Bassel Banat v. Michael Mukasey ( 2009 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 08-1298
    ________________
    Bassel R. Banat,                         *
    *
    Petitioner,                  *
    *      Petition for Review of an
    v.                                 *      Order of the Board of
    *      Immigration Appeals.
    Eric H. Holder, Jr., Attorney            *
    General of the United States of          *          [PUBLISHED]
    America,1                                *
    *
    Respondent.                  *
    ________________
    Submitted: November 13, 2008
    Filed: March 6, 2009
    ________________
    Before RILEY, HANSEN, and MELLOY, Circuit Judges.
    ________________
    HANSEN, Circuit Judge.
    _____________________
    1
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
    Eric H. Holder, Jr. is automatically substituted for former Attorney General Michael
    B. Mukasey as respondent in this case.
    Bassel Banat petitions for review of the Board of Immigration Appeals' (BIA)
    order denying him asylum, arguing that his due process rights were violated when the
    Immigration Judge (IJ) based his adverse credibility determination on a State
    Department investigation report that Banat claims was inherently unreliable. We
    agree that the report was unreliable, and we grant the petition.
    I.
    Bassel Banat is a Palestinian refugee who was born and lived most of his life
    in Beirut, Lebanon. He finished college in Beirut and visited his brother, a United
    States citizen, in Minnesota in January 2001, where he attended college classes and
    applied for admission into graduate programs in the United States. He was not
    accepted to any graduate programs and originally planned to leave the United States
    on September 6, 2001, with his father, who was also visiting the United States. For
    unstated reasons, Banat decided to stay in the United States and did not return to
    Beirut until December 30, 2001, when his visitor visa expired.
    Banat returned to the United States less than four weeks later on January 25,
    2002, using a Lebanese passport. Banat applied for asylum with the Immigration and
    Naturalization Service (INS) on August 28, 2002. A hearing was held on October 4,
    2005, and Banat testified on his own behalf. Banat testified that upon his return to
    Beirut on January 1, 2002, he was approached at the Beirut airport by two men with
    Syrian accents. He was told to go with the men to answer some questions, and he was
    blindfolded, handcuffed, and driven away in a car. Lebanese officials at the airport
    witnessed his abduction but did nothing to stop it. According to Banat's story, he was
    held for several days at a Palestinian refugee camp, questioned, and beaten. His
    captors spoke with Syrian accents, but he thought some were also Lebanese. The
    outside of the building indicated it belonged to the Popular Front for the Liberation
    of Palestine (PFLP). His captors accused him of working as a spy for the FBI or the
    CIA and wanted to know why he changed his travel plans just before the terrorist
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    attacks of 9/11 and stayed in the United States for several months following. They
    released him but did not take his passport and told him they might contact him for
    further questioning. They also tried to recruit him to fight with them against Israel.
    Following his release, Banat stayed at his family's home for about two weeks.
    His father bought him a plane ticket and encouraged him to return to the United
    States. Banat arrived back in the United States on January 25, 2002. After arriving
    in the United States, Banat's father sent him a handwritten letter purporting to be from
    the PFLP that had been sent to Banat's Lebanon address prior to his return to the
    United States. The letter commanded Banat to return for questioning on January 26,
    2002, and threatened that if Banat failed to report, "the arms of revolutionary justice
    will reach you and get back at you. Death to the traitors . . . " (Pet'r's Add. at 42.)
    Banat's parents allegedly received numerous threatening inquiries from the PFLP
    about his whereabouts. When his father died, Banat did not attend the funeral, and
    allegedly there were armed PFLP men at the funeral looking for Banat.
    Banat introduced the handwritten PFLP letter at the October 4, 2005 hearing.
    The IJ noted that the letter "purport[ed] on its face to be a letter addressed to [Banat]
    from a recognized terrorist organization, the PFLP, which is one of the worst operators
    . . . among the Palestinian terrorist organizations" (Pet'r's App. at 73), and that it
    "ha[d] what purport[ed] to be an original seal of the PFLP" (id. at 75). The
    Department of Homeland Security (DHS) had not verified the authenticity of the
    letter, and the IJ inquired with the State Department about its authenticity. The State
    Department responded with a letter dated March 22, 2006, wherein it acknowledged
    that the U.S. Embassy in Beirut had not had any previous experience with that type
    of document, but that its investigation suggested that the letter had been fabricated.
