*1 In re decisions. -Booker post circuits ALEXANDROV, D. Todor concedes Government
sponse, the Petitioner-Appellant, (i) the district required, where is remand at sen factual determination made a court v. possessed used that Defendant tencing GONZALES, Attorney General Alberto ... a crime with “in connection a firearm States, Respondent- United 4B1.4(b)(1)(3)(A), violence,” § U.S.S.G. Appellee. from increase an offense level resulting in (ii) court, accor 34; the district to33 No. 04-4458. time, at the settled law with the dance Appeals, Court of United States sentencing guidelines the federal treated Circuit. Sixth (iii) nothing in the rec mandatory; and as recognized as presumption, ord rebuts 16, 2006. Argued: March that Defendant precedents, in this circuit’s Filed: April Decided and sentence a lesser have received might guide regarded had court the district advisory. merely See United
lines as Barnett, F.3d 527-29 v.
States Oliver,
(6th Cir.2005); v. States United Cir.2005). (6th Conse 369, 378-81
F.3d sentence vacate Defendant’s
quently, we resentencing.6 remand for
IV. CONCLUSION above, forth we reasons set
For the court’s decision the district
AFFIRM Defendant/Appellant Carson
sentence criminal, but career
Beasley an armed as and re- sentence Defendant’s
VACATE in accordance resentencing
mand for prece- post-Booker court’s
Booker and this
dents. sentencing, long as the so remand, fendant's initial court free to district
6. On sentencing range advi- resulting is treated as vio- again the one-level "crime consider sory mandatory. imposed De- rather than lence” enhancement *2 Horn, Stanley ARGUED: Azulay, J. Seiden, Illinois, Horn & Chicago, for Peti- Park, Song tioner. E. United States De- partment Justice, D.C., Washington, for Respondent. ON BRIEF: Stanley J. Horn, Siddique, Saadia Azulay, Horn & Seiden, Illinois, Chicago, for Petitioner. Park, Song E. Jocelyn M. Wright, United Justice, Department States Washington, D.C., Respondent. later, however, issued a the INS NELSON, MARTIN, months
Before: COLE, Judges. notice of intent terminate Circuit that Alexan- on its conclusion based status MARTIN, J., opinion delivered fraudulent documents drov had submitted J., COLE, joined. court, in which *3 a After hear- support application. of his - 410), a delivered NELSON, 409 (pp. J. agreed that the immigration court ing, the opinion. dissenting separate fraudulent and that Alex- were documents asylum a frivolous androv had submitted OPINION meaning of 8 within U.S.C. application JR., MARTIN, Circuit F. BOYCE 1158(d)(6) § 1208.20.1 § and 8 C.F.R. Judge. the court also finding, on this made Based Au- was born on D. Alexandrov Todor credibility finding against Alex- an adverse of 1971, native and citizen 21, and is a gust all forms of relief.2 and denied androv the United entered Alexandrov Bulgaria. Immigration Appeals af- Board of to attend a student visa in 1996 on States adopting the conclusory order firmed University in Louisiana. McNeese For the immigration court. findings of university, but on attended He never reasons, petition following GRANT we administrative re- 6, 1997, an filed May for further con- and REMAND review for 1997, September asylum. On quest for of Alexandrov’s particularly asylum that his received notice Alexandrov sideration — permanent adjustment to a lawful of status Nearly six approved. had been application pending before appeal 1158(d)(6) While this provides § "[i]f 1. 8 U.S.C. Board, Reopen an alien has a Motion to Attorney determines that Alexandrov filed General application for knowingly a frivolous made before the court and Remand the notice has received asylum and the alien upon his wife had received the fact that based (4)(A), be alien shall paragraph under petition which also approved 1-140 via an ineligible any benefits under for permanently adjust status to permitted Alexandrov a final of the date of chapter, effective as this as a derivative. permanent resident lawful application.” The im- on such determination respond opposition to The INS did not § regulation, 8 C.F.R. 1208.20 plementing granted the mo- and the then motion Board after applications filed on or "For states: remand, the On im- without comment. tion 1, 1997, subject to the applicant is April an dismay at expressed its migration court 208(d)(6) only of the Act provisions of section court, because its being back before case immigration judge or the by an if a order final a frivo- submitted finding had that Alexandrov specifically Immigration Appeals of Board relief, precludes all forms of application lous a frivolous knowingly filed that the alien finds the basis for the including purposes this sec- that which For of asylum application. ("[L]ook, any tion, application is frivolous if asylum Reopen. JA 40-41 Motion deliberately fabri- is elements oper- of material its the Board how don't I don’t understand finding only made if the be Such shall cated. my years four seen in From what I've ates. is satisfied immigration judge or the Board get things to rid of cases judge do as [a] during of the the course applicant, that the Thus, them.”). the immi- than solve rather opportunity to had sufficient proceedings, has finding that the its gration reiterated court implausible discrepancies for account clear, “by were documents fraudulent purposes this aspects claim. For evidence,” unequivocal convincing, and section, a frivo- finding that an alien filed ap- previous On conclusion. its reiterated preclude asylum application shall lous judgment with- peal, the Board affirmed withholding seeking of removal.” from alien why previously remand- it comment as out commonly re- is finding frivolousness A case. ed the immigra- "death sentence” to as the ferred See, v. Gon- e.g., Muhanna proceedings. tion Cir.2005). (3d zales, 399 F.3d resident on eligibili- based his derivative ents Lom. He testified he was ty immigration judge. a different accosted on the police street officers —before police and taken to the ques- station for
