Angov v. Holder ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIKOLAY IVANOV ANGOV, No. 07-74963
Petitioner,
Agency No.
v. A096-227-355
LORETTA E. LYNCH, Attorney
General, ORDER AND
Respondent. AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 5, 2012—Pasadena, California
Filed December 4, 2013
Amended June 8, 2015
Before: Sidney R. Thomas, Chief Judge, Alex Kozinski
and Stephen S. Trott, Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Chief Judge Thomas
2 ANGOV V. HOLDER
SUMMARY*
Immigration
The panel withdrew its prior opinion and dissent, filed an
amended opinion and dissent, denied a petition for panel
rehearing, and denied on behalf of the court a petition for
rehearing en banc in a case in which the Board of
Immigration Appeals denied an application for asylum and
related relief on adverse credibility grounds based on a State
Department overseas investigation indicating that petitioner
had submitted fraudulent evidence.
The panel held that, on the record, the immigration judge
acted within his discretion in admitting into evidence a letter
prepared by the Director of Department of State’s Office of
Country Reports and Asylum Affairs in Bulgaria (“Bunton
Letter”), and in relying on it to find that police subpoenas
petitioner submitted were fraudulent.
The panel held that as an alien who never formally
entered the United States, petitioner had no constitutional
right to procedural due process, and thus the IJ’s reliance on
the Bunton Letter could not violate procedural due process.
The panel held that the IJ did not violate petitioner’s statutory
rights to examine evidence or cross-examine witnesses by
admitting the letter.
The panel also held that the IJ’s adverse credibility
finding based on the fraudulent subpoenas was supported by
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ANGOV V. HOLDER 3
substantial evidence and went to the heart of petitioner’s
claim of persecution by the Bulgarian police, and that he
failed to present other evidence to meet his burden of proof.
Dissenting, Chief Judge Thomas would hold that
unsworn, unauthenticated, hearsay letters—prepared for
litigation by the government and not subject to any form of
cross-examination—cannot form the sole basis for denying
asylum to an otherwise qualified applicant.
COUNSEL
Nicolette Glazer (argued), Law Offices of Larry R. Glazer,
Century City, California, for Petitioner.
Gregory G. Katsas, Assistant Attorney General, Barry J.
Pettinato, Assistant Director, Jesse Lloyd Busen (argued) and
Charles E. Canter, Attorneys, United States Department of
Justice, Civil Division, Washington, D.C., for Respondent.
ORDER
The opinion and dissent filed on December 4, 2013, and
published at 736 F.3d 1263, are hereby withdrawn and
replaced by the amended opinion and dissent filed
concurrently with this order. With these amendments, Judges
Kozinski and Trott have voted to deny the petition for panel
rehearing, Judge Kozinski has voted to deny the petition for
rehearing en banc and Judge Trott has so recommended.
Chief Judge Thomas has voted to grant the petition for panel
rehearing and the petition for rehearing en banc. The full
court has been advised of the petition for rehearing en banc,
4 ANGOV V. HOLDER
and no judge requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 35. The petitions for panel
rehearing and rehearing en banc are denied. No further
petitions for panel rehearing or rehearing en banc will be
entertained.
OPINION
KOZINSKI, Circuit Judge:
Does an immigration judge err by relying on a State
Department investigation of an asylum petitioner’s claim?
I. BACKGROUND
Nikolay Angov, a Bulgarian citizen, claims he was
persecuted by the Bulgarian government because he is
Roma.1 He alleges repeated abuse at the hands of the
Bulgarian police, including beatings, false accusations of
crimes and illegitimate arrests. After three years of this
treatment, he fled Bulgaria and sought asylum in the United
States.
An IJ conducted asylum hearings in early 2004, during
which Angov presented several documents, including two
Bulgarian subpoenas that ordered him to appear at a Sofia
police station. The immigration judge (“IJ”) allowed the
government to obtain a State Department investigation of
Angov’s allegations. See 8 C.F.R. § 208.11. The
investigation was conducted by our consulate in Sofia, and
1
Angov’s brief refers to him as “Roma” or “gypsy” interchangeably. So
do we.
