Vatyan v. Mukasey ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VLADIMIR VATYAN; AZATUHI 
PETROSYAN, No. 04-72386
Petitioners, Agency Nos.
v.  A75-725-875
MICHAEL B. MUKASEY,* Attorney A75-725-876
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 18, 2007—Pasadena, California
Filed November 27, 2007
Before: Raymond C. Fisher and Richard R. Clifton,
Circuit Judges, and Ricardo S. Martinez, District Judge.**
Opinion by Judge Fisher;
Dissent by Judge Clifton
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
**The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
15153
VATYAN v. MUKASEY 15155
COUNSEL
Vitaly B. Sigal, Liberman & Sigal, Los Angeles, California,
for the petitioners.
Susan L. Siegal, David W. Folts, Stephen Paskey and Molly
L. DeBusschere (argued), U.S. Department of Justice, Wash-
ington, D.C., for the respondent.
15156 VATYAN v. MUKASEY
OPINION
FISHER, Circuit Judge:
Vladimir Vatyan, an Armenian citizen, petitions for review
of a Board of Immigration Appeals decision upholding an
Immigration Judge’s (IJ) denial of Vatyan’s application for
asylum, withholding of removal and relief under the United
Nations Convention Against Torture. During his asylum hear-
ing, Vatyan attempted to introduce documents purportedly
from the Armenian government but the IJ refused to consider
them, apparently because Vatyan had failed to obtain a gov-
ernment certification of their authenticity. We hold that an
immigration petitioner may seek to authenticate a public doc-
ument by any established means — including through the
petitioner’s own testimony if consistent with the Federal
Rules of Evidence — and therefore the IJ erred in requiring
official certification.
I.
According to his asylum application, Vatyan was born in
Azerbaijan but, amid the social unrest that accompanied the
decline of the Soviet Union, was forcibly deported to Arme-
nia. In Armenia, Vatyan faced further hardship. Like other
ethnic Armenians who had lived in Azerbaijan, Vatyan was
marginalized and had trouble finding work. His son was con-
scripted into the military and died under mysterious circum-
stances suggesting murder. In response to Vatyan’s request
for an investigation into his son’s death, the military told him
that his son had committed suicide. Vatyan claims that his
objections to this and other injustices made him a target of the
Armenian government, which allegedly imprisoned him for
several months. After a human rights organization secured his
release, Vatyan fled to the United States. When he arrived, he
applied for asylum.
At his asylum hearing, Vatyan attempted to introduce sev-
eral documents that he claimed bolstered his account of perse-
VATYAN v. MUKASEY 15157
cution. The documents included: (1) a 1999 letter, purportedly
from the Armenian Ministry of Internal Affairs and National
Security, stating that Vatyan’s son had committed suicide and
that there would be no further investigation into his son’s
death; (2) a 1999 death certificate for his son; and (3) a 2000
letter, also purportedly from the Ministry of Internal Affairs,
that “certif[ied]” Vatyan’s imprisonment from January to
April 2000.
The government objected to the documents as not properly
certified under the authentication standards for foreign public
documents set forth by 8 C.F.R. § 287.6(c), and thus inadmis-
sible. The IJ, acknowledging our holding in Khan v. INS, 237
F.3d 1143, 1144 (9th Cir. 2001) (per curiam), that a foreign
public document may be authenticated in an immigration pro-
ceeding either under § 287.6(c) or through “any recognized
procedure,” asked Vatyan’s counsel whether the documents
had “been authenticated in any other way?” When Vatyan’s
counsel responded that Vatyan would authenticate the docu-
ments through his own testimony, the IJ rejected this pro-
posed authentication method and granted the government’s
motion to exclude the documents, stating that “they have not
been properly authenticated either under [8 C.F.R. § 287.6] or
in any other recognized manner under the Federal Rules of
Civil Procedure as is outlined in Khan v. INS, 237 F.3d 1143.”