I. tioning. Alexandrov testified that he was threatened, application interrogated, Alexandrov’s slapped, but not Ilinden, beaten, membership based on his in Omo and then released. The third inci- political party in Bulgaria that advocates dent January occurred Musala in the causes of the minority.3 Macedonian when Alexandrov was the assistant secre- membership Based on his in this group, tary of Omo Ilinden and was again the arrested, Alexandrov claims that he was organizer of a demonstration. He claims questioned, police beaten police that the interrupted the demonstra- *4 several occasions. He further claims that tion and arrested him a and few friends. subpoenaed by he Bulgarian the au- arrest, Following the he and his friends court, appear to in thorities at which time questioned separately were at police he to fled the United States. After arriv- station and held overnight. Alexandrov ing States, in the United Alexandrov testified that approxi- were held for claims to have learned that he was tried mately hours, sixteen beaten with a club and in prison sentenced absentia to for hands, eventually and and released. The years. five After granting Alexandrov’s fourth incident July occurred on application asylum, for the INS then ter- meeting after a of group. his He claims minated his status based on “new police waited meeting outside of their evidence” that the in documents he used place and then beat meeting attendees. support of his claim forgeries. were Alexandrov claims to have been hit over the head and lost consciousness. He was
Alexandrov described several instances station, police taken to the questioned, persecution of that led him to asylum. seek beaten, kicked, sign and forced to All decla- incidents stem from membership his in ration that Omo Ilinden was a Omo Ilinden. terrorist Alexandrov testified that organization. the first Alexandrov testified that incident occurred at a he demonstra- tion was told he would not where he was leave the room co-organizer. alive He if he did alleges police sign that two officers came declaration. He up to him, him, grabbed him, claims he interrogated was released after signing and beating They started him. declaration. put then him in Id. Alexandrov testified that a car and took him police to a he suffered station. At fractured ribs and a concussion the police station interrogated this, he was from the beating. After he claims about Omo Ilinden and police was beaten and that “became more arrogant,” “7, released after 8 hours of coming business, detention.” to place his of looking Alexandrov testified that only files, he suffered through going to his home ques- and bruises from this beating. The second tioning girlfriend, his and then issued a arrest allegedly in occurred November in appear court. He claims to 1995when visiting Alexandrov was par- have been issued the subpoena on October points 3. Alexandrov Department marches, to a permission meetings denied for and Report, "Bulgaria Asylum leading to confrontations with the authorities. —Profile Conditions,” Country Claims & possible which notes might While it is that activists en- that organization "OMO-Ilinden[ is] counter mistreatment under some circum- government stances, register refuses to on the membership support mere do and/or grounds illegally not, view, that it separatism. advocates grounds in our significant form Lacking registration, it has on occasion been concern.” states, in Memorandum its regard The Grencik also testified 20, 1996. Alexandrov entirety: as a result of injuries suffered other ing including broken bones beatings,
the four has reviewed the The Consular Section He also testified tooth. support broken in of this documents submitted fol hospitals seeking medical treatment confirmed asylum application and has certifi beatings submitted lowing the following defects: hospitals. cates from presented 1. has a court Alexandrov (5) years him to five sentencing decision receiving that after Alexandrov testified by the imprisonment, allegedly issued country later subpoena he fled in Lorn on 15 DEC 1996. Regional Court convicted absentia that he was learned Department Region- The Archives years prison five and sentenced the court has no al Court stated 15,1996. Alexandrov also testi- December a decision its files. record of such Investigative Service that the National fied (referred judge not have a The court did (NIS), government relied upon which document) in the to as “chairman” subpoena was determining that Finally, named Nikolov communist loyal to the new forgery, is on the form used presented document Alexandrov. regime persecuted *5 convic- in civil court cases: for decisions questioned immigration court also The form are on a different tions issued During questioning, Alexandrov. not “Deci- entitled “Conviction” which is that he was assistant Alexandrov stated sion.” Montana, Uinden for the secretary of Omo copy a 2. Alexandrov has submitted Bulgaria. The in Northwest Lorn district on 15 allegedly issued DEC subpoena a questioned also Alexan- immigration court (the purported date as the same Department report regarding a State drov above) conviction, by the National Inves- majority of Macedonians live says the (NIS) in Mon- branch tigation Service country. Alexandrov in the south of the by Captain R. Kostadi- signed tana and that “there are also Macedonians testified having record of nov. The NIS has no country.” He throughout, throughout the it subpoena, nor did em- issued such a occurred the that his arrests testified in 1996 or R. Kostadinov ploy Captain a major- the and southwest —with northwest thereafter. arrest, beating, ity of the incidents fraud indicator significant most The occurring in the southwest. subpoena that the NIS would this document is person to summoning a subpoena issue a immigra- before the proceedings In the have The courts Regional the Court. court, entire claim rested the INS’s tion authority and subpoena independent forgeries. The Service alleged upon may re- A case be forms. subpoena alleged arrests and dispute the did not conclu- only after the to a court ferred to have that Alexandrov claimed beatings at which investigation, sion of the NIS consists The evidence suffered. Service’s evaluate a would prosecutor time by prepared entirely of two memoranda and, request the necessary, would case Embassy and the States Sofia the United It is unheard subpoena. court to issue The first testimony of John McGruder. person to summon of for NIS (hereinafter, the Grencik “Memorandum” court. 13, 1998, Memorandum) February is dated medical cer- submitted Sofia, 3. Alexandrov Embassy Consular “From:
