Angov v. Holder

justice.” and arrests and nonetheless continued “violate the universal sense of ties Smith, informant. Id. at 1464. to use the at 897. Neither the fact that previously Cortina had committed not held that this state of affairs did We crimes, trying nor that he was to reduce concerns,” process due because “raise[] liability, his future criminal that satisfies expect is unrealistic to law enforce- “[i]t heavy burden. ment officers to ferret out criminals with- help unsavory out the characters.” Id. sum, we reiterate our conclusion in Thus, that at 1470. we concluded the Simpson that informant mere fact confidential process the due clause not give does engage “continued to use heroin and judiciary federal a chancellor’s foot veto during investigation” prostitution did [an] over law enforcement practices of which “oblige [government] stop using not Rather, approve. [does] not our Con- her as an informant.” Id. stitution leaves it to the political branch- here, Likewise, the fact that Corti government es of to decide whether to engaged past na had crimes does not regulate law enforcement conduct which gov raise due concerns about the may squeamish- offend some fastidious ernment’s use of him as a confidential private ness or sentimentalism about investigation. informant in its Nor does combatting energetically, crime too but past the nature of crimes rendеr Cortina’s which is not antithetical to fundamental government’s “outrageous.” conduct process. notions of due Indeed, precisely past it was because of his (internal 813 F.2d at 1468 citations and experience as a criminal that he was useful omitted). quotation marks ATF in to the its efforts to minimize the apprehending groups risks inherent in who AFFIRMED. engaging were in home invasions. We do require government to enlist a criminal person experience help with no apprehension

with the of a group hard

ened criminals.

Similarly, shocking it is not out cooperating

Cortina was of self-inter Nikolay ANGOV, Petitioner, Ivanov (observing est. Id. that it is “com government mon for the to reduce practice drop charges against persons coop HOLDER, Jr., Attorney Eric H. erate with law enforcement officials General, Respondent. others”). prosecution of do not re We quire solely to recruit in No. 07-74963. formants who in a al spirit will work Appeals, United States Court of good truism for the of mankind. Ninth Circuit. may surprising It that Cortina was given only years probation by four Argued and Submitted June 2012. being charged very state court after Filed Dec. However, serious crimes. we are not re- viewing his state court sentence for “outra- Rather,

geousness” here. we consider government’s

whether the use of Cortina Hullaby’s outrageous so case was as to Bunton, Director of by Cynthia (argued), signed Law Offices ter Glazer Nicolette Glazer, CA, Country Century City, for Office of Larry Department R. State’s Asylum Affairs. Reports Petitioner. Katsas, Attorney Letter, Assistant

Gregory G. admitted the Bunton The IJ Pettinato, General, Assistant Di- Barry J. Embassy con- stated that the had which rector, (argued) and Lloyd Busen Jesse Depart- tacted “an official the Archive Canter, Attorneys, E. United Charles Police District in Sofia.” ment at the 5th Justice, Divi- Department Civil States of errors in The official found number D.C., sion, Washington, Respondent. suggesting they subpoenas, were (1) Three officers named

forgeries: Donkov, Lieutenant subpoena Captain — Investigator Vutov—never Slavkov (2) police department; the the worked for KOZINSKI, ALEX Before: Chief wrong; telephone case and numbers were Judge, and STEPHEN S. TROTT and (3) and, although subpoenas the mentioned THOMAS, Judges. R. Circuit SIDNEY depart- floor of the room on the second floor, ment and room 5 on the first there

OPINION by are no rooms those numbers. The KOZINSKI, Judge: Chief (4) that explained official also the seal too small. subpoena the was that an other circuits have held Five judge violates due immigration embassy Bunton also stated that by relying laws on a State (5) investigator to locate An- was unable asylum investigation pe- of an Department (6) residences; gov’s past claimed and in claim. Do we fall line? titioner’s Angov neighborhood where lived Roma, only twenty thirty where percent to I. BACKGROUND “gypsy claimed that he lived in a Angov citizen, Angov, Bulgarian a Nikolay Attached to the letter neighborhood.” by Bulgarian persecuted claims he was places five photographs were because he is Roma.1 He al- government investigator trying had visited while to repeated abuse at the hands of the leges verify the addresses. Bulgarian police, including beatings, false lawyer Angov’s industrious submitted illegitimate of crimes and ar- accusations evidence, including plethora rebuttal treatment, years rests. After three of this Angov’s an photos, maps, article about in Bulgaria sought asylum he fled neighborhood apparently and a letter United States. by Mihay- named Daniela signed someone asylum in hearings An IJ conducted ear- lova, legal identified herself as Angov presented which ly during rights of a Roma human programs director documents, including Bulgar- two several organization Bulgaria. Angov in also ar- him subpoenas appear ian that ordered to that, to gued opportunity without station. The IJ allowed police at a Sofia investigator, the admis- cross-examine the government Depart- to obtain State Bunton violate his sion of the Letter would Angov’s allegations. investigation ment statutory rights. and constitutional § See 8 C.F.R. investigation 208.11. The objection, the Sofia, response Angov’s by our was conducted consulate attorney the State De- in a let- asked and the results were summarized interchangeably. "gypsy” So do we. Angov’s as "Roma” or brief refers to him by the employee regulations to testi- consulate Sofia partment produce investigation. during State re- fy invеstigations about overseas di- with a letter authored Nadia sponded vulging identity applicants Tong- Bunton’s successor. Tongour, Bulgaria to the authorities in in violation provided general Letter some back- our of C.F.R. 208.6 [sic]. investiga- ground information on State’s “Since a motion to remand is so explained that it’s procedures,

tion but to reopen, similar to motion the motion providing refrain from policy State’s conformity to remand should be drafted specific information about an further regulations pertinent with the to motions investigation. overseas INS, reopen....” Rodriguez v. Letter, Based on the Bunton the IJ (9th Cir.1988) (internal quo credibility finding made an adverse omitted). applicable tation marks asylum, Angov’s applications denied regulation provides that a motion to re withholding of removal and relief under open shall state “the new facts that will be Against Torture. The BIA the Convention proven hearing at a to be held if the deny- adopted ruling and affirmed the IJ’s granted” motion is and be supported relief, ing and his determination that the “evidentiary affidavits or other material.” BIA subpoenas are fraudulent. The also 1003.2(c)(1). § 8 C.F.R. But didn’t Angov’s supplement motion to denied any provide supporting his mo a opinion record with recent Sixth Circuit explain why tion nor did he even he be Angov that claimed constituted new evi- lieved that section 208.6 had been violate “pattern practice” dence of a and of law- d.2 The BIA did not abuse discretion its by breaking officials the Sofia consulate. in denying Angov’s motion to remand. Gonzales, v. 442 See Alexandrov F.3d 395 Alexandrov, More, disagree we see (6th Cir.2006). 9,p. point remanding and see no infra apply teachings for the BIA to of a II. ANALYSIS wrong. case we is flat believe A. Motion to Remand B. Admission of the Bunton Letter

Angov claims the BIA its abused of, Angov claims that the admission and by denying discretion his motion. See on, Bunton the IJ’s and BIA’s reliance 1095, Ashcroft, v. 395 F.3d 1098 Movsisian (9th Cir.2005). statutory constitu- Letter violated his and His brief before the BIA rights. tional See 8 U.S.C. just explaining spent two sentences this 1240.10(a)(4); 1229a(b)(4)(B); § § 8 C.F.R. argument: Holder, 1067, 1074- Cinapian v. 567 F.3d Respondent respectfully copy submits a Cir.2009). (9th considering Angov’s 75 supple- of Alexandrov v. Gonzales to decision, review the IJ’s ex- argument, we the record in this case. The docu- ment that the BIA didn’t cept portion for the a pattern ment is submitted to document conclusion clearly adopt here, the IJ’s practice procedural and and substan- — inability Department that the of State’s applicable tive violations of law and 208.6(a) by provides investigations § were often conducted 2. 8 C.F.R. "[i]nfor- nationals, foreign pertaining any asy- service that someone other mation contained in or application officer could have authored lum ... shall not be disclosed than consular embassy reports that consular officials appliсant.” without the written consent of the Angov argues "exposed signed reports written others. None that Alexandrov often arguments presented to the improprieties that have riddled overseas in- of these were consulate,” vestigations including BIA. in the Sofia 1268 a witness a reasonable effort to obtain supported ad