Later in the hearing, Vatyan’s counsel — apparently unde-
terred by the IJ’s ruling — attempted again to introduce the
documents by eliciting Vatyan’s testimony regarding the gov-
ernment stamps appearing on the documents, how he had
obtained the documents and why he had not obtained certifi-
cation for them. In response to these attempts, the IJ reiterated
his ruling that the petitioner’s own testimony regarding chain
of custody could not authenticate the documents, and thus the
documents were inadmissible. As the IJ saw it, “how the doc-
uments came into [Vatyan’s] possession” and why Vatyan
had not attempted to obtain certification were not “relevant”
because the documents had “not been properly authenticated.”
15158 VATYAN v. MUKASEY
At the conclusion of the hearing, the IJ found that Vatyan
lacked credibility. The IJ based his finding on, among other
things, discrepancies between the dates of imprisonment
Vatyan claimed on his asylum application and the dates he
had given during his testimony at the hearing. The IJ also
found discrepancies in Vatyan’s story of how he secured his
release from the prison. The IJ concluded that these and other
inconsistencies “make[ ] me question whether [Vatyan] ever,
in fact, was in the custody of the internal affairs prison . . .
as he alleged.” The IJ did not consider Vatyan’s documentary
evidence, which purported to certify the fact of his imprison-
ment. Based on the adverse credibility finding, the IJ denied
relief. The Board of Immigration Appeals summarily affirmed
and this timely petition for review followed.
II.
We review an IJ’s decision to exclude a document from
evidence for lack of authentication for an abuse of discretion.
See United States v. Whitworth, 856 F.2d 1268, 1283 (9th Cir.
1988). However, if the IJ’s rejection of the document is based
on a purely legal ground, we review de novo. Khan, 237 F.3d
at 1144. Because we conclude that the IJ legally erred in
assuming that the petitioner’s own testimony could not be
used to authenticate foreign public documents in an immigra-
tion proceeding, this case falls into the latter category.1
1
Any characterization of our opinion as improperly overturning the IJ”s
factual determination with our own judgment that Vatyan’s testimony
regarding the chain of custody of the relevant documents was credible and
concluding that the IJ should have authenticated the documents on this
basis is a misreading of both the factual record and our limited holding.
The transcript clearly reveals that the IJ found the documents were not
authenticated because he believed that Vatyan’s testimony could not be a
proper method of authentication, not because he disbelieved Vatyan’s tes-
timony about the documents. See AR 100-01 (stating that Vatyan’s
attempts to establish a chain of custody and to explain why he had not
taken a document to a “United States Consulate,” were not relevant
because the document had, “in [f]act, [ ] not been properly authenticated”).
VATYAN v. MUKASEY 15159
[1] We recognized in Khan that “[d]ocuments may be
authenticated in immigration proceedings through any recog-
nized procedure, such as those required by INS regulations or
by the Federal Rules of Civil Procedure.” 237 F.3d at 1144(citation and internal quotation marks omitted). Here, the IJ
refused to consider Vatyan’s testimony as relevant evidence
that could support his attempt to authenticate the documents.
[2] The IJ’s mistaken assumption is understandable,
because established authentication methods for foreign public
documents generally require a government certification. See
8 C.F.R. § 287.6(c) (requiring a “certificate . . . signed by a
foreign officer so authorized by the signatory country”); Fed.
R. Civ. P. 44(a)(2) (requiring “a final certification as to the
genuineness of the signature and official position (i) of the
[foreign official attesting to the document], or (ii) of any for-
eign official whose certificate of genuineness of signature and
official position relates to the attestation or is in a chain of
certificates of genuineness . . .”); Fed. R. Evid. 902(3) (similar).2
Moreover, Khan neither explicitly addressed whether an IJ
may consider the petitioner’s own testimony in ruling on
authentication nor expressly specified whether in permitting
“any recognized procedure” of authentication we meant to
allow only recognized procedures for foreign public docu-
Thus, although the IJ “heard” Vatyan’s testimony regarding the docu-
ments, he never considered this testimony as relevant to the issue of
authentication. To illustrate this critical distinction, under the IJ’s mis-
taken understanding of our precedent, even a petitioner whom the IJ found
credible would not be able to rely on his own testimony to authenticate a
document. Our holding today is limited to correcting this misinterpretation
of the law.