and is Regional by the allegedly issued tificates Section, Consul.” Theresa Grencik—Vice Municipal in Lom and the hos- 1. In the case of the the name of Hospital [sic] pital judge signed Montana. Neither institution who the court decision has record of sentencing years these certificates. him to five imprison- allegedly ment that was issued Section concludes that Consular 1996, Regional Court Lom on 15 DEC forgeries. these documents are all Ms. Alcorn stated that Nikolov is the Recognizing problems with document, translator of Memorandum, 27, 1998, August Kath- fact, judge. judge’s In name is V. Alcorn, Counsel, leen L. Assistant District Nikolov, signature as evidenced Detroit, Michigan, sent a letter to Peter right the bottom corner of the docu- Moffat, Affairs, Asylum request- Office ment. The name Nikolai translator’s First, ing analysis. regard a second with Therefore, Nikolov. fact that to the Grencik Memorandum’s conclusion court did not a judge have named Niko- Regional did not have a Court lov in 1996 remains evidence of the inau- “Nikolov,” judge named Ms. Alcorn noted conviction, thenticity of the court as are very clearly that the documents note that the other defects mentioned in Theresa “Nikolov” was the translator of the docu- 13, February Grencik’s memo dated appear judge ment and did not to be the Additionally, according 1998. to court signed Additionally, who the document. records, case number 135 num- [the case regard to the Grencik Memorandum’s approximately ber is one third down the subpoena conclusion that no issued on De- page right edge] near the is a case be- existed, cember Ms. Alcorn noted tween G. Kostadinov and R. Kaltehevu. that Alexandrov claimed to have received correctly points Ms. Alcorn out that subpoena on October 1996. Acknowl- “[tjhese was issued on 20 OCT edging that two sig- errors could *6 error, Despite subpoena the nificantly court,” hurt the case in Al-Ms. has a number of other flaws. The Na- corn a requested second review of the (NIS) tional Investigative Service still documents. having has no record of issued such Thus, (hereinaf- another Memorandum on 20 OCT or on ter, Memorandum) the Hazel Sep- dated memo, day. other As noted in the initial tember day 1998—the same as the the did employ NIS R. Kostadi- hearing in and decision this case—was is- Moreover, nov in 1996. after 1995 NIS Sofia, Embassy sued “From: Consular rank, investigators did not have if so Section, Mike Hazel—Vice Consul.” The NIS, Kostadinov did work for he would states, Hazel Memorandum in entirety: its signed “Captain.” have with the rank per Alcorn, request As of Kathleen The other previous defects noted Detroit, Assistant District Counsel in regarding protocol memo of the issu- Michigan, the Consular Section has re- of a subpoena summoning ance and NIS examined the documents submitted person to court were confirmed. support of of Mr. asy- [sic] Alexandrov’s application. lum This review was con- At hearing, John McGruder testified special ducted with speaker attention to the two via phone on behalf of the Service pointed errors out regarding Ms. Alcorn. forgeries.4 McGruder testi- Labor, 4. McGruder Rights testified that he was the Execu- temporary and but was on a Oceans, Affairs, tive Director for the Bureau Asylum of Envi- detail to the Office of which is ronment, Science, Democracy, Democracy, Human Rights, in the Bureau of Human case, say I that it was morning categorically cannot with Hazel the spoke he fied that person any particular authority.” rested testifying. Service prior to con- merely had McGruder report and was then asked he even McGruder Embassy. from the On firm that it was embassy’s investigator knew who the was. cross-examination, McGruder was asked testified, I “Again, He I do not know. reports. Re- preparation about the one who know that Mike Hazel is records, testi- the court McGruder garding signed the document.” McGruder been “would have fied that the statements signatories then asked whether the somebody Regional in the Court” made Hazel, memos, spoke Bul- two Grencik to the they would have been made and that Regard- garian. McGruder did not know. officer. He Embassy’s investigating then Grencik, ing McGruder testified that he understanding that it was his testified that I’ve never talked “never met woman. officer went to the Re- investigating only talked with her at all. I’ve clarification on the get gional Court Further, regarding any Mike.” conclusions following the errors documents Memorandum, in the McGruder Grencik He testified that Memorandum. that he “It was based on testified believed that there investigating officer learned department, for the procedures standard would, named Nikolov. This judge is a I in this case because like but do not know however, both memoranda’s contradict with the woman at said I’ve never talked judge no named Ni- findings that there is all.” kolov.5 Em- asked how the McGruder was then whether McGruder was then asked the court did not bassy determined that conducted Grencik and Hazel themselves files. a record of the decision its have it could have investigations or whether person- that he did not testified McGruder investigated someone else been who know, understanding ally based on his but reports. McGruder testified authored the report procedures, the Hazel general he had no idea whether Grencik saying organized department “that the directly and it was Hazel were involved has no record of such stated that the court in- “certainly possible” that someone else reports Now sometimes these things. report. He vestigated and authored person the name of the provide will that, *7 stated they not.” they interviewed. This time did and it investigating have officers no then conceded that he had McGruder by the might signed off on have been to how the information was knowledge as of the sec- vice consul who is the head that the court. He testified