verify addresses Angov’s State, v. finding. Joseph See but was credibility Department from the verse (9th 1235, Holder, 1239-40 Cir. F.3d policy so prevented doing from State’s 2010). issue, we review the BIA’s On that releasing follow-up information re- of not decision. It investigations. its overseas garding entirely reasonable for the constitutional and we review While bring hearsay declarant from overseas novo, de BIA’s statutory questions “[t]he immigration hearing at an appear immi application of the interpretation and United States. entitled to deference.” gration generally laws are Holder, v. Herna ndez-Mancilla argues also that admission (9th Cir.2011); 1182, Zetino 633 F.3d Letter, Bunton and the IJ’s and (9th Holder, F.3d 1011-12 it, BIA’s reliance on violates due Cir.2010). findings— factual agency’s provide enough because the letter didn’t credibility determina such as its adverse reliability and information to evaluate its for substantial evi tion—are reviewed little merit trustworthiness. We see only if the dence and can be reversed but, argument surprisingly, this five our contrary conclusion. “compels” disagree. sister circuits Four have held Holder, 629 F.3d 1087-88 See Rizk v. thаt the prohibits Constitution IJ omitted). (9th Cir.2011) (emphasis relying BIA from on consular letters like statutory arguments can Angov’s Holder, the Bunton Banat v. Letter. See that he quickly dispatched. He claims (8th Cir.2009); Anim 892-93 right was denied his to examine evidence Mukasey, 256-58 against him. See U.S.C. Alexandrov, 407; Cir.2008); 442 F.3d at 1229a(b)(4)(B). § The record tells a dif Ashcroft, 405- Ezeagwuma v. story: ferent He was allowed to examine (3d Cir.2003). A fifth reached the same Letter, given ample time the Bunton statutory grounds. conclusion on See Lin evidence to it. produce to substantial rebut Justice, Dep’t 269 U.S. of 1266-67; supra pp. Cinapian, See cf. (2d Cir.2006) (because report consular (had government given at 1076 F.3d unreliable, agency that relied on it decision petitioners a chance to forensic examine evidence”). wasn’t based on “substantial hearing, they may have reports before thorough a Consequently, expla we offer evidence). produce rebuttal been able to parting company nation with our col for argues also that he was de leagues elsewhere. statutory right to nied his cross-examine Nikolay Angov pre- The found that IJ him. against the witnesses We’ve held forged sented documents. This is a seri- that, hearsay before statements made that, true, if merely ous matter should not an absent witness can be admitted into “ result in the immediate termination of An- immigration hearing, government ‘the in criminal gov’s petition, but also must make a effort ‍​‌​​‌​‌‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌‌​‌​‍... to af reasonаble prosecution immigration fraud. But opportunity ford the alien a reasonable to BIA the IJ and the weren’t fazed dis- him against confront the witnesses or ” fraud; covery they went on to de- her.’ Hernandez-Guadarrama Ash claim Angov’s asylum cide whether could (9th Cir.2005) croft, 394 F.3d forgeries. No despite be sustained INS, (quoting Saidane v. adjudicator other United States Cir.1997)); see also equanimity such to find- 1229a(b)(4)(B); would react with § Cinapian, 567 F.3d it. ing party make that a had tried to bamboozle 1076-77. The here did reality costly have to conduct a an unfortunate would and often points This to abroad, investigation fruitless trying cases so different that makes adjudications: prove negative American pe- from all other incidents —that Fraud, are so com forgery alleges happen. and fabrication titioner did not they prove mon—and so difficult —that very 257 F.3d at 976. There’s little the routinely Our circuit is no are tolerated. investigate United States can do to ob- INS, exception. See Abovian v. allegedly scure incidents that in occurred dissental). (9th Cir.2001) J., (Kozinski, on the of globe. countries other side deplorable feasible, for this state of if it economically The reason Even were we figure out. The affairs is not difficult to foreign country can’t send the FBI into a im- way we administer our schizophrenic investigation. to conduct full-field an environment migration laws creates person- best we can do is to have consular lying forgеry are difficult to where facts, nel check basic addition to the if disprove, richly successful and rewarded many they perform. other functions And rarely if unsuccessful. This toxic punished very personnel we have few U.S. consular a moral hazard combination creates countries; ground on the in all of most many asylum applicants prey. fall which Bulgaria, there are fewer than two dozen. State, Sec’y 1 Congressional See U.S. First, opportunity the reward: the to be Justification, Budget Department State lawfully into the United States. admitted Operations, Fiscal Year at 306 citizenship with cannot Those born U.S. (2012). told, All there are fewer than 6000 imagine what this is worth to the world’s consular officials embassies and consu- billions, of whom poor oppressed most spread lates out across more than 170 they tomorrow if could. would come here countries. Id. at 227-311. Gaining a in America is an lawful foothold immigrant benefit. It sets an incalculable Finally, get caught lying if an alien does in a free path peaceful on the to a life fraud, committing nothing very bad citizenship society, prosperity, economic Sure, happens may to him. he be ordered family mem- opportunity bring and the removed, but most aliens who aren’t prize in due course. A like this is bers custody long remain here after their re- expense and risk. great worth deal See, e.g., moval orders become final. Of- lie, coming Telling up an elaborate Gen., Inspector Dep’t fice of the U.S. and mendacious forged documents Justice, Immigration and Naturaliza- at all up, nothing witnesses to back it Aliens Issued tion Service’s Removal of high. are so when stakes (2003) (reporting iii that “the Final Orders only percent removed 3 of nonde- INS getting caught And the risk of is low. asylum tained seekers with final removal pointed court out eight As members of this Hamblett, orders”); also Mark Circuit see in Abovian: Policy Removal Cases Deemed Sets supporting petition- facts a specific for U.S., 18, L.J., Priority by N.Y. Oct. Low when, where, why asylum er’s claim— (discussing policy that calls for “the 2012 allegedly persecut- and whom he was discretion to focus prosecutorial exercise of peculiarly petitioner’s ed—are within the high-priority efforts on the most removal definition, By they will have grasp. cases”). they get if sent back—at And do pasN^ happened some time They up wind expense our lost? foreign many years ago often —what’s —in immi- they started. where Would—be country. pres- In to order for INS for get prosecuted never any way grants almost “refuting ent evidence or in support testimony, forged documents contradicting” petitioner’s presenting 1270 1044, Mukasey, v. 532 F.3d 1047-48 they unless commit some Dhital

asylum petitions, See, (9th Cir.2008) curiam); e.g., (per misconduct. United Chen v. Mu additional (9th 565, (9th Jawara, Cir.2008); 935, 474 F.3d kasey, v. 527 F.3d 938-39 States Cir.2007) (defendant charged docu 912, with Mukasey, Ahir v. 527 F.3d 914-16 conspiracy (9th Cir.2008). to commit mar ment fraud and every And for case where fraud). Consequently, immigration riage admitted, the fraud is discovered or there rampant. fraud is where the are doubtless scores others gets away with it because our petitioner Take, instance, Angov’s compatriot, to government didn’t have the resources sought asylum as a Pavel Pavlov. Pavlov expose the lie. They persecuted gypsy, just Angov. like lawyer. the same But Pavlov’s even have have al- given Our sister circuits this story a different turn when his wife took shaky system gut, kick in ready a swift citizenship sought and he ad- gained U.S. only single dissent the level- justment process, In the he had of status. Judge headed Nelson the Sixth. See asylum application that his disclose Alexandrov, (Nelson, at 409-10 F.3d Specifically, Pavlov a tissue of lies. admit- J., rulings dissenting). pret- Their make it persecuted Bulgaria. ted that he wasn’t ty impossible immigration much for the fact, gypsy. not even a he’s carry out the little bit authorities even galore up Americans wind in federal checking they manage of fact now to do. prison every year significant for far less Depart- These decisions smother State on forms or bank loan lies checking up ment’s informal See, applications. e.g., United States v. asylum petitions layers procedural (10th Prince, 1257, 1260-61, 647 F.3d complexity prove impossible that will Sandlin, Cir.2011); United States carry practice. out in (5th Cir.2009); 751-53 United Grandiloquent language It’s absurd. Jack, Fed.Appx. States v. 841-43 lofty sеntiments are no substitute for (11th Cir.2007). appealing So was Pavlov law and other common sense. The circuits Certainly criminal conviction? not. his they’ve simply way; have lost their over- obtaining any BIA Pavlov from barred key precedents looked some and miscon- relief under our laws because Below, point strued others. we out some (read: fraudulent) he had filed a frivolous problems opinions. Perhaps with their asylum decision he had the petition —a Supreme Congress will intervene Court Holder, chutzpah appeal. See Pavlov v. right. and decide who’s (7th Cir.2012). 697 F.3d 616 reality check: In We start with involving Cases fraudulent many Supreme how has the Court cases See, distressingly e.g., claims are common. presented held that evidence to a trier of Holder, Cheema v. 1046-47 fact is so unreliable that its admission vio- Holder, Cir.2012); Dol v. 492 Fed. none, process? Angov lates due cites (9th Cir.2012); Appx. Zheng any nor that have do circuits (2d Holder, Cir.2012); 180-81 adopted theory. good his And for reason: Holder, 1069, Fernandes v. 619 F.3d 1074- only Supreme The Court case to have ad- (9th Cir.2010); Holder, 76 v. 585 Ghazali in the administra- argument dressed this (6th 289, Cir.2009); 290-91 Ribas v. rejected tive law context it. (10th 922, Mukasey, 545 F.3d 925-26 Cir. Perales, 389, 91 2008); 814, Richardson v. 402 U.S. Siddique Mukasey, (7th (1971), Cir.2008); 1420, S.Ct. 28 L.Ed.2d 842 involved Rafiyev 815-16 v. Muka 853, Cir.2008); disability sey, Security 855-57 the denial of Social ben-