ANGOV V. HOLDER 5
the results were summarized in a letter signed by Cynthia
Bunton, Director of Department of State’s Office of Country
Reports and Asylum Affairs.
The IJ admitted the Bunton Letter, which stated that the
Embassy had contacted “an official in the Archive
Department at the 5th Police District in Sofia.” The official
found a number of errors in the subpoenas, suggesting that
they were forgeries: (1) Three officers named in the
subpoena—Captain Donkov, Lieutenant Slavkov and
Investigator Vutov—never worked for the police department;
(2) the case and telephone numbers were wrong; and
(3) although the subpoenas mentioned room 4 on the second
floor of the department and room 5 on the first floor, there are
no rooms by those numbers. The official also explained
(4) that the seal on the subpoena was too small.
Bunton also stated that the embassy investigator (5) was
unable to locate Angov’s claimed past residences; and (6) that
the neighborhood where Angov lived was only twenty to
thirty percent Roma, though Angov claimed that he lived in
a “gypsy neighborhood.” Attached to the letter were five
photographs of the places the investigator had visited while
trying to verify the addresses.
Angov’s industrious lawyer submitted a plethora of
rebuttal evidence, including photos, maps, an article about
Angov’s neighborhood and a letter apparently signed by
someone named Daniela Mihaylova, who identified herself as
the legal programs director of a Roma human rights
organization in Bulgaria. Angov also argued that, without the
opportunity to cross-examine the investigator, the admission
of the Bunton Letter would violate his statutory and
constitutional rights.
6 ANGOV V. HOLDER
In response to Angov’s objection, the government
attorney asked the State Department to produce an employee
to testify about the investigation. State responded with a
letter authored by Nadia Tongour, Bunton’s successor. The
Tongour Letter provided some general background
information on State’s investigation procedures, but
explained that it’s State’s policy to refrain from providing
further specific information about an overseas investigation.
Based on the Bunton Letter, the IJ made an adverse
credibility finding and denied Angov’s applications for
asylum, withholding of removal and relief under the
Convention Against Torture. The Board of Immigration
Appeals (“BIA”) adopted and affirmed the IJ’s ruling denying
relief, and his determination that the subpoenas are
fraudulent. The BIA also denied Angov’s motion to
supplement the record with a recent Sixth Circuit opinion that
Angov claimed constituted new evidence of a “pattern and
practice” of law-breaking by officials in the Sofia consulate.
See Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir. 2006).
II. ANALYSIS
A. Motion to Remand
Angov claims the BIA abused its discretion by denying
his motion. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098
(9th Cir. 2005). His brief before the BIA spent just two
sentences explaining this argument:
Respondent respectfully submits a copy of
Alexandrov v. Gonzales to supplement the
record in this case. The document is
submitted to document a pattern and practice
ANGOV V. HOLDER 7
of procedural and substantive violations of the
law and applicable regulations by the
consulate in Sofia during overseas
investigations and in divulging the identity of
asylum applicants to the authorities in
Bulgaria in violation of C.F.R. 208.6 [sic].
“Since a motion to remand is so similar to a motion to
reopen, the motion to remand should be drafted in conformity
with the regulations pertinent to motions to reopen . . . .”
Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1988) (internal
quotation marks omitted). The applicable regulation provides
that a motion to reopen shall state “the new facts that will be
proven at a hearing to be held if the motion is granted” and be
supported by affidavits or other “evidentiary material.”
8 C.F.R. § 1003.2(c)(1). But Angov didn’t provide any
evidence supporting his motion nor did he even explain why
he believed that section 208.6 had been violated.2 The BIA
did not abuse its discretion in denying Angov’s motion to
remand.
B. Admission of the Bunton Letter
Angov claims that the admission of, and the IJ’s and
BIA’s reliance on, the Bunton Letter violated his statutory
and constitutional rights. See 8 U.S.C. § 1229a(b)(4)(B);
2
8 C.F.R. § 208.6(a) provides that “[i]nformation contained in or
pertaining to any asylum application . . . shall not be disclosed without the
written consent of the applicant.” Angov argues that Alexandrov “exposed
the improprieties that have riddled overseas investigations in the Sofia
consulate,” including that investigations were often conducted by foreign
service nationals, that someone other than a consular officer could have
authored embassy reports and that consular officials often signed reports
written by others. None of these arguments were presented to the BIA.