obtained from procedure. Again tion. that’s standard general knowledge proce- of based I employed, have and Sometimes we dure, of position “it have been a would in Bulgaria did it don’t know whether authority gener- who was someone not, employed or but we have this case things sorts of routine- ally do these —we police- former local nationals who were conceded, however, ly.” He then I investigators.... or don’t men former the individual with “since I don’t know happened this case. embassy] spoken in this know what whom have [the Labor, which states that "most Department Practices for within the U.S. of all judicial confidence in their State. citizens have little system.” Department 5. Alexandrov also cites Country Reports Rights on Human State's likely person that he did not came from an unidentified again He then testified it investigators gave who the were but that the NIS who unidentified know office, my important thing perspective person “the from at the consular’s but Department perspective, taking responsibility.” and the it full “Mike Hazel is may appropriate legally, understanding be not but the Counsel then confirmed his taking responsibility are for the ones who issue: individuals, vice documents are the again just I’d like to confirm that And signed who these sheets.” consuls person we don’t know the at the NIS following: was then asked the McGruder don’t who made statement. We you they got “But have no idea who this authority authority, know the from, they got information whether had to make person that statement. We directly Bulgarian information from the filing don’t know what kind of personnel through investigators court officials system they did search to confirm that you Bulgarian don’t know what court offi- don’t, information. And we we don’t they got cials the information from?” know who is the consulate made responded: certainly McGruder “That’s that statement to. true.” responded: McGruder “These are all true Regarding subpoena, McGruder’s statements.” McGruder did caution coun- (“I’m answers were the same. JA embassy sel that “a vice consul at the has going afraid the answer is to be the same. responsibility taken full for based on the I’m, know, As far I taking as [Grencik] may information that she have collected responsibility for the statement. Whether may gotten herself or she have from some- not, initially or not she made it or I don’t But, that, body else.” regard- he conceded document, know.... Because this ing the information Grencik’s Memoran- may statement well have been made dum, “I don’t know. I’ve never talked may It have been made even [Grencik]. responsibility with her. She has taken know.”). I predecessor. her don’t that statement. And whether it’s her con- type Counsel then asked McGruder what clusion or accepting her conclusion Investigative records the National Ser- others, from I do not know.” that, keeps. vice McGruder testified “I I, you. can’t Again, only you Regarding tell can tell the medical certifications the what it’s like in government alleged forged, other countries of similar to be McGru- background and a lot of them are not unhelpful. der was likewise He testified They electronic country specific knowledge databases. are hand rec- that he had no just you might expected ords like have Bulgaria hospital about or how the would maybe years ago.” the U.S. keep Counsel records. McGruder testified that he might asked whether NIS have investigation made was not sure how the *8 mistake, “I, if “[especially they given really are I pro- the don’t know the conducted— (indiscerni- wrong date to look for.” I suspect they McGruder re- cedures and did ble) sponded that he “wouldn’t want to venture investigation.” whoever did the Coun- there,” “very possible” but that it was the sel then confirmed: “You don’t know who wrong place NIS looked the for hospitals the either of these searched for records, certificates, subpoena just and that he know you “d[idn’t] these these don’t many ways they how different they they would have know who at the consulate told on, run a tried to search.” Later McGru- didn’t find these certificates?” McGruder essentially agreed der responded: the information “True.” him beating up hauling to the effort of and him then returned Counsel Grencik, Regarding police provides to the station unless he Memorandum. testified, I previ- “As mentioned cogent McGruder some information.” The second in- woman. I ously, I have never met the testimony, according stance of incredible a sheet on this have no idea. Her name is court, immigration the during was Alex- to me and that’s all.” He piece paper androv’s of his second description arrest testified, however, spoken that he had visiting parents while in Lom. The phone with Hazel a “number times.” the immigration court stated that Alexandrov training kind of was asked what McGruder struck, he said was not but then later on Hazel had and McGruder background and Again said he slapped. he was the Court anything specific. not know On redi- did being waffling detected that as and rect, whether government asked the upon way questioning based ordinary was “collected in the information suddenly evolved he realized that what Depart- course of the business telling get he was would Court not upon by and “relied the State De- ment” asylum him an application so therefore it partment” and McGruder said that was. suddenly say he decided he’d better he on the of the Grencik Mem- It was basis slapped. had been Memorandum, orandum, Hazel however, entirety testimony, The of this immigra- testimony McGruder’s “Q: you consists of this: struck? A: Were that, clear, con- tion court