1271 testimony ary of a nonexam- rule for uncorroborated statements ob- on the efits based snitches]”). reports jailhouse of several ining physician [from and the tained court “was rеluctant experts. The district In only one line of cases has the Su- opin- evidence the accept as substantial preme Court held that the mere admission experts submitted ions of medical of evidence a amounts to denial of due reports, the ad- form of unsworn written process, and that’s police manipu- where would have the effect of mission which eyewitness late an identify the defen- opportunity denying opposition dant as the The culprit. Court announced 397-98, Id. at 91 cross-examination.” Denno, 293, this rule in Stovall v. 388 U.S. opinion It held that “the of a S.Ct. 1420. 301-02, 1967, 87 S.Ct. 18 L.Ed.2d 1199 never the claim- doctor who had examined (1967), backpedaling and has been ever probative ant to little or no is entitled See, Brathwaite, e.g., since. Manson v. value, especially opposed by when substan- 98, 117, 2243, 432 97 53 U.S. S.Ct. L.Ed.2d testimony including tial evidence the oral (1977); 188, Biggers, 140 Neil v. 409 U.S. and that what examining physician; of an 201, 375, (1972); 34 401 S.Ct. L.Ed.2d hearsay amounted to was before the court Alabama, 1, 5, Coleman v. 399 U.S. 398, hearsay.” Id. at 91 S.Ct. 1420. upon 1999, (1970); S.Ct. 26 L.Ed.2d 387 Sim- affirmed, naively The Fifth reason- Circuit States, 377, 386, mons v. United 390 U.S. hearsay ing that “uncorroborated could not 967, (1968). 19 L.Ed.2d 1247 S.Ct. But ... constitute substantial evidence when 440, 443, California, see Foster v. 394 U.S. directly by hearsay contradicted (1969). 1127,22 89 S.Ct. L.Ed.2d 402 testimony of live medical witnesses line, The latest case the Stovall decid- person.” claimant in Id. just year, particularly ed last instructive. reversed, emphasiz- Supreme Court — In Perry Hampshire, v. New U.S. informality Security ing the of Social -, 716, 725, 132 S.Ct. 181 L.Ed.2d procedures, impartiality claims (2012), eyewitness identified sus- practicalities expense doctors and the suggestive setting, hap- in a but this pect 20,000 conducting hearings claims a accident, pened by rather than as a result 401-06, year. at 1420. The Id. 91 S.Ct. By a mar- police manipulation. decisive rejected statutory pro- and due Court both gin, Supreme Court declined find claims. Id. at 91 S.Ct. 1420. cess process due violation. Id. 730. Justice None of the out-of-circuit cases on which Ginsburg analysis her with words starts distinguish relies even cite— —or colleagues that our in the other circuits Richardson Perales. should read twice: cases, Supreme Even criminal Constitution, our decisions indi- extremely Court has been reluctant to hold cate, against protects defendant vio- that the mere admission of evidence of ques- conviction based on evidence Dowling v. United process. lates due reliability, by prohibiting tionable States, 352-53, 110 S.Ct. U.S. evidence, introduction of the but af- (1990),firmly rejected 107 L.Ed.2d 708 per- fording the defendant means that a due argument defendant is denied jury that the evidence should suade the intro- prosecution because the unworthy of credit. be discounted as duced evidence of crimes of which he had Id. at 723. acquitted. been See also Kansas v. Ven- Perry’s goes reject on to tris, The Court n. 556 U.S. 129 S.Ct. (2009) pres- *, argument judges that “trial [must] almost (refusing, 173 L.Ed.2d 801 reliability eyewitness evidence for unanimously, to “crаft a exclusion- creen broad[ ] Ohio, 1602, 16 (1966),Mapp L.Ed.2d 694 v. made under any an identification is time 643, 655, 6 L.Ed.2d Id. at 367 U.S. 81 S.Ct. suggestive circumstances.” Illinois, Instead, appro- (1961), Napue of the evidence is 360 U.S. exclusion ‍​‌​​‌​‌‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌‌​‌​‍264, 269, enforcement use only “to deter law L.Ed.2d 1217 priate 79 S.Ct. photo lineups, showups, and improper (1959), of Mississippi, Brown v. 297 U.S. In another arrays.” passage Id. at 726. 285-86, (1936), 56 S.Ct. 80 L.Ed. 682 robes, might pin to their colleagues our All of those rules were de and Stovall. held: Court particular a evil: miscon signed to counter contexts have concluded other But by police prosecutors. We and duct unreliability refused, of potential ... steadfastly even in Court has of evidence does not alone render type cases, process criminal to find a due viola trial its introduction at the defendant’s unreliability tion based on the mere of fundamentally unfair.... We reach evidence. fallibility The of similar conclusion here: a criminal Nor is Ours is not case. not, eyewitness evidence does without allegation there an that U.S. conduct, improper taint of state war- manipulated officials the evidence or en- requiring rule a trial process rant a due pro- in other The due gaged misconduct. to screen such evidence for relia- court entirely alleged cess claim is based on the bility allowing jury to before assess unreliability Comparing of the evidence. its creditworthiness. opinions Perry of other circuits with Ventris, (citing at at 1847 Id. S.Ct. we’re in: The reveals odd situation *, Dowling, n. 493 U.S. at appeals forging process courts of are a due 668). S.Ct. context, rule in the administrative where way to deal with unreliable evi- has informali- Supreme Court stressed dence, us, Supreme via Court tells is ty flexibility, even as the Court itself system, adversary which includes the abjures process a similar due rule in the witnesses, ability to confront the assistance criminal context. counsel, instructions, jury of the burden colleagues our have Nor can the rule contrary proof right and the to introduce invented be cabined to cases. at Thomas evidence. Id. 728-29. Justice If of evidence can violate the admission concurs, noting that the Stovall line of aliens, rights due of undocumented grounded pro- in substantive due cases is analogous rights constitutional can’t be de- cess, which he finds inconsistent with the nied to the millions of Americans whose strictly procedural nature of the Due Pro- licenses, benefits, disability professional (Thomas, J., cess See id. at 730 Clause. claims, grazing privileges, mining zoning concurring). of other bene- permits and constellation of our The constitutional adventurism federal, fits are controlled state squared circuits can’t be with Pe- sister agencies. just opening local This is Stovallr-Perry

rales or the line of cases. chapter in what could well become the pinnacle pro- Criminal trials reflect сonstitutionalization of vast areas of ad- formality cedural because the conse- ministrative law. quences erroneous conviction—loss Angov’s 2. And case is not even in the liberty or life—are the most serious. law cases. It heartland of administrative willing protect has been Court Angov is an alien fringes at the because by adopting quasi-substantive these values United formally who never entered the rules those announced in Miranda such as Arizona, 436, 444-45, presented He himself the San 384 U.S. 86 S.Ct. States.