2
Each of these mechanisms provides two avenues for authentication:
either by production of an “official publication” of the document or by a
“copy” accompanied by an official certification. See, e.g., 8 C.F.R.
§ 287.6(c). Vatyan has not argued that any of the documents he provided
were official publications, and we express no opinion on that question
here.
15160 VATYAN v. MUKASEY
ments or whether we were referring more broadly to recog-
nized procedures for authentication of documents in general.
We now clarify that an immigration petitioner may resort to
any recognized procedure for authentication of documents in
general, including the procedures permitted under Federal
Rule of Evidence 901, and thus a petitioner’s failure to obtain
government certification of a foreign public document’s
authenticity is not necessarily a bar to admission of the docu-
ment.
Requiring an asylum petitioner to obtain a certification
from the very government he claims has persecuted him or
has failed to protect him from persecution would in some
cases create an insuperable barrier to admission of authentic
documents. We have previously, in dicta, recognized this
problem:
The exclusion of documents because the Chinese
authorities refused to authenticate them runs contrary
to our longstanding principle excusing such authenti-
cation because ‘[p]ersecutors are hardly likely to
provide their victims with [documentation] attesting
to their acts of persecution.’
Ding v. Ashcroft, 387 F.3d 1131, 1135 n.4 (9th Cir. 2004)
(quoting Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th
Cir. 1984)). Other circuits have more directly confronted this
question, rejecting the apparent assumption made by the IJ in
this case. For example, in Liu v. Ashcroft, 372 F.3d 529 (3d
Cir. 2004), the Third Circuit endorsed the government’s view
that “asylum applicants can not always reasonably be
expected to have an authenticated document from an alleged
persecutor,” and held as a result that the IJ had erred by view-
ing the procedures set forth in § 287.6 as the exclusive means
of authentication for foreign public documents. Id. at 532-33.
Other circuits are in accord. See Yan v. Gonzales, 438 F.3d
1249, 1256 n.7 (10th Cir. 2006) (“Since [§ 287.6’s] proce-
dures generally require attestation of documents by the very
VATYAN v. MUKASEY 15161
government the alien is seeking to escape, courts generally do
not view the alien’s failure to obtain authentication as requir-
ing the rejection of a document.”) (emphasis in original); Cao
He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.
2005) (similar); see also Shtaro v. Gonzales, 435 F.3d 711,
717 (7th Cir. 2006) (“[F]ailure to . . . authenticate [under
§ 287.6] does not amount to presumptive proof of falsity.”).
Similarly, authentication by other common, but expensive,
means — such as expert testimony — may be comparably dif-
ficult for an immigrant facing deportation to produce. Thus
we have recognized that “an asylum applicant does not have
an affirmative duty to have a document examiner authenticate
every piece of documentary evidence.” Lin v. Gonzales, 434
F.3d 1158, 1165 (9th Cir. 2006).3
[3] Both the Federal Rules of Civil Procedure and the Fed-
eral Rules of Evidence acknowledge that certification is not
the exclusive means of authenticating a foreign public docu-
ment. Federal Rule of Civil Procedure 44(a)(2) provides that
“[i]f reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of the [foreign offi-
cial record], the court may, for good cause shown . . . admit
an attested copy without final certification.” This exception
exists because “it is recognized that in some situations it may
be difficult or even impossible to satisfy the basic require-
3
In Lin, we applied our rule that “[m]ere failure to authenticate docu-
ments, at least in the absence of evidence undermining their reliability,
does not constitute sufficient foundation for an adverse credibility find-
ing.” 434 F.3d at 1164 (quoting Wang v. INS, 352 F.3d 1250, 1254 (9th
Cir. 2003)) (alteration in original). That rule does not apply here because
the IJ did not use Vatyan’s failure to authenticate the documents to support
the adverse credibility finding, but instead simply excluded the documents
from evidence and refused to consider them at all. Cf. Lin, 434 F.3d at
1160 (stating that in that case “the IJ denied [Lin’s] asylum application not
because she thought Lin lacked credibility or that Lin told an implausible
story,” but instead because the IJ “was suspicious about the official docu-
ments submitted by Lin”).