determined No, threatened, not, really. I was but evidence, unequivocal the doc- vincing, I slapped was few times.” uments were fraudulent and Alexandrov’s immigration The court identified a third was frivolous. Es- application testimony regarding instance of incredible sentially, the court found determinative the fourth incident where Alexandrov tes- confirm that these that McGruder “did tified he was beaten and detained over- every day during are used reports night. immigration The court stated: course of business within the State De- believe, I Again he used the term indi- partment upon.” and that are relied cating that was not at all sure that he found, immigration The court also based telling he was true. what was Court essentially upon allegedly fraudulent I think I He was held and then he said documents, testimony that Alexandrov’s Again, held about 16 hours. not credible. if you’re going believes to be held Court credibility finding, the adverse For hours, say I think you’re going pointed to a few immigration court also I say I was held 16 hours. You would in- testimony instances of it found almost was held 16 hours or was held regard The first was with credible. day; something all of the other than a alleged Alexandrov’s detention beat- qualifying I think I was held 16 hours.6 immi- ing eight for seven to hours. The questioned of all court then gration court stated: “First easy it for Alexandrov to leave just inherently why finds that this is was so Court to, if country gov- on a visa They’re going incredible. student for his opinion, probably detain someone ernment had issued Court’s Finally, regarding the medical cer- they go 7 or to the trial. more than 8 hours *9 exactly testimony point you did do was as beaten? A: Yes. What 6. Alexandrov’s on this ”Q: and, I, you? They a long you A: beat me with club follows: How were held? A: Q: Were and hands.” I think I was held about 16 hours. 404 country persecution or well- Memo- “because
tificates discussed the Grencik randum, account of persecution court stated: fear of on immigration founded willing race, nationality, membership not to find as a religion, “But the Court is fraudulent political opin- matter of law that this was or particular group, social 1101(a)(42)(A). court did immigration ap- § The information.” ion.” 8 U.S.C. explain why it found the other docu- proof plication bears the burden in the memos fraudulent past ments mentioned demonstrating that he has suffered a frivo- as a matter of law and therefore or has a reasonable fear of persecution 1208.13(a). certif- application, lous but not the medical § persecution. future 8 C.F.R. entirely icates when the evidence turn first to Alexandrov’s due Immigration Appeals Board of same. The Alexan process argument -specifically, — affirmed, apparently its errone- following finding claim that the of frivolous drov’s reopen, of the motion to see granting ous C.F.R. ness was erroneous. Under 8 2, appeals. n. Alexandrov supra 1208.20, § finding “a of frivolousness does automatically an adverse II. flow from Muhanna, credibility determination.” 399 challenges immigration Alexandrov Rather, immigration F.3d credibility finding court’s adverse court must supported by that it is not substan- basis alien know- specifically find[] argues tial evidence. He also that he was ingly asylum application. filed a frivolous process immigra- on the denied due based section, purposes asylum For of this an tion court’s consideration the application is frivolous if of its mate- Hazel Memoranda. For the reasons that follow, deliberately rial elements is fabricated. argument per- we find Alexandrov’s only if finding shall be made Such points. suasive on both is immigration judge the Board satis- Immigra the Board of Because during applicant, fied that the the course Appeals adopted immigration tion proceedings, of the has had sufficient comment, without court’s decision any discrep- for opportunity to account immigration Court reviews the court’s de implausible aspects ancies or cision as the final administrative order. claim. (6th 417, Ashcroft, v. 397 419 Hasan F.3d § 8 C.F.R. 1208.20. Cir.2005). Questions of law are reviewed novo, 407, Ashcroft, de Ali v. 366 F.3d 409 pro The Due Process Clause also (6th Cir.2004), and this affirms an Court rights an circum tects alien’s these peti court’s decision that a Although stances. the Federal Rules of eligibility for tioner has failed to establish apply immigration pro Evidence do not reasonable, “supported by it is Gonzales, ceedings, v. Fed.Appx. Kasa 128 substantial, probative evidence on the (6th Cir.2005) 435, (citing Dallo v. whole,” record considered as a INS v. (6th INS, 581, Cir.1985)), 765 F.2d Elias-Zacarias, 481, 478, 502 U.S. 112 immigration must due provide courts still (1992). 812, 117 S.Ct. L.Ed.2d 38 INS, 106 Fed. process of law. Ileana v. (6th Cir.2004); Immigration Appx.
Pursuant
to the
and Na-
353-54
see also
Act,
tionality
asylum applicant
Ezeagwuna Ashcroft,
must
v.
325 F.3d
Cir.2003)
(3d
“refugee.”
(noting
show that he is a
8 U.S.C.
test
“[t]he
1158(b).
§
...
refugee
person
admissibility
A
is a
who
of evidence
is whether
its
unwilling
probative
or unable to return to his home
the evidence is
and whether
*10
405
reliability
to
fundamentally fair so as
trustworthiness.”
Id. at
use is
law.”)
process of
deprive
by
the alien of due
406. The court was troubled
the dates
INS,
v.
898 F.2d
(quoting
only
Bustos-Torres
of the
in that it
provided
letter
was
(5th Cir.1990)).
1053, 1055
petitioner
days
a few
before the hear-
ing. Id. Most concerning to the court was
hearsay might
unreliable
“Highly
that the
Yongo v.
process problems.”
raise due
multiple hearsay
letter is
of the most
Cir.2004).
(1st
INS,
27,
This
355 F.3d
31
troubling kind.
It
report
seeks to
state-
against
cautioned
excessive
Court has also
ments and conduct of three declarants
by
upon hearsay reports prepared
reliance
who are far removed from
evidence
Department of State. Rexha v. Gon
sought
They
to be introduced.
(6th
pur-
are
zales,
413, 418
Cir.