1273 (1953) (same). 625, entry 97 L.Ed. 956 valid S.Ct. entry without port.of Ysidro asylum. He is in sought process jurispru documents due While Court’s legally. physically, the United States changed Shaugh since the two dence has Mukasey, 548 v. Aguilera-Montero See see, cases, nessy e.g., Goldberg Kelly, v. (9th Cir.2008) 1248, (explaining 1253 1011, 254, 260-61, 90 25 397 U.S. S.Ct. fiction”); Kaplan v. “entry see also (1970); Regents L.Ed.2d Bd. 287 228, 230, 257, Tod, 69 45 S.Ct. 267 U.S. Roth, 564, Colleges v. 408 U.S. 569- State (1925); v. States Bara L.Ed. 585 United (1972), 70, 2701, 92 33 L.Ed.2d 548 S.Ct. (9th 1077, 1084-85 jas-Alvarado, has cited one or both of them in the Court Cir.2011). Plasencia, 459 In London v. postdate proce decisions that several 321, 21 74 L.Ed.2d U.S. 103 S.Ct. revolution, process they due so re dural (1982), Supreme explained Court See, Landon, good e.g., main law. 459 “continuously present difference between 321; Zadvydas, at 103 S.Ct. 533 U.S. alien” and one who permanent resident 692-94, 121 U.S. S.Ct. seeking at the border ad presents himself time: mission for the first Landon, In “reaffirmed the Court that an alien long has held This Court legal classical doctrine on the status of initial admission to the United seeking entry” initial with seeking aliens and “cited no requests privilege and has States apparent approval United States ex rel. appli- rights regarding his constitutional Shaughnessy.” v. Peter H. Knauff cation, or exclude power for the to admit Schuck, Immigra The Transformation of prerogative. Our sovereign aliens is a Law, 1, 20-21, 84 Colum. L.Rev. 62- tion that view. As recent decisions confirm (1984). Zadvydas, In the ma 63 & n.343 Eisentrager, v. explained we Johnson jority ... distinction “reaffirmed] [the] 936, 94 L.Ed. 339 U.S. S.Ct. [70 to be on the inside whereby those defined (1950), however, once an alien 1255] enjoy line funda of the national territorial country be- admission to our gains protections whereas process mental due go gins develop the ties on the outside do not. the course those residence, constitutional permanent his analysis, all but reaffirm the Court changes accordingly. status Bosniak, A ... Linda Basic ed Mezei.” (internal citations Id. at 103 S.Ct. 321 Distinction, Immigr. 16 Geo. Territorial Davis, omitted); Zadvydas see also (2002). 407, 407 L.J. 678, 693, 121 S.Ct. 150 L.Ed.2d U.S. (2001). Angov’s claim of a due Goldberg/ apply Even if we were to squared the Su violation can’t be rwith Angov, it line of cases to aliens like Roth It’s prohibition London. preme Court’s help him. “The Due Process wouldn’t plausible more to conclude that far the ‘state’ ‘de- applies only when Clause yet of aliens who haven’t entered rights ‘life, liberty, proper- prives’ person country entirely by defined are ” Pierce, Jr., Administra- ty.’ 2 Richard J. regulations. applicable statutes аnd 9.4, § at 775 tive Law Treatise has said as much: Supreme Court ed.2010). property, Asylum is not life or procedure authorized “Whatever has of our sister circuits and at least one is, process as far as an Congress it is due upon seek held that aliens who concerned.” United entry alien denied liberty no border have reaching the U.S. Shaughnessy, States ex rel. Knauff country. entering See interest 537, 544, 309, 94 L.Ed. 317 U.S. 70 S.Ct. Raf- INS, 506, 519-20 eedie v. (1950); Shaughnessy v. United see also (D.C.Cir.1989). entirely right. Mezei, 206, 212, This seems ex rel. 345 U.S. States Congress Attorney feeling reliability, and the General as to its what’s sufficient variety given Angov certainly have aliens like than impeachment for is less rights, including right the be procedural carry asylum appli- what’s needed to the1 to. represented present hearing; at the to be proof. Impeachment cant’s burden evi- counsel; by examine the evidence all, dence, believed; after need not be it counter-evidence; against present him only pre- need cast doubt on the evidence witnesses; to cross-examine and to have a by party with the sented the burden kept proceedings. written record of the 8 proof. The Bunton Letter is at least suffi- 1229a(b)(4). § U.S.C. Neither the statute Angov’s cient to cast doubt on evidence regulations give asylum appli nor the the him up and force to come with more solid right particular quality cant a to a of the proof support his claim. Instead, him. presented against evidence 4. if petitioner process Even had a due right to an given impartial he is have right quality impeachment adjudicator assess the evidence. When ex presented by government, evidence ercising grace towards individuals who would be no there constitutional violation laws, rights Congress no under our have Supreme here. Court has told us that precise grants can set the limits of what it appropriate test for evaluating the con- and what it withholds. That then defines adequacy procedures stitutional in im- an Angov seeker like is migration cases is that articulated due. Eldridge: Mathews v. Furthermore, it Angov who has evaluating procedures in any proving eligibility the burden of his for case, the courts must consider the inter- 1208.13(a). asylum. § See 8 C.F.R. individual, est at stake for the the risk of burden; government no it present has can deprivation erroneous of the interest solely to rebut or impeach peti- through procedures used as well as tioner’s case. probable value of additional or dif- This matters because the Su procedural safeguards, ferent and the preme permits Court often evidence to be government interest of the in using the impeachment, used for even when it is procedures current rather than addition- constitutionally inadmissible for substan procedures. al or different tive purposes. example, For evidence ob Landon, 34, 459 U.S. 103 S.Ct. 321 giving suspect tained without proper 319, (citing Eldridge, Mathews v. 424 U.S. warnings Miranda can’t be introduced in 334-35, (1976)); 96 47 S.Ct. L.Ed.2d 18 case-in-chief, government’s but it is Parkin, Adaptable see also Jason Due Pro impeachment. admissible for See Harris cess, Pa. L.Rev. U. 1325-26 & York, 222; 224-26, v. New 401 U.S. 91 S.Ct. (2012). n.77 (1971). Similarly, 28 L.Ed.2d ille only We must thus consider not gally seized evidence can be admitted to degree Angov may to which prejudiced impeach statements made a criminal Letter, admission of the Bunton but Havens, defendant. See United States v. also the harm the would suffer 620, 627-628, 446 U.S. S.Ct. required produce if it were more. We (1980); L.Ed.2d 559 Walder v. United note that the other circuits did no such States, 62, 64-66, 347 U.S. 74 S.Ct. indeed, balancing; they seem to (1954). overlook L.Ed. 503 altogether. Mathews and Landon assuming appropriate Even it were Angov craft a finds fault the Bunton Let- limiting rule the admission of evi- dence on an appellate gut “provides based court’s ter because it no information as Bulgaria, ed a letter from someone investigation; who to who conducted informa- that the Bunton Letter’s conclu- obtained, explained and verified the stored expressed underlying wrong. the conclusion the addresses are See tion sions about what 1266-67; when and under pp. Appendix. [or] the document And the supra was conducted.” investigation authority the swayed, BIA to have been as seems offers no Bunton Letter that the He notes unclear” noted that the “record is about conclusions— many for of its explanation the truth about telling whether the case numbers example, that both the addresses. on the telephone numbers listed and the present free to similar evi- Angov was incorrect. were subpoenas fraudulent undermine the Bunton Letter’s dence to to raise at interesting points all These are He subpoenas. about the statements of a satisfac- hearing, the and the absence Mihaylova Ms. from the could have had government might tory response from the or some other rights organization human disregard to the trier of fact well convince the station and police friend in Sofia visit this have to do letter. But what does the refer- try to find out whether the rooms process? with due in Bunton Letter do or don’t enced the Angov identifies problems also have been able to might exist. He evi fact that the rules of flow from the police names of obtain a roster the dence, in hearsay particular, the rules and that it contains officials in Sofia and shown proceedings. to administrative apply don’t the names of the officers referenced Perales, 402 U.S. See Richardson subpoenas. 400-402, 1420, 28 L.Ed.2d 842 91 S.Ct. that the The Bunton Letter also asserts (1971); v. Ash Hernandez-Guadarrama subpoenas aren’t phone numbers (9th Cir.2005). croft, 394 F.3d Angov or one of his friends could correct. uncertainty inevitably leaves some This numbers and asked wheth- have called the if were a be eliminated this that would station —and poliсe er he’d reached the of evi subject trial to the rules formal that effect. submitted an affidavit to then deprive opposing dence. But doesn’t Angov true about the seals: The same is rebutting all means of party any have tried to obtain might or his friends assertions. hearsay declarant’s police of the seal from copy official to certain Bunton Letter does come introduced it government Bulgarian the addresses factual conclusions: none of these He did into evidence. petition by Angov in his identified knew that the things, perhaps because he exist; Captain don’t officers— forged. subpoenas were Donkov, and Investi- Lieutenant Slavkov has the burden of petitioner Where specified room numbers gator Vutov—and having nothing unfair about proof, there’s presented by Angov don’t subpoenas check out some agent exist; subpoenas are a U.S. that the seals on the size; the IJ of part that the facts and inform wrong of his basic only pe- Angov claimed to live was This forces city possible discrepancies. where Each of twenty thirty percent to Roma. support- evidence to obtain further titioner facts in the real assertions describes these might There challenged claims. ing world, Bunton possible so it’s to rebut obtaining further evi- where situations that those facts are presenting proof as where impossible, such dence them. as the Bunton Letter describes society has fled from a closed petitioner willing able and can find no one fact, that with Angov precisely did In such evidence he needs. present- obtain the two addresses. He respect to the cases, petitioner’s Angov complains hold the failure that the Bunton Letter we don’t against him. See present might reports foreign have relied on from Holder, (FSNs). 1270-71 Singh v. service nationals Ezeagwu See (9th Cir.2011). But has never na, if it 406. What did? Our get that he couldn’t more evi- claimed Sofia, elsewhere, embassy in employs as dence; in Bulgar- indeed he has.resources roughly the same number of FSNs and ia. State, 1 Sec’y Americans. U.S. Con gressional Budged Justification, Depart