15162 VATYAN v. MUKASEY
ments of the rule” and is intended to apply “only when it is
shown that the party has been unable to satisfy the basic
requirements of the amended rule despite his reasonable
efforts.” Fed. R. Civ. P. 44, 1966 advisory committee’s note.
Similarly, if the party offering the evidence is unable to self-
authenticate it pursuant to Federal Rule of Evidence Rule 902,
the party is not precluded from attempting to authenticate it
under the general provision of Rule 901 that “[t]he require-
ment of authentication or identification as a condition prece-
dent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its propo-
nent claims.” See United States v. Childs, 5 F.3d 1328, 1336
(9th Cir. 1993) (holding that district court did not abuse its
discretion by permitting Canadian public documents to be
authenticated under Rule 901 by testimony of an Alberta
DMV employee).
[4] The IJ therefore erred insofar as he required Vatyan to
produce some form of official certification as a mandatory
pre-requisite to authenticating his proffered documents. Rule
901 of the Federal Rules of Evidence “allows the district court
to admit evidence if sufficient proof has been introduced so
that a reasonable juror could find in favor of authenticity or
identification.” United States v. Pang, 362 F.3d 1187, 1193
(9th Cir. 2004) (internal quotation marks omitted). Thus, for
example, the First Circuit in Yongo v. INS, 355 F.3d 27 (1st
Cir. 2004), held that German immigration records could be
authenticated through an INS officer’s testimony regarding
their source and their appearance. Id. at 31. This is consistent
with Rule 901, which lists as an example of valid authentica-
tion devices the “[t]estimony of [a] witness with knowledge.”
Fed. R. Evid. 901(b)(1).
[5] Here, Vatyan provided evidence that arguably could
have supported authentication. A longtime resident of Arme-
nia, Vatyan testified that he recognized the official stamps on
the documents as stamps of the Armenian government. More-
over, he attempted to establish a chain of custody by explain-
VATYAN v. MUKASEY 15163
ing how the documents came into his possession. The dissent
notes that “Vatyan has not identified anything further that he
might have testified to.” Diss. at 15166. Because we address
the IJ’s interpretation of the law, however, what is critical is
not whether the petitioner could provide additional evidence,
but rather for what purpose the IJ considered the evidence that
is already in the record. Vatyan’s testimony was relevant evi-
dence of whether the proffered documents were authentic, and
the IJ could and should have weighed that testimony rather
than relying solely on Vatyan’s failure to produce officially
certified copies.
[6] Of course, simply because an IJ may consider a peti-
tioner’s testimony in support of authentication does not mean
that the IJ must accept the documents into evidence or deem
their contents to be true. Our ruling today does not alter the
degree of deference this circuit will accord an IJ’s factual
findings. Immigration judges retain broad discretion to accept
a document as authentic or not based on the particular factual
showing presented.4 We hold as a matter of law only that the
IJ must consider Vatyan’s testimony as evidence that is rele-
vant to the issue of the documents’ authenticity. After listen-
ing to the testimony for this purpose, the IJ can assess the
4
For example, although we have identified the unique burdens facing
asylum petitioners attempting to authenticate foreign public documents, an
IJ need not assume that such barriers exist in all cases and may weigh the
petitioner’s failure to authenticate the document through more established
means. Nor is an IJ precluded from applying his or her own “judicial expe-
rience” or pointing out “obvious warning signs of forgery” in considering
whether a document should be admitted into evidence. See Lin, 434 F.3d
at 1164 (citing Bropleh v. Gonzales, 428 F.3d 772, 777 (8th Cir. 2005)).
