Alexandrov,
It’s absurd. Grandiloquent language and lofty sentiments are no substitute for law and common sense. The other circuits have simply lost their way; they’ve overlooked some key precedents and misconstrued others. Below, we point out some problems with their opinions. Perhaps the Supreme Court or Congress will intervene and decide who’s right.
1. We start with a reality check: In how many cases has the Supreme Court held that evidence presented to a trier of fact is so unreliable that its admission violates due process? Angov cites none, and nor do any of the circuits that have adopted his theory. And for good reason: The only Supreme Court case to have addressed this argument in the administrative law context rejected it.
Richardson v. Perales,
The Supreme Court reversed, emphasizing the informality of Social Security claims procedures, the impartiality of the doctors and the practicalities and expense of conducting 20,000 claims hearings a year. Id. at 401-06,
Even in criminal cases, the Supreme Court has been extremely reluctant to hold that the mere admission of evidence violates due process. Dowling v. United States,
In only one line of cases has the Supreme Court held that the mere admission of evidence amounts to a denial of due process, and that’s where police manipulate an eyewitness to identify the defendant as the culprit. The Court announced this rule in Stovall v. Denno,
The latest case in the Stovall line, decided just last year, is particularly instructive. In Perry v. New Hampshire, — U.S. -,
The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.
Id. at 723.
The Court goes on to reject Perry’s argument that “trial judges [must] pres-creen eyewitness evidence for reliability
We have concluded in other contexts ... that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.... We reach a similar conclusion here: The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.
Id. at 728 (citing Ventris,
The way to deal with unreliable evidence, the Supreme Court tells us, is via the adversary system, which includes the ability to confront witnesses, the assistance of counsel, jury instructions, the burden of proof and the right to introduce contrary evidence. Id. at 728-29. Justice Thomas concurs, noting that the Stovall line of cases is grounded in substantive due process, which he finds inconsistent with the strictly procedural nature of the Due Process Clause. See id. at 730 (Thomas, J., concurring).
The constitutional adventurism of our sister circuits can’t be squared with Pe-rales or the Stovallr-Perry line of cases. Criminal trials reflect the pinnacle of procedural formality because the consequences of an erroneous conviction — loss of liberty or life — are the most serious. The Court has been willing to protect these values by adopting quasi-substantive rules such as those announced in Miranda v. Arizona,
Ours is not a criminal case. Nor is there an allegation that U.S. government officials manipulated the evidence or engaged in other misconduct. The due process claim is based entirely on the alleged unreliability of the evidence. Comparing the opinions of other circuits with Perry reveals the odd situation we’re in: The courts of appeals are forging a due process rule in the administrative context, where the Supreme Court has stressed informality and flexibility, even as the Court itself abjures a similar due process rule in the criminal context.
Nor can the rule our colleagues have invented be cabined to immigration cases. If admission of evidence can violate the due process rights of undocumented aliens, analogous constitutional rights can’t be denied to the millions of Americans whose professional licenses, disability benefits, grazing privileges, mining claims, zoning permits and a constellation of other benefits are controlled by fedеral, state and local agencies. This is just the opening chapter in what could well become the constitutionalization of vast areas of administrative law.
2. And Angov’s case is not even in the heartland of administrative law cases. It is at the fringes because Angov is an alien who never formally entered the United States. He presented himself at the San
This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. Our recent decisions confirm that view. As we explained in Johnson v. Eisentrager,339 U.S. 763 , 770 [70 S.Ct. 936 ,94 L.Ed. 1255 ] (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.
Id. at 32,
The Supreme Court has said as much: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” United States ex rel. Knauff v. Shaughnessy,
In Landon, the Court “reaffirmed the classical doctrine on the legal status of aliens seeking initial entry” and “cited with apparent approval United States ex rel. Knauff v. Shaughnessy.” Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L.Rev. 1, 20-21, 62-63 & n.343 (1984). In Zadvydas, the majority “reaffirmed] ... [the] distinction whereby those defined to be on the inside of the national territorial line enjoy fundamental due process protections whereas those on the outside do not. In the course of the analysis, the Court all but reaffirmed ... Mezei.” Linda Bosniak, A Basic Territorial Distinction, 16 Geo. Immigr. L.J. 407, 407 (2002).