The Bunton Letter’s estimate that An- Operations, ment State Fiscal Year gov community only comes from a that is (2012). 2013, at 306 Our short-staffed con twenty thirty percent Roma is similar FSNs, demographic the kind of estimates made sular offices no doubt use who are Department country State its language fluent the local and familiar reports, rely on which we and the BIA all conditions, local to do some of the See, Holder, e.g., the time. Dhillon v. 485 legwork. nothing wrong We see with that. Cir.2012); Fed.Appx. Patel v. investigation Whether the was conducted (9th Holder, 584, Fed.Appx. 474 585 Cir. citizens, Poirot, by U.S. FSNs or Hercule 2012); Holder, Sesay Fed.Appx. v. 469 it in resulted certain factual conclusions (9th 617, Cir.2012); 617 see also Sowe v. that can be refuted. (9th 1281, Mukasey, 538 F.3d 1285 Cir. Submissions such as the Bunton Letter 2008) (“U.S. Department of country State country reports and the various on which reports appropriate per are the most and routinely rely just we aren’t a collection of haps the resource best for information on statements disconnected ‍​‌​​‌​‌‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌‌​‌​‍individuals. (in political foreign situations nations.” Rather, they product are the unified work omitted)); quotation ternal marks 8 cf. of a agency carrying U.S. out 1158(b)(l)(B)(iii). § U.S.C. such, governmental responsibilities. As we to hold that rely Were we can’t itself, report and the acts of the vari Letter, this estimate in the Bunton we’d be it, helped prepare ous individuals who are casting country doubt on a multitude of clothed with a presumption regularity. reports support that have no better for See Nat’l Archives & Records Admin. v. demographic their estimates than the Bun- Favish, 157, 174, 1570, 124 541 U.S. S.Ct. are, country ton Letter. The reports after (2004); 158 L.Ed.2d 319 see also Kohli v. all, prepared by very same consular Gonzales, 1061, 473 F.3d 1068 Cir. officials, methods, using some of the same 2007). the absence of clear “[I]n as the Bunton Letter. See Bureau of De- contrary, to the presume courts that [these Labor, mocracy, Rights Human & U.S. properly have discharged individuals] their State, Dep’t Country Reports on Hu- Favish, 174, official duties.” 541 at U.S. Rights Appendix man Practices 2012: for 124 (quoting S.Ct. 1570 United v. States A: Preparation Reports, Notes on at 1 456, 464, Armstrong, 517 U.S. 116 S.Ct. (2012). Indeed, Cynthia Bunton’s title (1996)). 1480, 134L.Ed.2d 687 when she wrote her letter was dirеctor of presumption regularity has been the Department of State’s “Office of Coun- applied many far and wide functions try Reports Asylum (empha- and Affairs.” See, added). performed by government officials. Tongour sis Nadia is her succes- e.g., Gregory, U.S. Postal Serv. v. objection U.S. Adopting Angov’s sor. to the (2001) 1, 10, S.Ct. 151 L.Ed.2d 323 findings the Bunton Letter could render (Post country reports immigra- disciplinary procedures); inadmissible in Office proceedings. tion Armstrong, United States v. 517 U.S. (1996) De- subject reprisal.” to local The State 1480, 134 L.Ed.2d 687 464, 116 S.Ct. doing the best it can partment tells us it’s making); FCC decision (prosecutorial 279, 296, Schreiber, allocated to it and 85 S.Ct. with the scant resources 381 U.S. (1965) (FCC’s decision corps consular abroad. 14 L.Ed.2d 383 our Miranda, INS making process); cf. do, Demanding, as our sister circuits L.Ed.2d 14, 16-18, 103 S.Ct. U.S. a multitude of reports contain curiam) (1982) of visa (processing (per details, identity such as “the and additional application). investigator(s),” of the “the qualifications to the is entitled Bunton Letter investigation” objective and extent of the participated that those presumption verify the infor- “the methods used to and FSNs, they consular preparation, its discovered,” Lin, 459 F.3d at see mation Depart- at the State officers or officials Banat, 891-92, at also see jobs fairly, Washington, did their ment in 257-58, Anim, transforms that each thoroughly; conscientiously swift, efficient and informal process that is the work of chain relied on officer time-consuming ponderous, into one that’s in whom he had the chain down someone expensive. confidence; personal had a that no one par- Insisting procedures on these would report; in the substance stake alyze process, making impossible fabricated evidence. no one lied or many of these officers to do our consular country reports presumption, this Without they’re busy too fill- investigations because than the Farm- no more useful would be our sister jots in all the and tittles ing Perezhilton.com. ers’ Almanac or require- as constitutional circuits enshrine Bun- of the Holding that the admission requirements with the Complying ments. crip- would violates due ton Letter by the other circuits consider- put place in ability to detect ple government’s it takes to write ably lengthens the time asylum process. The fraud in the may impossible make it reports, and most of Department of State’s Office unit of the disclosing sensi- for fear of to write others Asylum Affairs “has Country Reports and compromise could information that tive standing prob- resource long from suffered offi- relations with local impair sources or Gen., U.S. Inspector of the lems.” Office cials. State, Inspection: Bu- Report Dep’t of government for the Nor is it realistic Rights and Democracy, Human reau of in camera. such information produce (2003). are Many of its staffers Labor by Depart- reports prepared arе These interns, employees regular its and even foreign in officials stationed ment of State on into service to work” “pressed are often countries, turned over to and are then responsibility: other main the Office’s department, in another agency another at 23-24. And country reports. Id. them to an adverse then releases which asy- verifying officers tasked consular in the are made These disclosures party. are also overworked applicants’ lum claims immigration proceedings, court context of Tongour Letter ex- understaffed. court, and the not in district position pro- government’s presses name, executive court, its is an despite about the re- information viding additional contempt pow- It has no agency. branch investigation: “Such of an overseas sults for anyone arrested can’t have ers and burdens on are further additional demands orders, including confidentiali- violating its performance Officers Consular Re- Legomsky, H. Stephen See ty orders. par- are responsibilities and regular their Adjudication, 59 Immigration structuring may for FSNs who ticularly onerous (2010); Dana test this proposition modifying Duke L.J. We a Marks, Leigh Legal portion Still a “Cinderella’’? comply Bunton Letter Why Immigration requirements put Courts Remain an with the in place by oth- Law., circuits; Today, 59 Fed. Stepchild Ill-Treated er or language new modified There’s a good Mar. at 30. italicized: fall chance information will into the Smith, Agent Michael foreign ser- regard have little for people hands of agent years vice with seventeen of field repatriated themselves U.S. law and find experience Bulgarian, who is fluent revenge. with a motive for Consular offi- Popov, foreign ordered Vladimir ser- cials forced to disclose sensitive informa- vice national in the Embassy’s employ, probably tion in would these circumstances to visit the 5th Police District station report leave the information out of the Sofia order to seek authentication of sources, burning rather than risk their subpoenas. the two Popov FSN is a offending losing local their officials lifelong resident and has of Sofia lives. Embassy years. worked two for He is Bulgarian speaks job compiling If we make the these fluent English. conversational reports substantially risky more and oner- ous, Department may the State stop writ- Popov FSN traveled to the station ing gets them. The United States close to and, there, once spoke to Ludmilla 74,000 asylum year, far cases more than Bogdanovich, supervisor who is the any other industrialized nation. See Unit- personnel records at the station. FSN High Refugees, ed Nations Comm’r for Popov considers Ms. Bogdanovich a Asylum Levels and Trends in Industrial- trustworthy source. she consult- After (2011). (That’s ized 8 & n.14 Countries records, ed the relevant Ms. Bogdano- more than three times the number of So- vich told Popov Captain FSN Security cial Supreme cases the Court con- Donkov, Lieutenant Slavkov and Inves- Perales). sidered massive in The use of tigator Vutov have never worked for reports gives from consular officials the 5th Police Bogdano- District. Ms. ability to check facts and vich also told Popov FSN that the case puts at least some constraint on how far numbers on the subpoenas were not from asylum applicants the truth will correct, there was no room 4 on the stray. By knocking out even this feeble second floor and no room 5 on the first fabrication, check on fraud and the other telephone floor and that the numbers asylum process, circuits subvert the giving on the subpoenas were incorrect. pass charlatans a free into the United station, at the Popov While FSN asked States. Bogdanovich Ms. an imprint of the seal, police station brought which he event, any our sister circuits’ Agent back to the consulate. Smith “faith procedural choreography ... compared it to the seal on the two sub- fundamentally flawed.” United States v. poenas and the seal to be (9th Balough, 820 F.2d found official Cir. much larger. 1987) (Kozinski, J., concurring). Requir ing Department the of State to disclose hearing Popov’s FSN oral re- After more materially details will neither en port meeting his Bogdano- with Ms. of vich, reliability resulting hance the report Agent Smith transmitted the infor- very nor help asylum appli do much to mation to the author this letter of cants. encrypted email. seals or compared he the na when tell, letter this revised can we