8 ANGOV V. HOLDER
8 C.F.R. § 1240.10(a)(4); Cinapian v. Holder, 567 F.3d 1067,
1074–75 (9th Cir. 2009). In considering Angov’s argument,
we review the IJ’s decision, except for the portion that the
BIA didn’t clearly adopt—here, the IJ’s conclusion that the
Department of State’s inability to verify Angov’s addresses
supported an adverse credibility finding. See Joseph v.
Holder, 600 F.3d 1235, 1239–40 (9th Cir. 2010). On that
issue, we review the BIA’s decision.
While we review legal questions de novo, “[t]he BIA’s
interpretation and application of the immigration laws are
generally entitled to deference.” Hernandez-Mancilla v.
Holder, 633 F.3d 1182, 1184 (9th Cir. 2011); Zetino v.
Holder, 622 F.3d 1007, 1011–12 (9th Cir. 2010). The
agency’s factual findings—such as its adverse credibility
determination—are reviewed for substantial evidence and can
be reversed only if the evidence “compels” a contrary
conclusion. See Rizk v. Holder, 629 F.3d 1083, 1087–88 (9th
Cir. 2011) (emphasis omitted).
(i) Due Process
Angov claims that the IJ’s reliance on the Bunton Letter
violated his constitutional right to procedural due process.
But Angov has no such right. He is an alien who has never
formally entered the United States. He presented himself at
the San Ysidro port of entry without valid entry documents
and sought asylum. “[A]n alien seeking admission has not
‘entered’ the United States, even if [he] is in fact physically
present.” Kwai Fun Wong v. United States, 373 F.3d 952,
971 (9th Cir. 2004). “[O]ur immigration laws have long
made a distinction between those aliens who have come to
our shores seeking admission . . . and those who are within
the United States after an entry.” Leng May Ma v. Barber,
ANGOV V. HOLDER 9
357 U.S. 185, 187 (1958). Aliens “who have once passed
through our gates, even illegally,” are afforded the full
panoply of procedural due process protections, and “may be
expelled only after proceedings conforming to traditional
standards of fairness.” Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 212 (1953). But those, like Angov, who
have never technically “entered” the United States have no
such rights. Id. For Angov, procedural due process is simply
“[w]hatever the procedure authorized by Congress” happens
to be. Id. (internal quotation marks omitted); see also Landon
v. Plasencia, 459 U.S. 21, 32 (1982) (“[A]n alien seeking
initial admission to the United States requests a privilege and
has no constitutional rights regarding his application . . . .”).
Angov’s claim of a procedural due process violation
simply can’t be squared with the Supreme Court’s teachings
in Mezei and Landon, nor with our circuit’s settled precedent.
See Barrera-Echavarria v. Rison, 44 F.3d 1441, 1449 (9th
Cir. 1995) (“[E]xcludable aliens have no procedural due
process rights in the admission process . . . .”).3
3
We note that four circuits have held that reliance on documents like the
Bunton Letter in asylum proceedings violates due process. See Banat v.
Holder, 557 F.3d 886, 892–93 (8th Cir. 2009); Anim v. Mukasey, 535 F.3d
243, 256–58 (4th Cir. 2008); Alexandrov, 442 F.3d at 407; Ezeagwuna v.
Ashcroft, 325 F.3d 396, 405–08 (3d Cir. 2003). Because Angov does not
have a constitutional right to procedural due process, that question is not
before us. We also note that two other circuits have held that asylum
applicants like Angov are entitled to certain “minimum due process” rights
in the application of their statutory rights. See Marincas v. Lewis, 92 F.3d
195, 203–04 (3d Cir. 1996); Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.
1984); see also Meachum v. Fano, 427 U.S. 215, 226 (1976). Whether
asylum applicants are owed such “minimum due process” is an open
question in our circuit, but it is not one we need to resolve here. Angov
was clearly given fair access to all his statutory rights. What he asks for
instead are due process protections that go beyond those which Congress
10 ANGOV V. HOLDER
(ii) Statutory Rights
Angov’s challenge to the admission of the Bunton Letter
is therefore purely statutory. In assessing such a challenge,
we must first ask whether the IJ made legal error by denying
Angov any of his statutory rights. Angov claims that he was
denied his right to examine evidence against him. See
8 U.S.C. § 1229a(b)(4)(B). But the record tells a different
story. He was allowed to examine the Bunton Letter, and
given ample time to produce substantial evidence to rebut it.