Even if we were to apply the Goldberg/ Roth line of cases to aliens like Angov, it wouldn’t help him. “The Due Process Clause applies only when the ‘state’ ‘deprives’ a person of ‘life, liberty, or property.’ ” 2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.4, at 775 (5th ed.2010). Asylum is not life or property, and at least one of our sister circuits has held that aliens who seek asylum upon reaching the U.S. border have no liberty interest in entering the country. See Raf-eedie v. INS,
3. Furthermore, it is Angov who has the burden of proving his eligibility for asylum. See 8 C.F.R. § 1208.13(a). The government has no burden; it can present evidence solely to rebut or impeach petitioner’s case.
This matters because the Supreme Court often permits evidence to be used for impeachment, even when it is constitutionally inadmissible for substantive purposes. For example, evidence obtained without giving the suspect proper Miranda warnings can’t be introduced in the government’s case-in-chief, but it is admissible for impeachment. See Harris v. New York,
Even assuming it were appropriate to craft a rule limiting the admission of evidence based on an appellate court’s gut feeling as to its reliability, what’s sufficient for impeachment is certainly less than what’s needed to carry the
4. Even if petitioner had a due process right in the quality of the impeachment evidence presented by the government, there would be no constitutional violation here. The Supreme Court has told us that the appropriate test for evaluating the constitutional adequacy of procedures in immigration cases is that articulated in Mathews v. Eldridge:
In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current proсedures rather than additional or different procedures.
Landon,
We must thus consider not only the degree to which Angov may be prejudiced by admission of the Bunton Letter, but also the harm the government would suffer if it were required to produce more. We note that the other circuits did no such balancing; indeed, they seem to overlook Mathews and Landon altogether.
Angov finds fault with the Bunton Letter because it “provides no information as
The problems Angov identifies flow from the fact that the rules of evidence, and the hearsay rules in particular, don’t apply to administrative proceedings. See Richardson v. Perales,
The Bunton Letter does come to certain factual conclusions: that the addresses identified by Angov in his asylum petition don’t exist; that the officers — Captain Donkov, Lieutenant Slavkov and Investigator Vutov — and room numbers specified in the subpoenas presented by Angov don’t exist; that the seals on the subpoenas are the wrong size; and that the part of the city where Angov claimed to live was only twenty to thirty percent Roma. Each of these assertions describes facts in the real world, so it’s possible to rebut Bunton by presenting proof that those facts are not as the Bunton Letter describes them.
In fact, Angov did precisely that with respect to the two addresses. He presented a letter from someone in Bulgaria, who explained that the Bunton Letter’s conclusions about the addresses are wrong. See supra pp. 1266-67; Appendix. And the BIA seems to have been swayed, as it noted that the “record is unclear” about whether Angov was telling the truth about the addresses.
Angov was free to present similar evidence to undermine the Bunton Letter’s statements about the subpoenas. He could have had Ms. Mihaylova from the human rights organization or some other friend in Sofia visit the police station and try to find out whether the rooms referenced in the Bunton Letter do or don’t exist. He might also have been able to obtain a roster of the names of police officials in Sofia and shown that it contains the names of the officers referenced in the subpoenas.
The Bunton Letter also asserts that the phone numbers in the subpoenas aren’t correct. Angov or one of his friends could have called the numbers and asked whether he’d reached the police station — and then submitted an affidavit to that effect. The same is true about the seals: Angov or his friends might have tried to obtain an official copy of the police seal from the Bulgarian government and introduced it into evidence. He did none of these things, perhaps because he knew that the subpoenas were forged.
Where the petitioner has the burden of proof, there’s nothing unfair about having a U.S. government agent check out some of his basic facts and inform the IJ of possible discrepancies. This forces the petitioner to obtain further evidence supporting the challenged claims. There might be situations where obtaining further evidence is impossible, such as where the petitioner has fled from a closed society and can find no one willing or able to obtain the evidence he needs. In such
The Bunton Letter’s estimate that An-gov comes from a community that is only twenty to thirty percent Roma is similar to the kind of demographic estimates made by the State Department in its country reports, on which we and the BIA rely all the time. See, e.g., Dhillon v. Holder,
Were we to hold that we can’t rely on this estimate in the Bunton Letter, we’d be casting doubt on a multitude of country reports that have no better support for their demographic estimates than the Bun-ton Letter. The country reports are, after all, prepared by the very same consular officials, using some of the same methods, as the Bunton Letter. See Bureau of Democracy, Human Rights & Labor, U.S. Dep’t of State, Country Reports on Human Rights Practices for 2012: Appendix A: Notes on Preparation of Reports, at 1 (2012). Indeed, Cynthia Bunton’s title when she wrote her letter was director of the Department of Stаte’s “Office of Country Reports and Asylum Affairs.” (emphasis added). Nadia Tongour is her successor. Adopting Angov’s objection to the findings in the Bunton Letter could render country reports inadmissible in immigration proceedings.