Best photocopy? shrunken im- requirements the comply with would circuits, it be but would other by the posed trying are inherent difficulties These already we than what more valuable much to events that facts related prove up that for sure now know would have? We of miles and thousands years past occurred four to us via least came the information holding his the IJ is where away from (2) (1) Bunton; Ms. hearsay: levels of all the de- transporting of hearing. Short (4) (3) Ms. Smith; Popov; and FSN Agent underlying records and their clarants know help. no We’d That’s before an Bogdanovich. hearing for a States the United Smith, and we’d Agent about that can IJ, inevitably gaps a bit more be there will did person the who of of hear- identity by multiple know the levels bridged only be us? help that how would but legwork, say. the who a name of someone have also

We’d plagues only problem not a that This is from information provided purportedly every piece of Almost government. be of how would that Bulgarians, but present petitioners complain could still Angov any use? inadmissi would be their cases support of Bulgarian unable to assess IJ was evidence, rules of subjected if to the ble credibility credibility, or even official’s hearsay: pertaining those especially hearsay links of the later any subjected to have been they claim threats Agent that it was know chain. We’d also reports to; police; comments racist visually compared seal Smith them; letters looking for strange people official the station’s subpoenas with A brief family members others. from bring us closer seal, how does but much pretty shows it’s of our caselaw scan truth? asylum case without to build an impossible laughed that would relying on evidence be faced with point, At this we would in a domestic presented if out of court How do we questions: new set of whole Holder, See, Meza-Vallejos v. e.g., trial. sta- police to the really went Popov know (9th Cir.2012); Haile chug inoff a bar to stopping tion instead (9th Cir. Holder, 1124-25 F.3d know Popov whether How did rakia? Holder, F.3d 2011); Singh v. really supervisor Bogdanovich was Holder, (9th Cir.2011); v.Hu 1049-50 police at the station? records personnel (9th Cir.2011); Kumar 1011, 1013-15 papers? identification check her Did he Gonzales, 1047-48 to be Bogdanovich Popov How did assess .2006). Cir he’s can we be sure trustworthy, and how personnel at the Popov look right? Did Take, example, letter a small as himself, Bogdano- he take or did pre- records Mihaylova that from Daniela never the three officers that vich’s word information of rebut some sented to Bog- be sure that two-page, there? we worked Can is a Letter. This the Bunton all the relevant records? and document, danovich checkеd a emblem with small typed personnel purported way sure of -letterhead. by Can we be typed address complete? It is (We Appendix.) were accurate it in the reproduce records falsify may im- concern” didn’t Popov “To: How do we know Whom addressed letter of Angov’s he was afraid case. portant details because and references Founda- Baht And the “Romani gypsies? that represents he hates reprisal or because non-profit or- leading Bulgarian telling the is tion is a we be sure Smith how can Roma/Gypsies of protection for ganization Did him? we can’t cross-examine truth if legally in 1996 founded rights, human copy subpoe- have full-sized Smith registered Bulgarian court.” Mihay- Compare this to the Mihay- letter from purports lova to be legal programs’ lova (assuming there even a Mihaylova): is director of the Foundation. It comes from someone who cannot be disciplined prosecuted lie, or case of

The BIA took this letter seriously and and who has not been screened compe- modified some of the findings IJ’s based tence, honesty reliability. or on it It presented and other evidence encloses by An- pictures gov. But there no or absolutely documentary is no other evidence evi- any the record that there person such dence. It doesn’t explain how the facts Mihaylova and, is, as Daniela if there how asserted gаthered by were or whom. It she went about obtaining the information doesn’t even claim to be based on first- know, detailed in her letter. For all we hand knowledge, hearsay rather than Angov printed could have the letter using rumor. The letter simply makes a series computer his process- standard word of bald factual any assertions without sup- ing software. port. Even assuming the genuine letter is (in the sense that it was Compared actually written this letter —and the re maining purported its presented signatory by Angov— Bulgaria), the Bunton paragon Letter seems a IJ and the BIA absolutely way of have no reliability. It prepared by govern to evaluate how objective accurate or it is. ment officials perform trained to this kind In an environment where pret it’s investigation; who have nothing gain ty impossible much to obtain first-hand by giving information; false and whose facts, accounts of most of the relevant does conduct is clothed with presumption process require due government regularity that attaches to all fight uphill battle on a slippery slope Perales, actors. 402-06, U.S. Cf. leg with one and both arms tied behind its S.Ct. 1420. The Bunton Letter encloses back, while its adversary gets to use cleats five photographs depicting locations men and brass knuckles? Of course not. As tioned in Angov’s asylum petition, which Supreme Court has explained, “The confirms someone from our consulate constitutional suffiсiency procedures traveled to those locations and made a provided in any situation ... varies with personal inspection. Landon, the circumstances.” 459 U.S. at The Bunton Letter gives also specific 34, 103 S.Ct. 321. It would be the height reasons for doubting the authenticity of cognitive dissonance to hold the United points addresses and prob- to several States to standards of proof derived from lems subpoenas. with the It is not an litigation domestic while allowing petition unsupported liar; assertion is a present ers to anything and everything rational, it is a apparently objective recital that doesn’t bear the watermark “Forgery of observed least, facts. At the very we Purchased on the Black Market.” The can be sure that there is a Bunton and a balancing Mathews test calls for a Tongour, they and that can disciplined fair weighing of the burdens on parties both or prosecuted they if negligently or delib- controversy in light of “the circum erately falsified their reports. And we can Landon, stances.” 459 U.S. at reasonably that, presume in preparing S.Ct. 321. The balance struck reports, their the oth Bunton and Tongour relied on er circuits is so Department trained State one-sided and unfair that it officers and agents who subject government’s are hobbles the ability themselves to disci- to ‍​‌​​‌​‌‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌‌​‌​‍detect pline prosecution or for incompetence asylum or and combаt fraud in application corruption. process. the IJ acted that conclude We adopted rule consequence