See p. 5 supra; cf. Cinapian, 567 F.3d at 1076 (had the
government given petitioners a chance to examine forensic
reports before hearing, they may have been able to produce
rebuttal evidence).
Angov also argues that he was denied his statutory right
to cross-examine the witnesses against him. We’ve held that,
before hearsay statements made by an absent witness can be
admitted into an immigration hearing, “‘the government must
make a reasonable effort . . . to afford the alien a reasonable
opportunity to confront the witnesses against him or her.’”
Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th
Cir. 2005) (quoting Saidane v. INS, 129 F.3d 1063, 1065 (9th
Cir. 1997)); see also § 1229a(b)(4)(B); Baliza v. INS,
709 F.2d 1231, 1234 (9th Cir. 1983).
The government is, of course, not required to produce
Bulgarian police officials at an immigration hearing in the
United States. Such a requirement would make it virtually
impossible for the government to introduce evidence
rebutting an alien’s claims relating to conduct abroad.
has provided him. But, as an alien who has never entered the United
States, those protections are unavailable to him.
ANGOV V. HOLDER 11
Instead Angov, and the dissent, claim that the immigration
authorities should have obtained a witness from the
Department of State to verify the letter’s contents. But
hauling State Department officials into court wouldn’t
ameliorate the dissent’s concerns, because the letters they
author inescapably rely on foreign officials who aren’t
amenable to cross-examination.
In any event, the government here did make a reasonable
effort to obtain a State Department witness, but was
prevented from doing so by State’s policy of not releasing
follow-up information regarding its overseas investigations.
The dissent claims that “allowing one executive branch
agency to rely on another executive branch agency’s blanket
policy of refusing to provide certain information is
tantamount to granting the government the kind of unfettered
discretion we repudiated in Baliza.” But Baliza offers no
support to the dissent’s position. There the government relied
on the affidavit of an alien’s ex-wife as the basis for a
fraudulent marriage charge while barely even trying to
investigate her whereabouts. The declarant was not a
government official and the government gave no justification
for failing to find her. By contrast, the declarant here is a
government official speaking in her official capacity. And
the immigration authorities’ decision not to present her in
person was made pursuant to a coordinate department’s
reasonable policy governing the secrecy and safety of its
officers. Because neither the immigration authorities nor the
State Department acted unreasonably in failing to compel
Bunton to testify, Angov’s statutory rights were not violated.
12 ANGOV V. HOLDER
(iii) Substantial Evidence
Because the IJ did not erroneously deny Angov a
statutory right, our review is limited to whether the IJ’s
adverse credibility finding was supported by substantial
evidence. “This strict standard bars a reviewing court from
independently weighing the evidence,” and requires us to
“deny the Petition unless Petitioner [has] presented evidence
so compelling that no reasonable factfinder could find that
Petitioner” was not credible. Singh v. INS, 134 F.3d 962, 966
(9th Cir. 1998) (internal quotation marks omitted).
Despite the generally flexible—and highly deferential—
nature of substantial evidence review, Angov appears to
argue for a per se rule under which immigration judges must
blind themselves to the findings of a State Department letter,
unless it provides particular information regarding how an
investigation was conducted. Surprisingly, Angov’s radical
proposal accords with the view of the Second Circuit, which
has held that a document akin to the Bunton Letter was
“inherently unreliable” because it didn’t reveal the
qualifications of the investigator, the extent of the
investigation or the methods used to verify the information.
Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 271–72 (2d Cir.
2006). Under Second Circuit law, therefore, documents like
the Bunton Letter categorically “cannot support [an] adverse
credibility finding.” Id. at 272. We reject this approach.