    The IJ forwarded a copy of the State Department letter to the parties and held another
    hearing on May 26, 2006. Banat objected to introduction of the State Department
    letter into evidence, arguing that it was "internally inconsistent, . . . inherently
    unreliable, improper evidence, [a] violation of due process, [and afforded Banat] no
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    opportunity to cross-examine." (Id. at 91.) Although Banat's counsel stated he could
    get affidavits from others contesting statements in the State Department letter, he did
    not offer them at the hearing. The IJ issued an oral decision finding that Banat was
    not credible based primarily on the IJ's conclusion that the PFLP letter had been
    fabricated. The IJ denied Banat's request for asylum, withholding of removal, and
    relief under the Convention Against Torture.
    Banat appealed the IJ's decision to the BIA. The BIA dismissed the appeal,
    concluding that introduction of the State Department letter did not violate Banat's due
    process rights, and it affirmed the IJ's adverse credibility determination. Banat now
    seeks review of the BIA's order dismissing his appeal.
    II.
    In an appeal from the BIA, we review the BIA's fact-findings for substantial
    evidence, and we review its legal determinations, as well as any constitutional
    challenges, de novo. Ntangsi v. Gonzales, 
    475 F.3d 1007
    , 1011-12 (8th Cir. 2007).
    Where the BIA adopts the IJ's reasoning, we review the IJ's decision as well. See
    Bhosale v. Mukasey, 
    549 F.3d 732
    , 735 (8th Cir. 2008). The IJ determined that if
    Banat's story had been credible, he would have found that Banat suffered past
    persecution and would have been entitled to relief. (Pet'r's Add. at 29.) The IJ
    ultimately discredited Banat's testimony, however, relying on the State Department
    letter's determination that the handwritten PFLP letter had been fabricated, coupled
    with the lack of any other corroboration for Banat's story. Adverse credibility
    determinations, like other findings of fact, must be supported by substantial evidence.
    See Mamana v. Gonzales, 
    436 F.3d 966
    , 968 (8th Cir. 2006). "An IJ making a[n
    adverse] credibility determination must give reasons that are specific enough that a
    reviewing court can appreciate the reasoning behind the decision and cogent enough
    that a reasonable adjudicator would not be compelled to reach the contrary
    conclusion." Guled v. Mukasey, 
    515 F.3d 872
    , 881 (8th Cir. 2008) (internal marks
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    omitted). The BIA affirmed the IJ's credibility finding based on its conclusion that
    introduction of the State Department letter did not violate Banat's right to due process.
    Banat argues that his due process rights were violated when the IJ relied on the
    State Department letter to make his adverse credibility determination. Although the
    Federal Rules of Evidence are not controlling in an immigration proceeding, the Fifth
    Amendment right to due process places limits on the evidence that may be considered
    in an immigration hearing. Tamenut v. Ashcroft, 
    361 F.3d 1060
    , 1061 (8th Cir.
    2004). Due process requires that the IJ consider only evidence that is "probative and
    its admission fundamentally fair." Tun v. Gonzales, 
    485 F.3d 1014
    , 1025-26 (8th Cir.
    2007) (internal marks omitted). The focus in a due process inquiry is on fairness. "'In
    the evidentiary context, fairness is closely related to the reliability and trustworthiness
    of the evidence.'" Ezeagwuna v. Ashcroft, 
    325 F.3d 396
    , 405 (3d Cir. 2003) (quoting
    Felzcerek v. INS, 
    75 F.3d 112
    , 115 (2d Cir. 1996)). Thus, Banat must show that the
    State Department letter was unreliable and untrustworthy and therefore improperly
    considered in violation of his right to due process.
    Banat's due process claim turns on the reliability of the investigation conducted
    by the State Department in response to the IJ's inquiry about the authenticity of the
    handwritten PFLP letter. We recognize that overseas investigations by State
    Department officials concerning the authenticity of documents purportedly originating
    in foreign countries are often necessary for the adjudication of an asylum claim. See,
    e.g., Rafiyev v. Mukasey, 
    536 F.3d 853
    , 856-57 (8th Cir. 2008) (affirming IJ's
    determination that documents were fraudulent based on examination by foreign
    document examiner and investigation by the U.S. Embassy in Azerbaijan).
    Nonetheless, when a report of an investigation concerning the authenticity of a
    document is presented in an asylum hearing, sufficient evidence must be presented to
    allow the IJ to determine the investigation's reliability and trustworthiness without
    surrendering that function to the author of the report. See Alexandrov v. Gonzales,
    
    442 F.3d 395
    , 405 (6th Cir. 2006) (reiterating that IJs and the BIA "should exercise
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    extreme caution in relying on" State Department reports to deny asylum claims
    because "excessive deference to the government or a shallow evaluation of the
    evidence by the immigration court would be unwarranted" (internal marks omitted));
    cf. Averianova v. Mukasey, 
    509 F.3d 890
    , 896 (8th Cir. 2007) (affirming IJ's
    conclusion that an INS investigation was trustworthy based on photographic evidence
    introduced by the INS that corroborated the investigation's results).