Angov complains that the Bunton Letter might have relied on reports from foreign service nationals (FSNs). See Ezeagwuna,
Submissions such as the Bunton Letter and the various country reports on which we routinely rely aren’t just a collection of statements by disconnected individuals. Rather, they are the unified work product of a U.S. government agency carrying out governmental responsibilities. As such, the report itself, and the acts of the various individuals who helped prepare it, are clothed with a presumption of regularity. See Nat’l Archives & Records Admin. v. Favish,
The presumption of regularity has been applied far and wide to many functions performed by government officials. See, e.g., U.S. Postal Serv. v. Gregory,
The Bunton Letter is entitled to the presumption that those who participated in its preparation, be they FSNs, consular officers or officials at the State Department in Washington, did their jobs fairly, conscientiously and thoroughly; that each officer in the chain relied on the work of someone down the chain in whom he had confidence; that no one had a personal stake in the substance of the report; and that no one lied or fabricated evidence. Without this presumption, country reports would be no more useful than the Farmers’ Almanac or Perezhilton.com.
Holding that the admission of the Bun-ton Letter violates due process would cripple the government’s ability to detect fraud in the asylum process. The asylum unit of the Department of State’s Office of Country Reports and Asylum Affairs “has suffered from long standing resource problems.” Office of the Inspector Gen., U.S. Dep’t of State, Report of Inspection: Bureau of Democracy, Human Rights and Labor 23 (2003). Many of its staffers are interns, and even its regular employees are often “pressed into service to work” on the Office’s other main responsibility: country reports. Id. at 23-24. And the consular officers tasked with verifying asylum applicants’ claims are also overworked and understaffed. The Tongour Letter expresses the government’s position on providing additional information about the results of an overseas investigation: “Such additional demands are further burdens on Consular Officers in the performance of their regular responsibilities and are particularly onerous for FSNs who may be subject to local reprisal.” The State Department tells us it’s doing the best it can with the scant resources allocated to it and our consular corps abroad.
Demanding, as our sister circuits do, that the reports contain a multitude of additional details, such as “the identity and qualifications of the investigator(s),” “the objective and extent of the investigation” and “the methods used to verify the information discovered,” see Lin,
Insisting on these procedures would paralyze the process, making it impossible for our consular officers to do many of these investigations because they’re too busy filling in all the jots and tittles our sister circuits enshrine as constitutional requirements. Complying with thе requirements put in place by the other circuits considerably lengthens the time it takes to write most reports, and may make it impossible to write others for fear of disclosing sensitive information that could compromise sources or impair relations with local officials.
Nor is it realistic for the government to produce such information in camera. These reports are prepared by Department of State officials stationed in foreign countries, and are then turned over to another agency in another department, which then releases them to an adverse party. These disclosures are made in the context of immigration court proceedings, not in district court, and the immigration court, despite its name, is an executive branch agency. It has no contempt powers and can’t have anyone arrested for violating its orders, including confidentiality orders. See Stephen H. Legomsky, Restructuring Immigration Adjudication, 59
If we make the job of compiling these reports substantially more risky and onerous, the State Department may stop writing them. The United States gets close to 74,000 asylum cases a year, far more than any other industrialized nation. See United Nations High Comm’r for Refugees, Asylum Levels and Trends in Industrialized Countries 3, 8 & n.14 (2011). (That’s more than three times the number of Social Security cases the Supreme Court considered massive in Perales). The use of reports from consular officials gives the government the ability to check facts and puts at least some constraint on how far from the truth asylum applicants will stray. By knocking out even this feeble check on fraud and fabrication, the other circuits subvert the asylum process, giving charlatans a free pass into the United States.
5. In any event, our sister circuits’ “faith in procedural choreography is ... fundamentally flawed.” United States v. Balough,
We test this proposition by modifying a portion of the Bunton Letter to comply with the requirements put in place by other circuits; new or modified language is italicized:
Agent Michael Smith, a foreign serviсe agent with seventeen years of field experience who is fluent in Bulgarian, ordered Vladimir Popov, a foreign service national in the Embassy’s employ, to visit the 5th Police District station in Sofia in order to seek authentication of the two subpoenas. FSN Popov is a lifelong resident of Sofia and has worked for the Embassy for two years. He is fluent in Bulgarian and speaks conversational English.