Substantial evidence review requires an appellate court to
consider the reasonableness of an agency’s conclusions; it
does not empower us to craft quasi-statutory criteria
governing the admissibility of evidence in agency
proceedings. In light of our departure from the holding of a
sister circuit—one with the second-largest immigration
ANGOV V. HOLDER 13
docket in the country—we offer a thorough explanation for
our rationale.
1. Congress and the Attorney General have accorded
aliens like Angov a variety of procedural rights, including the
right to be present at the hearing; to be represented by
counsel; to examine the evidence against him and present
counter-evidence; to cross-examine witnesses; and to have a
written record kept of the proceedings. 8 U.S.C.
§ 1229a(b)(4). But neither the statute nor the regulations give
the asylum applicant a right to a particular quality of the
evidence presented against him. Instead, he is given the right
to have an impartial adjudicator assess the evidence. When
exercising grace towards individuals entitled no procedural
rights under the constitution, Congress can set the precise
limits of what it grants and what it withholds. That then
defines the process an asylum seeker like Angov is due.
With that in mind, let’s put Angov’s claims into some
context. The IJ found that Angov presented forged
documents. This is a serious matter that, if true, should not
merely result in the immediate termination of Angov’s
asylum petition, but also in criminal prosecution for
immigration fraud. But the IJ wasn’t fazed by discovery of
the fraud; he went on to decide whether Angov’s asylum
claim could be sustained despite the forgeries. No other
adjudicator in the United States would react with such
equanimity to finding that a party had tried to bamboozle it.
This points to an unfortunate reality that makes
immigration cases so different from all other American
adjudications: Fraud, forgery and fabrication are so
common—and so difficult to prove—that they are routinely
14 ANGOV V. HOLDER
tolerated. Our circuit is no exception. See Abovian v. INS,
257 F.3d 971 (9th Cir. 2001) (Kozinski, J., dissental).
The reason for this deplorable state of affairs is not
difficult to figure out. The schizophrenic way we administer
our immigration laws creates an environment where lying and
forgery are difficult to disprove, richly rewarded if successful
and rarely punished if unsuccessful. This toxic combination
creates a moral hazard to which many asylum applicants fall
prey.
First, the reward: the opportunity to be lawfully admitted
into the United States. Those born with U.S. citizenship
cannot imagine what this is worth to the world’s poor and
oppressed billions, most of whom would come here tomorrow
if they could. Gaining a lawful foothold in America is an
incalculable benefit. It sets an immigrant on the path to a
peaceful life in a free society, economic prosperity,
citizenship and the opportunity to bring family members in
due course. A prize like this is worth a great deal of expense
and risk. Telling an elaborate lie, and coming up with forged
documents and mendacious witnesses to back it up, is nothing
at all when the stakes are so high.
And the risk of getting caught is low. As eight members
of this court pointed out in Abovian:
The specific facts supporting a petitioner’s
asylum claim—when, where, why and by
whom he was allegedly persecuted—are
peculiarly within the petitioner’s grasp. By
definition, they will have happened at some
time in the past—often many years ago—in a
foreign country. In order for the INS to
ANGOV V. HOLDER 15
present evidence “refuting or in any way
contradicting” petitioner’s testimony, it would
have to conduct a costly and often fruitless
investigation abroad, trying to prove a
negative—that the incidents petitioner alleges
did not happen.
257 F.3d at 976. There’s very little the United States can do
to investigate obscure incidents that allegedly occurred in
countries on the other side of the globe. Even if it were
economically feasible, we can’t send the FBI into a foreign
country to conduct a full field investigation. The best we can
do is to have consular personnel check basic facts, in addition
to the many other functions they perform. And we have very
few U.S. consular personnel on the ground in most countries;
in all of Bulgaria, there are fewer than two dozen. See U.S.
Sec’y of State, 1 Congressional Budget Justification,
Department of State Operations, Fiscal Year 2013, at 306
(2012). All told, there are fewer than 6000 consular officials
in embassies and consulates spread out across more than 170
countries. Id. at 227–311.
Finally, if an alien does get caught lying or committing
fraud, nothing very bad happens to him. Sure, he may be
ordered removed, but most aliens who aren’t in custody
remain here long after their removal orders become final.