    Reliance on reports of investigations that do not provide sufficient information
    about how the investigation was conducted are fundamentally unfair because, without
    that information, it is nearly impossible for the immigration court to assess the report's
    probative value and the asylum applicant is not allowed a meaningful opportunity to
    rebut the investigation's allegations. See Anim v. Mukasey, 
    535 F.3d 243
    , 257 (4th
    Cir. 2008). "The Department of Justice itself has recognized the need for a detailed
    [investigation] report." Lin v. U.S. Dep't of Justice, 
    459 F.3d 255
    , 270 (2d Cir. 2006).
    According to the Department of Justice, "'[a] report that is simply a short statement
    that an investigator has determined an application to be fraudulent is of little benefit.
    Instead, the report should lay a proper foundation for its conclusion by reciting those
    factual steps taken by the investigator that caused the investigator to reach his or her
    conclusion.'" 
    Id. (quoting Memorandum
    from Bo Cooper, INS General Counsel, to
    Jeffrey Weiss, INS Director of International Affairs, Confidentiality of Asylum
    Applications and Overseas Verification of Documents and Application Information,
    at 6 (June 21, 2001)). For purposes of assessing the reliability of an investigation
    report, the Second Circuit distilled the Department of Justice's list of items that
    should be included in such a report down to three useful factors, including: "(i) the
    identity and qualifications of the investigator(s); (ii) the objective and extent of the
    investigation; and (iii) the methods used to verify the information discovered." 
    Id. at 271;
    see also 
    Anim, 535 F.3d at 257-58
    (discussing the same Department of Justice
    requirements for an investigation report); 
    Ezeagwuna, 325 F.3d at 407-08
    (expressing
    concern over the INS's attempt to use the prestige of the State Department letterhead
    to give credibility to an investigation report's contents); Balde v. Mukasey, 278 Fed.
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    Appx. 707, 709 (8th Cir. 2008) (unpublished) (citing Lin as describing the factors
    courts use to assess the reliability of investigation reports).
    The State Department letter in this case states that "an investigator" from the
    U.S. Embassy in Beirut met with "a contact" who worked closely with the Palestine
    Liberation Organization (PLO) and the PFLP; that the contact was shown a copy of
    the handwritten PFLP letter; and that the contact said it was fabricated based on three
    facts: the person identified as the author of the PFLP letter was unknown and would
    not sign such documents, the PLO and PFLP do not issue those types of documents,
    and the PFLP seal is widely available, making it easy to fabricate a letter from the
    PFLP. (Pet'r's Add. at 45.) From that, the State Department concluded that the PFLP
    letter had been fabricated. In the State Department report of the results of the
    investigation to the IJ, the investigator is not identified. All the report conveys is that
    the unidentified investigator showed the PFLP letter to an unidentified contact. There
    is no indication of the qualifications or experience of either the investigator or the
    contact. The extent of the investigation included merely showing the letter to the
    unidentified contact. And there is no indication that any attempt was made to verify
    the claims made by the unidentified contact. None of the Lin factors are met.
    Investigation reports that contained even more information about their respective
    investigations have been found to be too cursory to satisfy due process concerns. See
    
    Anim, 535 F.3d at 258
    ("In short, the letter's lack of information about the [unnamed]
    investigator, how the investigation was conducted, and how and why the named
    official reached his forgery conclusion make it practically impossible to assess the
    letter's reliability."); 
    Alexandrov, 442 F.3d at 407
    (holding that reliance on a State
    Department memorandum declaring documents to be fraudulent violated the
    petitioner's right to due process where the memorandum did "not clarify to any degree
    what type of investigation was conducted or who the investigator was"); 
    Lin, 459 F.3d at 271-72
    (finding an investigation report unreliable where, although it named the
    investigators, it provided no information about their qualifications, did not detail when
    and where conversations occurred upon which the report's conclusions relied, and it
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    did not detail what actions were taken to verify the information provided in the
    report); 
    Ezeagwuna, 325 F.3d at 408
    (concluding "that the complete dearth of
    information about the investigator or the investigation undermines the [investigation]
    letter as . . . untrustworthy").
    Not only does the State Department letter fail to provide any details about the
    investigation, it also includes multiple levels of hearsay. The letter was written by
    Nadia Tongour, Office Director for the Office of Country Reports and Asylum
    Affairs. In the letter, Ms. Tongour relayed information received from an unnamed
    investigator from the U.S. Embassy in Beirut who discussed the PFLP letter with an
    unnamed contact. There are at least three levels of hearsay–the contact to the
    Embassy investigator, the investigator to Ms. Tongour, and Ms. Tongour's written
    report–and likely more levels as it is not clear from the State Department letter that
    Ms. Tongour received the information she reported directly from the investigator.