FSN Popov traveled to the station and, once there, spoke to Ludmilla Bogdanovich, who is the supervisor of personnel records at the station. FSN Popov considers Ms. Bogdanovich a trustworthy source. After she consulted the relevant records, Ms. Bogdano-vich told FSN Popov that Captain Donkov, Lieutenant Slavkov and Investigator Vutov have never worked for the 5th Police District. Ms. Bogdano-vich also told FSN Popov that the case numbers on the subpoenas were not correct, there was no room 4 on the second floor and no room 5 on the first floor and that the telephone numbers on the subpoenas were incorrect. While at the station, FSN Popov asked Ms. Bogdanovich for an imprint of the police station seal, which he brought back to the consulate. Agent Smith compared it to the seal on the two subpoenas and found the official seal to be much larger.
After hearing FSN Popov’s oral report of his meeting with Ms. Bogdano-vich, Agent Smith transmitted the information to the author of this letter by encrypted email.
At this point, we would be faced with a whole new set of questions: How do we know Popov really went to the police station instead of stopping off in a bar to chug rakia? How did Popov know whether Bogdanovich was really the supervisor of personnel records at the police station? Did he check her identification papers? How did Popov assess Bogdanovich to be trustworthy, and how can we be sure he’s right? Did Popov look at the personnel records himself, or did he take Bogdano-vich’s word that the three officers never worked there? Can we be sure that Bog-danovich checked all the relevant records? Can we be sure the purported personnel records were accurate and complete? How do we know Popov didn’t falsify important details because he was afraid of reprisal or because he hates gypsies? And how can we be sure Smith is telling the truth if we can’t cross-examine him? Did Smith have a full-sized copy of the subpoena when he compared the seals or a shrunken photocopy?
These difficulties are inherent in trying to prove up facts related to events that occurred years past and thousands of miles away from where the IJ is holding his hearing. Short of transporting all the de-clarants and their underlying records to the United States for a hearing before an IJ, there will inevitably be gaps that can be bridged only by multiple levels of hearsay.
This is not a problem that plagues only the government. Almost every piece of evidence asylum petitioners present in support of their cases would be inadmissible if subjected to the rules of evidence, especially those pertaining to hearsay: threats they claim to have been subjected to; racist comments by the police; reports of strange people looking for them; letters from family members and others. A brief scan of our caselaw shows it’s pretty much impossible to build an asylum case without relying on evidence that would be laughed out of court if presented in a domestic trial. See, e.g., Meza-Vallejos v. Holder,
Take, as a small example, the letter from Daniela Mihaylova that Angov presented to rebut some of the information in the Bunton Letter. This is a two-page, typed document, with a small emblem and a typed address by way of -letterhead. (We reproduce it in the Appendix.) It is addressed “To: Whom it may concern” and references Angov’s case. The letter represents that the “Romani Baht Foundation is a leading Bulgarian non-profit organization for protection of Roma/Gypsies human rights, founded in 1996 and legally
The BIA took this letter seriously and modified some of the IJ’s findings based on it and other evidence presented by An-gov. But there is absolutely no evidence in the record that there is any such person as Daniela Mihaylova and, if there is, how she went about obtaining the information detailed in her letter. For all we know, Angov could have printed the letter using his computer and standard word processing software.
Compared to this letter — and the remaining evidence presented by Angov— the Bunton Letter seems a paragon of reliability. It was prepared by government officials trained to perform this kind of investigation; who have nothing to gain by giving false information; and whose conduct is clothed with the presumption of regularity that attaches to all government actors. Cf. Perales,
The Bunton Letter also gives specific reasons for doubting the authenticity of the addresses and points to several problems with the subpoenas. It is not an unsupported assertion that Angov is a liar; it is a rational, apparently objective recital of observed facts. At the very least, we can be sure that there is a Bunton and a Tongour, and that they can be disciplined or prosecuted if they negligently or deliberately falsified their reports. And we can reasonably presume that, in preparing their reports, Bunton and Tongour relied on trained State Department officers and agents who are themselves subject to discipline or prosecution for inсompetence or corruption.