See, e.g., Office of the Inspector Gen., U.S. Dep’t of Justice,
The Immigration and Naturalization Service’s Removal of
Aliens Issued Final Orders iii (2003) (reporting that “the INS
removed only 3 percent of nondetained asylum seekers with
final removal orders”); see also Mark Hamblett, Circuit Sets
Policy for Removal Cases Deemed Low Priority by U.S., N.Y.
L.J., Oct. 18, 2012 (discussing policy that calls for “the
exercise of prosecutorial discretion to focus removal efforts
16 ANGOV V. HOLDER
on the most high-priority cases”). And if they do get sent
back—at our expense—what’s lost? They wind up where
they started. Would-be immigrants almost never get
prosecuted for presenting forged documents in support of
asylum petitions, unless they commit some additional
misconduct. See, e.g., United States v. Jawara, 474 F.3d 565,
570 (9th Cir. 2007) (defendant charged with document fraud
and conspiracy to commit marriage fraud). Consequently,
immigration fraud is rampant.
Take, for instance, Angov’s compatriot, Pavel Pavlov.
Pavlov sought asylum as a persecuted gypsy, just like Angov.
They even have the same lawyer. But Pavlov’s story took a
different turn when his wife gained U.S. citizenship and he
sought adjustment of status. In the process, he had to disclose
that his asylum application was a tissue of lies. Specifically,
Pavlov admitted that he wasn’t persecuted in Bulgaria. In
fact, he’s not even a gypsy.
Americans galore wind up in federal prison every year for
far less significant lies on government forms or bank loan
applications. See, e.g., United States v. Prince, 647 F.3d
1257, 1260–61, 1265 (10th Cir. 2011); United States v.
Sandlin, 589 F.3d 749, 751–53 (5th Cir. 2009); United States
v. Jack, 216 F. App’x 840, 841–43 (11th Cir. 2007). So was
Pavlov appealing his criminal conviction? Certainly not. The
BIA barred Pavlov from obtaining any relief under our
immigration laws because he had filed a frivolous (read:
fraudulent) asylum petition—a decision he had the chutzpah
to appeal. See Pavlov v. Holder, 697 F.3d 616 (7th Cir.
2012).
Cases involving fraudulent asylum claims are
distressingly common. See, e.g., Cheema v. Holder, 693 F.3d
ANGOV V. HOLDER 17
1045, 1046–47 (9th Cir. 2012); Dol v. Holder, 492 F. App’x
774, 775 (9th Cir. 2012); Zheng v. Holder, 672 F.3d 178,
180–81 (2d Cir. 2012); Fernandes v. Holder, 619 F.3d 1069,
1074–76 (9th Cir. 2010); Ghazali v. Holder, 585 F.3d 289,
290–91 (6th Cir. 2009); Ribas v. Mukasey, 545 F.3d 922,
925–26 (10th Cir. 2008); Siddique v. Mukasey, 547 F.3d 814,
815–16 (7th Cir. 2008); Rafiyev v. Mukasey, 536 F.3d 853,
855–57 (8th Cir. 2008); Dhital v. Mukasey, 532 F.3d 1044,
1047–48 (9th Cir. 2008) (per curiam); Chen v. Mukasey,
527 F.3d 935, 938–39 (9th Cir. 2008); Ahir v. Mukasey,
527 F.3d 912, 914–16 (9th Cir. 2008). And for every case
where the fraud is discovered or admitted, there are doubtless
scores of others where the petitioner gets away with it
because our government didn’t have the resources to expose
the lie.
The Second Circuit has given this already shaky system
a swift kick in the gut. As we explain further below, its
ruling makes it pretty much impossible for the immigration
authorities to carry out even the little bit of fact checking they
now manage to do. Its decision smothers the State
Department’s informal process of checking up on asylum
petitions in layers of procedural complexity that will prove
impossible to administer in practice. Perhaps the Supreme
Court or Congress will intervene and decide who’s right.
2. The basic question that confronts us is this: In a
system where there are pervasive, structural incentives for
fraud, are we to disable our triers of fact from considering
certain evidence—which may be essential to weeding out
fraudulent claims—when that evidence lacks particular
details that may bear on its reliability? Remember, the
Second Circuit regards documents like the Bunton Letter as
inherently unreliable. We need not—and do not—conclude
18 ANGOV V. HOLDER
that such letters will always lead to adverse credibility
findings; we simply disclaim the conclusion that they must be
excluded from an immigration judge’s consideration when
they fail to provide sufficient identifying detail.