Fed.Appx.
portedly individuals who told the investi-
2006)
...
that the
(“Although
we believe
that
gator
aspects
certain
of the docu-
muster,
question
passes
here
we
report
appeared
ments
to be fraudulent. Not
immigration
emphatically
reiterate
only does Susser have no direct knowl-
the Board should exercise ex
courts and
edge
investigation,
of the
he did
relying
reports
on such
treme caution
directly
even
communicate with John
Asylum applicants
deny
claims.
Larrea,
hearsay
the declarant whose
of law and
process
are entitled to the due
Therefore,
repeating.
statements he is
government
excessive deference to
speaker
the current'
un-
by
of the evidence
shallow evaluation
—Susser—was
credibility
able to even evaluate the
court
immigration
would be unwarranted.
preceding
the immediate
declarant—
Gonzales, 430 F.3d
See Benslimane v.
only
Larrea —who of course was himself
(7th Cir.2005)
J.).”).7
(Posner,
Further,
proponent
hearsay.
we do
leading
Ezeag
case in this area is
The
any
not know whether Larrea had
inter-
(3d
Ashcroft,
wuna v.
conduct a review omitted). Citing Ezeagwuna, we citations safeguard would be procedural that and by us not- justify distinguished report the before could its destroyed if the Board report that the by invoking ing assertions simply decisions pro Department that themselves experi- the State background and indicated the evaluating validity their no means for vide It also summa- investigator. of the ence hide behind the ... The Board cannot that to the investigation the led rized letterhead.”). Finally, Department’s false that Kasa had submitted conclusion absolutely have court noted that “we any the hear- Though ... documentation. ‘investiga information about what no to its say creates doubts as document of, investigation how the tion’ consisted or trustworthiness, confirms its report In combina in this case. was conducted by speci- reliability and trustworthiness above, we tion the concerns we note investigation taken in the fying steps of infor complete that the dearth believe purpose that of the clarifying and investigator or the inves mation about the to investigation was never made clear as not undermines the letter tigation [] government. members of the Albanian unhelpful.” only untrustworthy, but also Additionally, that Id. at 440. we stated Id.8 summary of the report’s detailed “[t]he only embassy investigation place that took but discussed re This Court al Kasa, report’s reliability, it also Appx Fed. at 440-41. tressed the ports 128 first, meaningful opportunity must lowed petitioner petitioner noted that “the We Thus, Embassy report.” Id.9 to re to rebut given meaningful [opportunity] be evidence,” hearsay “where a document is admitted spond to the harmful sec peti ond, trustworthy primarily upon but not relied and the “whether the evidence is opportunity fair- tioner receives the to rebut and reliable affects the fundamental High It letter as an sworn in the Court of Bamenda. 8. The Third Circuit attached the Embassy investigator’s conclusion appendix opinion. It stated in full: is fraudulent. It is the Em- this document writing I am to for- Dear Ms. Feldman: bassy investigator's conclusion that arrest investigation, by ward the of an results application warrant and for bail documents Foreign post, present- Service of documents are also fraudulent. The arrest warrant asylum application support ed in of the key charge lacks information such as the above-named individual. These docu- appearance and dates of and time. number by your us office. ments were forwarded to allegedly application for bail was The Certificate, Legal Regarding the Medico signed by an who has never individual in the Director of Administrative affairs hope president served as of the court. Hospital Provincial of Bamenda stated that helpful. If we can that this information is stamp used for the the round form and the do not be of further assistance. Please fake, Cértificate are and that there is no hesitate to contact us. hospital Glory record at the medical Sincerely, J. Director Office of Marc Susser Obianuju. no doctor He also noted that Country Reports Asylum Affairs of James N. Chefor has ever name investigator hospital. at worked by stating sug- We concluded '‘[t]his 9. Yaounde, Cameroon, Embassy the U.S. gests report a means of that the use of this as fraudulent. concluded that this document is proof fundamentally was not unfair. Further Regarding the affidavits dated October contributing the fundamental fairness of 15, 1999, president November report's admission is the IJ’s failure sole, High Bamenda stated that the rely report pri- Court of on the as the or even stamp mary, concluding Commissioner for round and the that the identifi- reason for Kasa, Fed.Appx. stamps He further stated Oaths are fake. cation card was false.” registered had been or neither affidavit court, NIS, hospi- from the through his information conclusions the document’s much that witnesses, tals. There is not we do know fundamental fairness apparent aside from the conclusions of the impinged.” Id. has not been proceedings *12 mysterious investigation. at 441. Furthermore, Report the Hazel is dated standards, the A. Pursuant to these 30, day This is the September 1998. same upon immigration court’s reliance hearing' and oral deci- of Alexandrov’s the hearsay Department State the of asylum sion where he was denied violated Alexandrov’s due Reports peti- found to have submitted frivolous rights. process not given op- tion. Alexandrov was in Alexan The two memoranda portunity to rebut the conclusions of the even less reliable than the drov’s case are testify than report opposition other to In Ezeagunma. Ezeagunma,