The when he admitted discretion within his allow more be to will not other circuits on and relied into Letter Bunton land into the oppressed world’s of the sub Angov subpoenas find that it to canny, the Rather, it favors the free. adverse fraudulent. mitted were who have and those dishonest, brazen fraudulent on the credibility finding based or purchase connections the means by substantial supported subpoenas Nor does documents. fraudulent create claim based Angov’s Because evidence. help asy- ultimately rule circuits’ the other po Bulgarian his mistreatment that seekers, hard to believe it’s as lum were subpoenas lice, that the fact program long allow Congress will [Angov’s] heart of to the “goes fraudulent lie who people it rewards when continue Holder, See Rizk persecution.” claim of Eventu- States. the United way their into (9th Cir.2011). 1083, 1087-88 F.3d catch on will public Congress and ally, testimony is not Furthermore, Angov’s a fast-track vehi- has become asylum other evi credible, present and he doesn’t fraud, asylum and the cle for to show burden that meets his dence ” “ so as amended repealed bewill statute that he would not’ likely than it’s ‘more for honest difficult to make more See Bulgaria. if sent back be tortured ultimate vic- relief. to obtain seekers Holder, Shrеstha due substantive epidemic of Cir.2010). tims IJ Consequently, the asylum, the circuit courts infected denying has process that BIA decisions un protection tired, huddled masses of removal poor, withholding will be the must Torture Against Convention der the door slammed golden will find stand. their faces.

[*] ^{[*] [*]} PETITION DENIED. Appendix: Mihaylova Letter asylum to an qualified otherwise applicant.

THOMAS, Judge, Circuit dissenting: Therefore, I respectfully must dissent. I join would the five other circuits have Unsworn, considered issue. un- I authenticated, hearsay prepared letters — We long have practice criticized the for litigation by and not using anonymous hearsay as the basis for subject any form of cross-examination— denying rights, constitutional without af- cannot form the sole basis for denying fording due process. Judge As Walter

1283 Ashcroft, (6th Cir.2006); v. Ezeagwuna involving ease in a in 1955 wrote Pope Cir.2003). (3d 396, Those 405-08 325 F.3d clearances: security process re- that due have held circuits of secret system Is this is: question the minimal letters to meet consular quires of talebearers informers, and whisperers trustworthi- reliability and of standards wel- public to the importance vital such admissible. order to be ness in at the preserved it must that fare sure, investigations “overseas To be a even the citizen denying to of cost concerning the officials Department State traditionally protection the of modicum purportedly authenticity of documents process? with due associated are countries often foreign originating (9th 708, 719 Lester, 227 F.2d v. Parker asy- an adjudication of necessary for the Cir.1955). Banat, at 890. F.3d 557 lum claim.” explained: However, also was as the Circuit the answer 8th Pope, Judge For “no,” investigations should be our and that of reports unequivocal on Reliance informa- provide sufficient do today. that answer investigation was the about how tion unfair fundamentally be- are conducted A information, it is cause, that without held, immigra steadfastly have As we for the nearly impossible “in conducted must be proceedings tion probative report’s the to assess court of fun standards due process with accord is not asylum applicant and the value Ramirez-Alejandre fairness.” damental re- meaningful opportunity a allowed 365, 370 Cir. F.3d Ashcroft, 319 v. allegations. investigation’s but the banc) (internal marks 2003) (en quotation at 891. Id. reason, omitted). of four our For that the reaching Con without Additionally, govern the held that circuits have sister re Circuit the Second question, stitutional of rights the due ment violates re consular unreliable” “highly jected solely on the it denies when aliens not amount that did grounds the port on for prepared conclusory letters of basis finding support to substantial layers of multiple in reliance litigation v. forged. Lin document that the affording hearsay, without Justice, unauthenticated 268- Dep’t U.S. of confronting right of v. some petitioner (2d Cir.2006); the also Balachova see (2d Holder, F.3d Cir. charges. Banat F.3d 382-83 Mukasey, the Lin). (8th Cir.2009); 2008) quoted v. Muka Anim Lin (applying 892-93 (4th Cir.2008); Justice’s own of Department the approval 256-258 sey, 535 reports,1 such of preparation for Gonzales, guidelines Alexandrov in the course tle(s) spoken to that, people of the the case guidelines stated DOJ (vii) used to document, the method "report investigation; must the the fraudulent of a contain, information; (viii) (i) the circum- name and title verify the the at a minimum: (ii) content, the relevant investigator; stances, of each statement results and (ix) search!]; relevant lan- investigator a state- fluent and or conversation a translator or she that he used guage(s) or aware of investigator is the Service ment (iii) language(s); relevant who is fluent found in confidentiality provisions competency of any statements other from Bo Coo- § Memorandum 208.6.” C.F.R. appro- deemed investigator and translator Counsel, Memo”), Immi- Gen. ("Cooper per (such as edu- the circumstances priate under Serv., Jeffrey gration & Naturalization field, cation, famil- experience in years of Weiss, Dir., Naturalization Immigration & terrain, etc.); (iv) geographic iarity with Affairs, Confidentiality of of Int’l Serv. Office (v) investigation; objective of the specific Verifica- and Overseas Asylum Applications location(s) any other conversations Informa- Application of Documents tion name(s) conducted; (vi) ti- searches distilling them into three Anim, factors evalu- the Fourth Circuit considered ating the reliability of a consular letter: a State Department letter authored “(i) the identity qualifications same official involved in our case. It con- (ii) investigator(s); objective the cluded that and ex- “the Bunton letter contains (iii) tent of investigation; the insufficient reliability and, indicia of the as a result, methods used verify the its use fundamentally information was unfair.” Id. at F.3d at discovered.” 271. 256. It noted that the letter “is comprised entirely of multiple hearsay factors, mind Keeping the Lin statements.” Id. 257. pointed It also examination of the circumstances giving out that the “letter does not explain how rise to the other circuits’ in- concerns is Bunton the received information she re- evaluating structive in this case. lates, nor does the letter disclose the iden- Banat, In Eighth the rejected Circuit of tities some of the individuals involved in the IJ’s reliance on a consular letter that the chain of communication.” Id. The cited to an embassy unidentified investiga- Court observed that provided letter tor, with no indication of the qualifications “markedly insufficient information” as to or experience of the investigator or the how the investigation conducted, was “contact,” investigator’s and that contained “[wjithout emphasized that the details of multiple hearsay. levels of 557 F.3d at investigation, impossible for an 891-92. The Eighth applied Circuit BIA, judge, the or a court to Lin factors and determined that none of evaluate the reliability of the letter’s con- the factors were met. Id. at 891-93. As a clusions.” Id. The Fourth Circuit deter- result, Court concluded that “the IJ’s mined that the letter did satisfy reliance on the Department letter, State test, Lin concluding that the letter did not provided which no details about the inves- “meet even the minimum pre- standards tigation that would allow the IJ to assess by scribed Department [the of Homeland the investigation’s reliability or trustwor- Security],” and clarity lacked “the and con- thiness and which contained multiple levels tent necessary provide probative fair or of hearsay, violated Banat’s right to a fun- evidence in an immigration proceeding.” damentally fair hearing.” Id. at 893. Id. at 258. The Fourth Circuit also warned of the temptation to defer to and Balachova, In the Second Circuit con- rely general “the prestige compe- cluded that “the report consular is unrelia- tence the Department of State” as the ble and cannot contribute to a finding of primary factor in determining the docu- substantial evidence.” 547 F.3d at 383. ment’s authenticity, rather than on “ade- The Court noted that the report “contains quate evaluation of the reliability of the no information concerning qualifica- document.” Id. tions of investigators, the identity of the Russian officials prepared Lin, re- In rejected Second Circuit sрonse to the inquiry, consular letter almost identical to the one at issue methods, any, if verify used to the infor- report here. The was based opin- on the mation supplied by the foreign official.” Id. of government ions who, officials as the Applying factors, the Lin it held that the noted, Second Circuit “appear to have IJ rely could not on the letter. powerful incentives to be than less candid (June 21, 2001), tion http:// available at 45.