“[A]n IJ need not accept all documents as authentic nor credit documen-
tary submissions without careful scrutiny” so long as the rejection is
“premised on more than a guess or surmise.” Id. at 1160. Finally, even if
an IJ concludes that the petitioner has presented sufficient prima facie evi-
dence of a document’s authenticity to admit it into evidence, the IJ as the
trier of fact retains discretion to weigh “the evidence’s credibility and pro-
bative force.” Whitworth, 856 F.2d at 1283 (internal quotation marks omit-
ted).
15164 VATYAN v. MUKASEY
credibility of that testimony and determine whether the bal-
ance of the evidence is sufficiently compelling to satisfy him
that the documents are what Vatyan claims them to be.5
III.
[7] The IJ’s error was not harmless. Notably, the IJ’s credi-
bility determination was the result of, rather than the basis of,
his finding that the documents were not authenticated.6 Spe-
cifically, the IJ’s findings were premised in part on his doubts
regarding “whether [Vatyan], in fact, was in the custody of
the internal affairs prison . . . as he alleged.” This statement
was in direct conflict with one of the documents that pur-
ported to certify that Vatyan had in fact been imprisoned. Had
the IJ appropriately considered Vatyan’s testimony and found
it sufficient to authenticate the relevant documents, he might
have arrived at the opposite conclusion regarding Vatyan’s
credibility and the merits of his asylum claim. As a result,
“the erroneous aspects of the IJ’s reasoning are not tangential
to the findings [he] made.” Cao He Lin, 428 F.3d at 406; see
also Liu, 372 F.3d at 534 (granting petition for review where
the IJ made a “legal determination” that “fundamentally
upsets the balancing of facts and evidence upon which [the]
agency’s decision is based”).
In sum, we hold that a petitioner’s own testimony is a
proper method that may be used to authenticate foreign public
documents. Because the IJ rejected the documents based on
5
Part of this reasoning will rely on the IJ’s assessment of the petitioner’s
credibility. But to find the petitioner not credible simply because he does
not produce an certified copy is not enough. Otherwise, the reasoning
would be circular, finding a petitioner not sufficiently credible to authenti-
cate a document because he does not have an authenticated document to
support his testimony. As explained in Section III, below, the dissent’s
reading of the IJ’s credibility/authenticity findings falls into this circularity
trap.
6
Significantly, the IJ initially determined that the documents were not
properly authenticated even before he had heard Vatyan’s testimony.
VATYAN v. MUKASEY 15165
the mistaken belief that this method of authentication was
unavailable, we grant the petition for review, vacate the BIA’s
order and remand for further proceedings consistent with this
opinion. We express no view about the ultimate admissibility
or probity of the documents.
PETITION GRANTED; REMANDED.
CLIFTON, Circuit Judge, dissenting:
The case turns on the Immigration Judge’s decision not to
admit into evidence certain exhibits alleged by petitioner Vla-
dimir Vatyan to be documents issued by the Armenian gov-
ernment. The IJ concluded that the documents had not been
authenticated. Even though the IJ was assigned the responsi-
bility to make that evidentiary ruling, identified the pertinent
controlling precedent by name, heard what Vatyan had to say
about the documents, and explicitly made a determination
supported by substantial evidence that Vatyan was not credi-
ble, we grant the petition for review and send the case back
for another round because the majority thinks that the IJ might
have disregarded the possibility that the documents could
have been authenticated by Vatyan’s own testimony. The
majority opinion ignores reality, both in faulting the evidenti-
ary ruling made by the IJ and in concluding that the ruling
could have made any difference in the outcome of the immi-
gration court proceeding. I respectfully dissent.
1. The evidentiary ruling
The IJ did not abuse his discretion or make a legal error in
deciding that the documents had not been authenticated. The
IJ knew what Vatyan claimed they were. The IJ reviewed the
documents and marked them for identification. He also heard
what Vatyan had to say about the documents. Although the
majority opinion suggests otherwise, Vatyan was not cut off
15166 VATYAN v. MUKASEY
when he tried to testify about the documents — his testimony
on that subject spanned ten pages of transcript. Nor did the IJ
exclude testimony about how Vatyan obtained the documents.