letter Thus, reports’ conclusions. we con- provided the letters at least stated who court immigration clude that the failed to investigator with information about Regulations comply with the and therefore F.3d at 411-12. reliability. document’s 325 cannot finding court’s be sustained. “Director investigator upon relied The Additionally, immigration court’s de- affairs in the Provincial of Administrative regarding application cision frivolous pres as “the of Bamenda” as well Hospital entirely Department on the of was based Bamenda.” Id. High ident of the Court of reports testimony. State and McGruder’s here, The and Hazel memoranda There was no other evidence whatsoever however, degree of detail. lack even this that the documents were fraud- to indicate clearly unre The Grencik Memorandum is Department ulent. conclude that the We admittedly points of were liable as both its reports of in this case do not meet State does mistaken. The Hazel Memorandum and relia- our standards of trustworthiness type of clarify any degree what bility improperly and therefore were relied investigation conducted or who the was immigration court. Because upon Moreover, investigator was. McGruder’s pieces of evidence for were the sole clarify whether there is testimony does not and the sole factor the government, Regional at the Judge in fact a Nikolov upon making court relied immigration fact, testimony In Court. McGruder’s determination, application frivolous its reliability on the casts further doubt clearly by their prejudiced Alexandrov was Department reports and is entire therefore VACATE the admission.10 We ly unhelpful. We do not know who as it was based on finding of frivolousness than investigator was or if there was more in violation of the Due evidence admitted investigation qualifications or the one Process Clause. investigator. We do not know supposed participated in whether Grencik or Hazel immigration B. court’s adverse The investigations. do not know finding supported credibility is not investigator was Bulgarian whether evidence. by substantial investiga do not know how the used. We case, immigration In this do not know who tion was conducted. We credibility an adverse court also made provided Department of State with explain tirely court does not troubling the same. The It also that the why court records and with re- court concluded that the are sufficient the memoranda fraudulent, clearly but did not were medi- gard two documents but not the to the finding regard to the make the same cal records. records, when the evidence was en- medical suddenly realized that what Credibility findings “must be evolved he finding. Sylla v. reasons,” get telling he was the Court would not by specific supported INS, (6th Cir.2004), him therefore application so 388 F.3d suddenly say decided he’d better he credibility findings “go must he adverse slapped. ... had been applicant’s [and] the heart of an claim ‘cannot be based on an irrelevant inconsis- however, entirety testimony, of this ” v. Id. Daneshvar Ash- tency.’ (quoting “Q: you struck? A: consists this: Were (6th Cir.2004)). croft, 355 F.3d n. 2 No, threatened, not, really. I but findings An must also immigration court’s slapped a few times.” as a be based “on the considered record *13 immigration court identified a third Elias-Zacarias, at whole.” 502 U.S. testimony regarding instance of incredible S.Ct. the fourth incident where Alexandrov tes- over- tified he was beaten and detained hearsay report is ex
Once the immigration cluded, night. The court stated: adverse immigration court’s credibility by finding supported is not sub believe, I Again he used the term indi- earlier, evidence. noted the im stantial As that at all that cating he was not sure migration court found three instances of telling what he was true. was Court First, testimony Alexandrov’s incredible. He held and then he said I think I was testimony regard to Alexandrov’s Again, was held about 16 hours. arrested, detained, that he was and beaten if you’re going Court believes to be held hours, eight immigration for seven to hours, you’re going say I think to court stated: say I was held 16 hours. You would of all was held 16 hours or I was held almost
First the Court finds this is just inherently They’re go- day; something all of the other than a incredible. to, ing qualifying in the I think I was held 16 hours.11 opinion, probably Court’s than 7 detain someone more or 8 hours to We do lend credence they go beating if to the effort him up immigration findings court’s first and third hauling police him to the station compelled they and are to conclude that provides cogent unless he some informa- supported by are not substantial evidence. tion. little, They have no in fact and basis have Essentially, the court found Alexandrov’s any, findings ap- basis in reason. Both because, testimony incredible the immi- pear nothing immigra- to be more than the gration opinion, court’s the detention and personal tion court’s long beliefs on how beating longer. should have lasted Sec- proper beatings and detentions should last. ond, immigration court found that will not find sup- substantial evidence Alexandrov porting credibility an adverse determina- struck, pure speculation
said he was not
but then later on tion based on the
of an
immigration
he said he
slapped. Again
finding—
was
the Court
court. The second
being waffling
story
detected that as
claim
changed
Alexandrov
his
upon
way
questioning
slapped
agree
based
he was
if we were to
—even
"I,
testimony
point
gration
suggest
11. Alexandrov's
on this
was
court would
I think I
”Q:
long
you
as follows:
A:
How
were
held?
was held about 16 hours” is an incredible
Q:
I, I think I was held about 16
statement and demonstrates that Alexandrov
hours.
statement,
you
exactly
lying,
suggests
Were
beaten? A: Yes. What
did
but
"I
that the
you?