    Although hearsay in and of itself is not prohibited in immigration proceedings, see 8
    C.F.R. § 1240.7(a), "[h]ighly unreliable hearsay might raise due process problems."
    
    Alexandrov, 442 F.3d at 405
    . "Multiple hearsay, where the declarant is steps removed
    from the original speaker, is particularly problematic because the declarant in all
    likelihood has been unable to evaluate the trustworthiness of the original speaker."
    
    Anim, 535 F.3d at 257
    . These concerns played out in this case. During the hearing,
    Banat questioned the reliability of the contact based on his alleged close ties to both
    the PFLP and the PLO, two groups who, according to Banat, are at odds with each
    other. Without more information about the contact or what the Embassy investigator
    did to corroborate the contact's reasons for concluding that the PFLP letter was
    fabricated, Banat is not able to effectively challenge the contact's credibility, and the
    IJ has no information on which to base a credibility assessment of the contact, the
    original speaker who concluded that the PFLP letter had been fabricated.
    We understand that hearsay in the form of a report of an investigation
    conducted by State Department officials is often the only practical method for
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    addressing the authenticity of foreign documents, and such hearsay evidence is
    allowed in immigration hearings where it is otherwise shown to be trustworthy. We
    fully recognize that divulging more information concerning the particulars of the
    investigations undertaken may, in some cases, run the very real risk of compromising
    and jeopardizing the physical safety of the clandestine sources, confidential contacts,
    and investigators (whether undercover or not) used by the State Department and the
    other agencies of the Executive Branch in foreign countries, particularly in the
    dangerous and shadowy world of dealing with violent terrorist organizations; and we
    readily admit that a proper balancing of the risks involved in such undertakings and
    in what to report openly about them is not within the ken (or the constitutional
    responsibility) of federal courts so far removed from the scene. However, as in this
    case, it does become the business of immigration judges and reviewing authorities like
    us to assess the reliability of the reports that are produced, and the report in this case
    was glaringly deficient in providing the most basic indicia of its circumstantial
    probability of reliability. There is no information provided about whether or not the
    Embassy had used either the "investigator" or the "contact" as a source of information
    in the past; whether the "investigator" was experienced or had any particular training
    in conducting such investigations; whether or not the "investigator" or the "contact"
    had provided any information that had proved to be correct and reliable in the past;
    and there is no representation that the Embassy itself considered the "contact" to be
    either reliable or well informed, or even knowledgeable about the reported matters.
    We conclude that the IJ's reliance on the State Department letter, which provided no
    details about the investigation that would allow the IJ to assess the investigation's
    reliability or trustworthiness and which contained multiple levels of hearsay, violated
    Banat's right to a fundamentally fair hearing.
    To be entitled to relief based on a due process violation, Banat must also show
    prejudice, or that the procedural error "had the potential for affecting the outcome."
    
    Tun, 485 F.3d at 1026
    (internal marks omitted). "[W]here a hearsay document is
    admitted but not primarily relied upon and the petitioner receives the opportunity to
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    rebut the document's conclusions through his witnesses, the fundamental fairness of
    the proceedings has not been impinged." 
    Alexandrov, 442 F.3d at 406-07
    (internal
    marks omitted). The State Department letter clearly had an effect on the outcome of
    Banat's asylum hearing. The IJ's conclusion that Banat was not entitled to asylum
    "turn[ed] entirely on issues of credibility." (Pet'r's Add. at 29.) The PFLP letter was
    the only contemporaneous corroboration for Banat's story, and the IJ relied heavily on
    the State Department letter to find that the PFLP letter had been fabricated. The IJ
    then relied primarily on the fabricated PFLP letter to support his conclusion that
    Banat's story was not credible. The IJ stated that if he would have found Banat
    credible, he would have been entitled to relief. (Id.) We agree with Banat that if the
    IJ did not consider the unreliable State Department letter, the proceeding may well
    have had a different outcome. See 
    Anim, 535 F.3d at 258
    -59 (finding prejudice from
    an IJ's reliance on an unreliable investigation report where the IJ stated that the fraud
    investigation would determine whether he believed the petitioner's story or not);
    
    Alexandrov, 442 F.3d at 407
    (finding prejudice where the unreliable investigation
    report was the sole piece of evidence relied upon by the IJ for its adverse findings).
    III.
    Banat was prejudiced when the IJ relied on the State Department letter to find
    Banat not credible in violation of Banat's right to due process during his asylum
    hearing. We therefore grant the petition for review, vacate the BIA's decision, and
    remand for further proceedings not inconsistent with this opinion. See 
    Tun, 485 F.3d at 1031
    .
    ______________________________
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