To the contrary, the IJ explicitly said, “I’d like to know how
they came into his possession.” In his argument on appeal,
Vatyan has not identified anything further that he might have
testified to. There is simply no reason to conclude that any-
thing is missing from the existing record, let alone that
Vatyan had a better case to make than he had already made.
Moreover, there is nothing in the record suggesting that the
IJ took a narrow view of how documents could be authenti-
cated. It is true, as the majority opinion describes, at 15157,
that the government appeared to take the position during the
immigration court hearing that authentication was limited to
certification under 8 C.F.R. § 287.6(c). But the IJ got it right,
explicitly citing by name our court’s decision in Khan v. INS,
237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam), for the
proposition that a foreign public document may be authenti-
cated in an immigration proceeding either under § 287.6(c) or,
in the words used by the IJ during the hearing, in “any other
recognized manner.”
The majority opinion identifies some uncertainty in our
caselaw as to whether “any other recognized manner” of
authentication might include Rule 901of the Federal Rules of
Evidence. Nothing in the IJ’s citation to Khan suggests that
he read his authority to admit evidence narrowly, however.
Nothing in the record of this case suggests that the IJ misun-
derstood his ability to admit the disputed documents into evi-
dence if he believed they were authentic.
The premise of the majority — that the IJ must have
rejected the documents because they were not certified —
cannot be squared with the IJ’s citation of Kahn and his
explicit recognition that exhibits could be authenticated in
“any other recognized manner.” The problem with Vatyan’s
effort to authenticate the documents with his own testimony
VATYAN v. MUKASEY 15167
was not that his testimony was insufficient under the law. It
was that the IJ did not believe Vatyan’s testimony. Vatyan
failed to prove authenticity as a matter of fact.
The majority opinion reads too much into the IJ’s later
statements, well after the authentication discussion had con-
cluded, about the relevance of Vatyan’s testimony about the
documents. The majority takes these statements to mean that
the IJ had refused to consider whether this testimony could
help authenticate Vatyan’s documents. The record fails to
support such a reading. When the IJ first considered the
authentication issue, he asked Vatyan’s lawyer how he
planned to authenticate the documents. Vatyan’s lawyer said
that Vatyan would testify on their behalf. Soon thereafter, the
IJ concluded that Vatyan’s documents had not been properly
authenticated. It is plain that the IJ at this point had weighed
and rejected the idea that Vatyan’s testimony would be factu-
ally sufficient for authentication. That was hardly a surprise,
given the IJ’s doubts about Vatyan’s credibility, which culmi-
nated in the adverse credibility determination. The statements
made by the IJ during Vatyan’s testimony merely indicate that
the IJ did not need to hear further testimony from Vatyan on
the matter, because he had already heard enough, and addi-
tional testimony by Vatyan would not persuade him. The IJ
by that time had moved beyond the question of authentication.
The IJ did not abuse his discretion or make a legal error in
deciding that the documents had not been authenticated.
2. The lack of prejudice
Vatyan was not prejudiced by the evidentiary error which
the majority claims to have found. This was a bench trial. The
IJ served as both the gatekeeper for evidence and the ultimate
finder of fact. The rules of evidence are not ordinarily applied
as stringently in bench trials or in administrative proceedings
as in jury trials. See 1 Weinstein’s Federal Evidence, 2d
§ 102.06, at 102-13 (2006); 2 Admin. L. & Prac. § 5.52 (2d
15168 VATYAN v. MUKASEY
ed. 2007) (“[T]he rules of evidence are designed to protect
unsophisticated members of a jury and hence are not appro-
priate for hearings in which the trier of fact is sophisticated
and usually expert in the area of the factual controversy.”).