They
day,”
do to
A:
beat me with a club
was held almost all
is somehow more
and,
precise
and hands.” It is curious that the immi-
and would have been credible.
court,
cantly,
embassy
of the
not alone
the consular section
immigration
does
with the
unquestionably reopened
in Sofia
its docu-
credibility
adverse
determina-
support an
authenticity
light
inquiry
ment
the tran-
all we have is
Although
tion.
supposed
two
“errors”
the Grencik
us,
immigration
we find the
script before
memorandum —and the conclusion that the
questionable
one
conclusion
be
court’s
petitioner’s
forgeries
documents were
transcript.
in the
appears
on what
based
confirmed.
reasons,
immigration court’s
For these
supposed
is not
The first of the
errors in the
credibility determination
adverse
memorandum turned out to be no
evidence.
supported
substantial
all;
error
document submitted
III.
petitioner
prove
alleged
convic-
regional
tion in the
court did indeed bear
above,
discussed
we
For the reasons
purported signature
Judge
of a
Niko-
review,
VACATE
petition
GRANT the
(the
purported
lov
surname of the
transla-
decisions,
RE-
court’s
immigration
well),
tor as
and Mr. Hazel reaffirmed that
MAND for further consideration before
regional
judge
court had no
of that
Essentially
court.
different
testimony
Mr.
*14
name
McGruder’s
case leaves us “more
every aspect of this
contrary;
simply
not to the
he
ex-
was
Gonzales,
Mece v.
puzzled,”
than a little
(identi-
plained that the Hazel memoranda
(6th Cir.2005),
562,
and we
415 F.3d
copies
apparently
cal
had
been transmitted
pressed
point
anything
to
to
would be hard
1998)
30,
September 21 and September
on
resembling
proper
fair and
in this case
judge
that
“named” in the
advised
Finally,
appears
it also
to us
procedure.
document was Nikolov. Mr.
questioned
finding of a frivo-
having
that
vacated the
say
actually
did not
that there
McGruder
eligi-
Alexandrov would be
application,
lous
judge
of that name on the court in
was
adjustment of status to lawful
ble for an
according to Hazel the other
1996. And
proceed-
and further
permanent resident
pointed
Ms.
had
out
defects that
asylum application would be
ings on his
conviction—
petitioner’s purported
in the
unnecessary.
namely that the form used was one em-
only in civil cases and that
ployed
NELSON,
Judge,
A.
Circuit
DAVID
regional
court
department
archives
dissenting.
that
no record of such a
said
the court had
by
com-
Although I am troubled
evidenced the document’s
decision—still
hearsay
government’s
on which the
pound
authenticity.
lack of
rested,
say
immigra-
case
I cannot
The consular section’s reexamination
reliance on the memoranda
tion court’s
piece of
yielded
important
matter
an
Ha-
by
Consuls Grencik and
prepared
Vice
that had
overlooked
new information
been
fundamentally unfair.
zel was
initially:
purport-
on the
the case number
records,
conviction, according
court
ed
to
presented
Ezeag
situation
Unlike the
having no
specified
that of a
civil case
was
(3d
Ashcroft,
wuna v.
State purported subpoena far NIS As as the States, authenticity concerned, of the Grencik and it turned out that Ms. the issu- seriously ques is not in error as to Hazel memoranda Grencik had been case, Mr. ance date shown on the document. signifi- here. In this more tioned 15, 2002, February immigration court on had no record of stated that the NIS Hazel moreover, on hearing and the remand the corrected having subpoena issued a year full August 2003—a date, that the not held until He also reiterated however. it Although a half after the remand. an individual with a employ did not NIS the remand was intended appears on the now corresponding to that shown name adjust- to consideration of an document, to be limited and he confirmed Ms. Grencik’s status, peti- petitioner’s of for ment report that it was unheard earlier lawyer believed—and not regional tioner’s own anyone to summon to the the NIS had, in the case court, sub- without some reason —that independent a court that had words, pur- all “reopened been authority its own poena and used poses.” forms. able to obtain petitioner nor If the had been
It is true that neither Ms. Grencik on the document authen- spoken directly claimed have relevant evidence Mr. Hazel August of ticity question prior to depart- the NIS or with the archives why it would not have I think we know of no reason regional ment of the court. assume, therefore, him such open proffer that the vice con- been evidence must hearing petition- at the on remand. The relying given on information suls were proffer per- such a investigator by er’s failure to make them local hired immigration judge suades me that the did embassy. obviously It would have been finding adhering original to have not err in to his preferable for the memoranda forged petitioner name. had submitted investigator identified this material, Department routinely forgeries that the documents. The were know view, my suppose and I see no reason to investigators relies on hired the normal *15 business, however, and, for what- that their fabrication was deliberate. course worth, may deny petition it of the vice for re- ever be both would therefore vouching accuracy consuls were for the of view. provided
the information this instance. provided
The information was not with- time, specifies.
out I be- adequate Given
lieve, petitioner should have been able
to counter at least some of the factual ACADEMY, Plaintiff- BRENTWOOD representations set forth in the memoran- Appellee/Cross-Appellant, representations da had those been untrue. v. peculiar procedural Because of the course SECONDARY SCHOOL TENNESSEE took, petitioner this case had more ASSOCIATION; ATHLETIC Ronnie ample than time which to seek evidence Carter, Executive Director and tending subpoena to show that the and the Defendants-Ap capacity, individual yet conviction were authentic after no all— pellants/Cross-Appellees. produced: such evidence was 03-5245, Nos. 03-5278. The decision which the judge initially found the and con- Appeals, United States Court forgeries viction to at a be was rendered Sixth Circuit. hearing September held on 1998. A Argued: Dec. copy of the Grencik memorandum had 17, 2006. and Filed: March Decided petitioner been sent to the more than six Immigra- months earlier. The Board of Appeals
tion remanded the case to the