judiciary.house.gov/legacy/82238.pdf at 39- authori- Department’s the State invoking perse- government’s their subject of on the safeguard procedural noting at 269- that ty,” Id. dissidents.” political cution if destroyed Consu- that the review “would judicial concluded Court “insufficiently simply detailed its decisions Report justify lar could the Board its relia- to assess reviewing court De- State permit invoking assertions at 270. Id. bility.” no provide themselves partment validity.” Id. evaluating their con- Alexandrov, means for Circuit the Sixth INS, did memoranda Lin v. consular Li (quoting two Wu cluded trustworthi- Cir.2001)). (3d our standards meet “not therefore reliability were and ness and from distinguished case be Our cannot immigration the by upon relied improperly In sister circuits. by our those decided noted The 407. Court at 442 F.3d court.” on relied judge case, this the the em- of no identification was that there Cynthia Bun- short, letter from unsworn any “to no clarification investigator, bassy of Director Department’s ton, the State was investigation of type what degrеe [of] Asylum Country Reports of in- the the Office of how conducted,” description no Letter”). Bun- (“the Bunton concluded, explanation no Affairs vestigation was unauthenticated, and no of qualifications, consisted investigator’s letter of the ton provided person who of the offi- unidentified identification from hearsay statements summa- the Court Id. As the information. of the meth- description no There is cials. we that do not much rized, is “[t]here the investigation, in the employed odology conclusions apparent from the aside know investigators, the of qualifications Id. investigation.” mysterious of the short, Letter In the Bunton involved. was held fact, Circuit the Third but of Ezeagwuna, conclusory In statements contains due petitioner’s the BIA by that the violated the Lin information, required as no credibility basing its by rights process “(i) qualifi- identity and the factors, about letter, the which a consular finding (ii) ob- the investigator(s); cations reliable nor was “neither concluded Court investigation; of jective and extent It found 408. at 325 F.3d trustworthy.” infor- verify the (iii) to methods used hear- “multiple letter constituted that the Lin, at 271. 459 F.3d discovered.” mation Id. troubling kind.” say the most of circuits, left, our sister as were areWe inves- that also noted The Court “insufficiently de- that a document unidentified, country officials was tigator reviewing court assess to permit tailed by position, only identified were Indeed, at 270. Id. reliability.” its disclosed, were not information of sources information is lеss many ways, there de- was investigation the method rejected as letters than in letter Bunton conclusory statements tailed, only Further, circuits. our sister unreliable observed It at 406-08. made. Id. were this case provided key information no information “absolutely had that police at the individual an unnamed bywas of, consisted ‘investigation’ what the about to have claims Angov where department conducted was investigation or how his on account severely beaten been also The Court at 408. Id. this case.” offi- government Like views. political “attempt- agency was that concerned depart- Lin, official—whose cials De- of the State prestige use the ing to brutality by accused had been ment Id. case.” make its letterhead partment “less strong incentive “the Board’s emphasized It at 407. —had Id. at 269. candid.” by than simply be sustained cannot decisions sum, whether we cast the issue as tion reliability that serves as prem- one of due or of substantial evi- ise for the public-records exception does dence, Bunton letter falls far short of not attach to parties third who themselves satisfying the standards of reliability es- have no public duty report.”). tablished our sister circuits and the Second, presumption of reliability, agency should not have relied it.2 upon similar to the hearsay traditional exception for public records, applies to documents B “prepared in accordance with normal argues Government that the Bunton recordkeeping requirements.” Espinoza, Letter should be credited as trustworthy 310; 45 F.3d at see also Lopez-Chavez v. by employing the presumption of regulari- INS, (9th Cir.2001) is, ty officials accu- —that (“It must be shown that the document has rately perform their reporting duties with- been certified by the INS District Director out INS, bias. See Espinoza v. as a true an[d] accurate reflection of INS (9th Cir.1995) (holding that “infor- records.”). The Letter, Bunton summariz- mation on an authenticated immigration ing the results of an investigation involving form is presumed to be reliable in the multiple individuals and carried out at the absence of evidence the contrary to pre- behest of a party in involved litigation, is alien”). by sented the not comparable to an authenticated immi- However, presumption of reliability gration form routinely filled out border does not apply when the source of informa agents. Espinoza, 45 F.3d at 309. It is tion government “was neither a official nor not a “business record” is prepared which subject of the report.” Hernandez in the usual ordinary and course of busi- Ashcroft, -Guadarrama v. 394 F.3d It ness. was not authenticated or certi- (9th Cir.2005) 681 n. 9 (citing Espinoza, 45 fied. It did not even conform with the 310). F.3d at The key hearsay statement agency’s own reporting procedures, as de- in the Bunton Letter comes from a Bulgar scribed and set forth in the Cooper Memo. ian рolice employee, not U.S. govern Thus, the ad hoc Bunton Letter does not ment or Angov. official Statements made qualify as a government pro- document persons third under no duty business to duced accordance with regular agency report are not entitled to the presumption procedure. of reliability and cannot considered sub reasons, For these I ject find the govern- to the presumption, even if included arguments ment’s unpersuasive. a document that enjoys such a presump tion. Pazsint, United States v. II (9th Cir.1983); 424-25 see also Pouho Holder, va v. (7th Adjudicating F.3d asylum 1014-15 claims is necessari- Cir.2013) ly (rejecting application imperfect an pre endeavor. Witnesses to sumption of reliability hearsay to alleged foreign state persecution are rarely ments of parties third available; recorded in official documents are impossible often documents); Binns, Jordan v. to locate. The immigration judge is often (7th Cir.2013) (“[T]he presump- left with assessing witness credibility as If writing slate, I were on clean context, I would due join this I would our join the Second adopt Circuit the Lin other four sister circuits and hold that admin- probative factors as substantial evi- hearsay istrative reliance on lacking letters question, dence reaching pro- authentication, without the due sufficient such as Bunton cess If forced letter, issue. to decide the contours of process. violates due rights legal decide to talebearers” request resolving means of only not should We process. seeing administrative to limited often areWe relief. espe- again, temptation to that darkly. succumb glass, through to sole basis as the it is cially used when asylum seek ID Act post-REAL As to appli- qualified an otherwise deny to relief corroboration, require ers, may IJ fraught system cant. testi credible with presented when even it is When risk of error. enough Holder, 589 F.3d v. Aden mony. See minimize we need possible, reasonably (‘Where Cir.2009) the trier (9th risk. should applicant fact determines other that corroborates evidence provide dissent. respectfully I testimony, such credible

wise does applicant unless the provided must be reason cannot have the evidence

not (quoting evidence.”

ably obtain sus 1158(b)(1)(B)(ii))). We have §

U.S.C. of relief founded denial BIA’s

tained the seeker inability of Holder, Shrestha corroboration. obtain NGUYEN, Petitioner- HA VAN Cir.2010). 1034, 1047-48 Appellant, world, when ID Act post-REAL ‍​‌​​‌​‌‌‌‌​​‌‌​‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌‌​‌​‍In the more assumed has corroborating evidence Respondent-Appellee. unduly CURRY, bur- unfair or Ben it is importance, require densome 11-56792. No. information rudimentary basic, identify cor- challenges Appeals, it when Court States sources United about its can the IJ so Circuit. roborating Ninth our information weigh it. properly 4, 2013. June and Submitted Argued is modest. demanded have sister circuits every detail Filed Dec. They require do solved, they every riddle uncovered foundational very basic ask that

merely Ex- in the hands

questions already — Exec- answered. Branch —be

ecutive significant resources invests Branch

utive analysts, provide forensic document cases. declarations

detailed case of to ask that much

It is not fact-checking, govern- foreign

routine acquired how tell us simply

ment asylum. deny us to it asks which upon

facts founded is a decision

The alternative hearsay, often—as anonymous

solely foreign very by the produced

this case— ac- asylum-seeker actors sixty years Nearly persecution.

cuses of danger underscored Pope Judge

ago, informers, whisperers “secret relying on

Case Details

Case Name: Angov v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 4, 2013

Citation: 736 F.3d 1263

Docket Number: 07-74963

Court Abbreviation: 9th Cir.