Appellate review of evidentiary rulings in district court bench
trials, where the same judge is making both the evidentiary
rulings and the ultimate findings of fact, is ordinarily highly
deferential. See Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837,
843 (9th Cir. 2004).
Even in a criminal prosecution before a jury, where the
most care is taken to apply the rules of evidence correctly, a
district court’s evidentiary ruling during trial is reviewed for
abuse of discretion. See United States v. Alvarez, 358 F.3d
1194, 1205 (9th Cir. 2004) (noting “wide discretion”). An evi-
dentiary ruling even in such a criminal jury trial will be
reversed for abuse of discretion only if such error “more
likely than not affected the verdict.” See United States v.
Pang, 362 F.3d 1187, 1192 (9th Cir. 2004). The standard in
this case, in which we are reviewing the decision of an admin-
istrative agency resulting from a bench trial, is surely at least
as high.
There is simply no serious possibility that the IJ’s pur-
ported failure to consider Vatyan’s testimony with regard to
the authenticity of the disputed documents could have
affected the IJ’s ultimate conclusion here, let alone done so
“more likely than not.” The majority goes astray when it dis-
regards the fact that the IJ who ruled on the authenticity of the
documents was the same person who explicitly and unequivo-
cally found that Vatyan was not a credible witness. It defies
logic to think that either Vatyan’s testimony about the origin
of these documents or the admission of the documents them-
selves would miraculously cause the IJ to believe the rest of
Vatyan’s testimony.
Take, for example, the letter purportedly from the Ministry
of Internal Affairs which “certified” that Vatyan had been
VATYAN v. MUKASEY 15169
imprisoned, as Vatyan testified. The IJ did not believe
Vatyan’s testimony about that imprisonment. The letter on its
face appeared to corroborate Vatyan’s story, but Vatyan pro-
vided nothing to authenticate the letter beyond his own testi-
mony. If the IJ had believed Vatyan’s testimony about the
imprisonment, then he might have believed the document to
have been authentic. But he didn’t. The IJ heard that testi-
mony and looked at the document. If the document’s appear-
ance and Vatyan’s testimony about the document were
persuasive, the IJ might have been led to conclude that
Vatyan had been imprisoned as he testified and should be
found credible. But that didn’t happen, either. Despite seeing
the document and hearing the testimony, he explicitly found
that Vatyan “was not a credible witness.”
There is simply no serious possibility that the IJ’s pur-
ported failure to consider Vatyan’s testimony with regard to
the authenticity of the disputed foreign documents affected
the ultimate outcome of the proceeding. Requiring the IJ to
“consider” what Vatyan had to say about these documents
does not change the reality that he already heard what Vatyan
had to say and was not persuaded.
3. Conclusion
I am confident that if we were reviewing a similar evidenti-
ary decision made by a federal district judge, we would not
reach this result. We would affirm a similar rejection of docu-
ments by a district court based on lack of authentication, both
because we would accept the district judge’s evidentiary rul-
ing, and because we understand that errors in evidentiary rul-
ings should be disregarded unless they actually affect the
outcome. We should reach the same result here. Our review
of factual findings by an IJ is, after all, supposed to be even
more deferential than our review of factual findings by a dis-
trict court. A factual finding by a district court is subject to
being overturned if we conclude it to be “clearly erroneous,”
but a finding of fact by an IJ, including findings that a peti-
15170 VATYAN v. MUKASEY
tioner is not credible or a certain document is not authentic,
must be upheld “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
§ 1251(b)(4)(B). Our court’s recurring tendency to hold IJs to
more exacting standards is not justified under the statute.
Remanding this matter is an empty and pointless exercise,
and it is not cost free. Not only will Vatyan’s case continue
to take time and resources, the precedent established by this
decision will make it even more difficult for immigration
judges to work through their heavy caseloads. The message to
IJs from this decision is to admit all proffered evidence and
not to try to focus the presentation of evidence on subjects
that could actually affect the substantive outcome of the case.
We wouldn’t say that to a district judge. We shouldn’t say it
to an immigration judge.
The petition for review should be denied.