Compare this to the letter from Mihay-lova (assuming there even is a Mihaylova): It comes from someone who cannot be disciplined or prosecuted in case of a lie, and who has not been screened for competence, honesty or reliability. It encloses no pictures or other documentary evidence. It doesn’t explain how the facts asserted were gathered or by whom. It doesn’t even claim to be based on firsthand knowledge, rather than hearsay or rumor. The letter simply makes a series of bald factual assertions without any support. Even assuming the letter is genuine (in the sense that it was actually written by its purported signatory in Bulgaria), the IJ and the BIA have absolutely no way to evaluate how accurate or objective it is.
In an environment where it’s pretty much impossible to obtain first-hand accounts of most of the relevant facts, does due process require the government to fight an uphill battle on a slippery slope with one leg and both arms tied behind its back, while its adversary gets to use cleats and brass knuckles? Of course not. As the Supreme Court has explained, “The constitutional sufficiency of procedures provided in any situation ... varies with the circumstances.” Landon,
* * *
We conclude that the IJ acted within his discretion when he admitted the Bunton Letter into evidence and relied on it to find that the subpoenas Angov submitted were fraudulent. The adverse credibility finding based on the fraudulent subpoenas was supported by substantial evidence. Because Angov’s claim is based on his mistreatment by the Bulgarian police, the fact that the subpoenas were fraudulent “goes to the heart of [Angov’s] claim of persecution.” See Rizk v. Holder,
PETITION DENIED.
[[Image here]]
Notes
. Angov’s brief refers to him as "Roma” or "gypsy” interchangeably. So do we.
. 8 C.F.R. § 208.6(a) provides that "[i]nfor-mation contained in or pertaining to any asylum application ... shall not be disclosed without the written consent of the applicant.” Angov argues that Alexandrov "exposed the improprieties that have riddled overseas investigations in the Sofia consulate,” including that investigations were oftеn conducted by foreign service nationals, that someone other than a consular officer could have authored embassy reports and that consular officials often signed reports written by others. None of these arguments were presented to the BIA.
. The DOJ guidelines stated that, in the case of a fraudulent document, the "report must contain, at a minimum: (i) the name and title of the investigator; (ii) a statement that the investigator is fluent in the relevant language(s) or that he or she used a translator who is fluent in the relevant language(s); (iii) any other statements of the competency of the investigator and the translator deemed appropriate under the circumstances (such as education, years of experience in the field, familiarity with the geographic terrain, etc.); (iv) the specific objective of the investigation; (v) the location(s) of any conversations or other searches conducted; (vi) the name(s) and title(s) of the people spoken to in the course of the investigation; (vii) the method used to verify the information; (viii) the circumstances, content, and results of each relevant conversation or search!]; and (ix) a statement that the Service investigator is aware of the confidentiality provisions found in 8 C.F.R. § 208.6.” Memorandum frоm Bo Cooper ("Cooper Memo”), Gen. Counsel, Immigration & Naturalization Serv., to Jeffrey Weiss, Dir., Immigration & Naturalization Serv. Office of Int’l Affairs, Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Informa
Dissenting Opinion
dissenting:
I would join the five other circuits that have considered the issue. Unsworn, unauthenticated, hearsay letters — prepared for litigation by the government and not subject to any form of cross-examination— cannot form the sole basis for denying asylum to an otherwise qualified applicant. Therefore, I must respectfully dissent.
I
We have long criticized the practice of using anonymous hearsay as the basis for denying constitutional rights, without affording due process. As Judge Walter
The question is: Is this system of secret informers, whisperers and talebearers of such vital importance to the public welfare that it must be preserved at the cost of denying to the citizen even a modicum of the protection traditionally associated with due process?
Parker v. Lester,
For Judge Pope, the answer was an unequivocal “no,” and that should be our answer today.
A
As we have steadfastly held, immigration proceedings must be conducted “in accord with due process standards of fundamental fairness.” Ramirez-Alejandre v. Ashcroft,
To be sure, “overseas investigations by State Department officials concerning the authenticity of documents purportedly originating in foreign countries are often necessary for the adjudication of an asylum claim.” Banat,
Reliance on reports of investigations that do not provide sufficient information about how the investigation was conducted are fundamentally unfair because, without that information, it is nearly impossible for the immigration court to assess the report’s probative value and the asylum applicant is not allowed a meaningful opportunity to rebut the investigation’s allegations.
Id. at 891.
Additionally, without reaching the Constitutional question, the Second Circuit rejected a “highly unreliable” consular report on the grounds that it did not amount to substantial evidence to support a finding that the document was forged. Lin v. U.S. Dep’t of Justice,
Keeping in mind the Lin factors, an examination of the circumstances giving rise to the other circuits’ concerns is instructive in evaluating this case.
In Banat, the Eighth Circuit rejected the IJ’s reliance on a consular letter that cited to an unidentified embassy investigator, with no indication of the qualifications or experience of the investigator or the investigator’s “contact,” and that contained multiple levels of hearsay.
In Balachova, the Second Circuit concluded that “the consular report is unreliable and cannot contribute to a finding of substantial evidence.”
In Anim, the Fourth Circuit considered a State Department letter authored by the same official involved in our case. It concluded that “the Bunton letter contains insufficient indicia of reliability and, as a result, its use was fundamentally unfair.”
In Lin, the Second Circuit rejected a letter almost identical to the one at issue here. The report was based on the opinions of government officials who, as the Second Circuit noted, “appear to have powerful incentives to be less than candid
In Alexandrov, the Sixth Circuit concluded that two consular memoranda did “not meet our standards of trustworthiness and reliability and were therefore improperly relied upon by the immigration court.”
In Ezeagwuna, the Third Circuit held that the BIA violated the petitioner’s due process rights by basing its credibility finding on a consular letter, which the Court concluded was “neither reliable nor trustworthy.”
Our case cannot be distinguishеd from those decided by our sister circuits. In this case, the immigration judge relied on a short, unsworn letter from Cynthia Bun-ton, the State Department’s Director of the Office of Country Reports and Asylum Affairs (“the Bunton Letter”). The Bun-ton letter consisted of unauthenticated, hearsay statements from unidentified officials. There is no description of the methodology employed in the investigation, the qualifications of the investigators, or who was involved. In short, the Bunton Letter contains conclusory statements of fact, but no information, as required by the Lin factors, about “(i) the identity and qualifications of the investigator(s); (ii) the objective and extent of the investigation; and (iii) the methods used to verify the information discovered.” Lin,
B
The Government argues that the Bunton Letter should be credited as trustworthy by employing the presumption of regularity — that is, that government officials accurately perform their reporting duties without bias. See Espinoza v. INS,
However, the presumption of reliability does not apply when the source of information “was neither a government official nor the subject of the report.” Hernandez-Guadarrama v. Ashcroft,
Second, the presumption of reliability, similar to the traditional hearsay exception for public records, applies to documents “prepared in accordance with normal recordkeeping requirements.” Espinoza,
For these reasons, I find the government’s arguments unpersuasive.
II
Adjudicating asylum claims is necessarily an imperfect еndeavor. Witnesses to alleged foreign persecution are rarely available; documents are often impossible to locate. The immigration judge is often left with assessing witness credibility as
As to post-REAL ID Act asylum seekers, the IJ may require corroboration, even when presented with credible testimony. See Aden v. Holder,
In the post-REAL ID Act world, when corroborating evidence has assumed more importance, it is not unfair or unduly burdensome to require the government to identify basic, rudimentary information about its sources when it challenges corroborating evidence so that the IJ can properly weigh it. The information our sister circuits have demanded is modest. They do not require that every detail be uncovered or every riddle solved, they merely ask that very basic foundational questions — already in the hands of the Executive Branch — be answered. The Executive Branch invests significant resources in forensic document analysts, who provide detailed declarations in immigration cases. It is not much to ask that in the case of routine foreign fact-checking, the government simply tell us how it acquired the facts upon which it asks us to deny asylum.
The alternative is a decision founded solely on anonymous hearsay, often — as in this case — produced by the very foreign government actors the asylum-seeker accuses of persecution. Nearly sixty years ago, Judge Pope underscored the danger of relying on “secret informers, whisperers and talebearers” to decide legal rights in the administrative process. We should not succumb to that temptation again, especially when it is used as the sole basis to deny relief to an otherwise qualified applicant. The immigration system is fraught with enough risk of error. When it is reasonably possible, we need to minimize that risk.
I respectfully dissent.
. If I were writing on a clean slate, I would join the Second Circuit and adopt the Lin factors as probative of the substantial evidence question, without reaching the due process issue. If forced to decide the contours of due process in this context, I would join our four other sister circuits and hold that administrative reliance on hearsay letters lacking sufficient authentication, such as the Bunton letter, violates due process.