We acknowledge the Bunton Letter lacks certain indicia
of reliability, but we cannot say, under our “extremely
deferential” review, that its use alone constitutes grounds to
reverse the IJ’s adverse credibility determination. Wang v.
INS., 352 F.3d 1250, 1257 (9th Cir. 2003). First of all, Angov
has the burden of proving his eligibility for asylum. See
8 C.F.R. § 1208.13(a). The government has no burden; it can
present evidence solely to rebut or impeach petitioner’s case.
The IJ and the BIA could reasonably conclude that the
Bunton Letter is at least sufficient to cast doubt on Angov’s
evidence and force him to come up with more solid proof to
support his claim.
Angov finds fault with the Bunton Letter because it
“provides no information as to who conducted the
investigation; who obtained, stored and verified the
information underlying the conclusion expressed in the
document [or] when and under what authority the
investigation was conducted.” He notes that the Bunton
Letter offers no explanation for many of its conclusions—for
example, that both the case numbers and the telephone
numbers listed on the fraudulent subpoenas were incorrect.
These are all interesting points to raise at the hearing, and the
absence of a satisfactory response from the government might
well convince the trier of fact to disregard the letter. But in
this instance, the IJ, in his discretion, chose to credit the
letter. That was his prerogative, and our review is limited to
whether that decision is permissible in light of the evidence.
ANGOV V. HOLDER 19
The doubts as to the letter’s reliability flow from the fact
that the rules of evidence, and the hearsay rules in particular,
don’t apply to administrative proceedings. See Richardson v.
Perales, 402 U.S. 389, 400–02 (1971); Hernandez-
Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005).
This inevitably leaves some uncertainty that would be
eliminated if this were a formal trial subject to the rules of
evidence. But it doesn’t deprive the opposing party of any
and all means of rebutting the hearsay declarant’s assertions.
The Bunton Letter does come to certain factual
conclusions: that the addresses identified by Angov in his
asylum petition don’t exist; that the officers—Captain
Donkov, Lieutenant Slavkov and Investigator Vutov—and
room numbers specified in the subpoenas presented by Angov
don’t exist; that the seals on the subpoenas are the wrong
size; and that the part of the city where Angov claimed to live
was only twenty to thirty percent Roma. Each of these
assertions describes facts in the real world, so it’s possible to
rebut Bunton by presenting proof that those facts are not as
the Bunton Letter describes them.
In fact, Angov did precisely that with respect to the two
addresses. He presented a letter from someone in Bulgaria,
who explained that the Bunton Letter’s conclusions about the
addresses are wrong. See p. 5 supra; Appendix. And the BIA
seems to have been swayed, as it noted that the “record is
unclear” about whether Angov was telling the truth about the
addresses.
Angov was free to present similar evidence to undermine
the Bunton Letter’s statements about the subpoenas. He
could have had Ms. Mihaylova from the human rights
organization or some other friend in Sofia visit the police
20 ANGOV V. HOLDER
station and try to find out whether the rooms referenced in the
Bunton Letter do or don’t exist. He might also have been
able to obtain a roster of the names of police officials in Sofia
and shown that it contains the names of the officers
referenced in the subpoenas.
The Bunton Letter also asserts that the phone numbers in
the subpoenas aren’t correct. Angov or one of his friends
could have called the numbers and asked whether he’d
reached the police station—and then submitted an affidavit to
that effect. The same is true about the seals: Angov or his
friends might have tried to obtain an official copy of the
police seal from the Bulgarian government and introduced it
into evidence. He did none of these things, perhaps because
he knew that the subpoenas were forged.
Where the petitioner has the burden of proof, there’s
nothing unfair about having a U.S. government agent check
out some of his basic facts and inform the IJ of possible
discrepancies. This forces the petitioner to obtain further
evidence supporting the challenged claims. There might be
situations where obtaining further evidence is impossible,
such as where the petitioner has fled from a closed society
and can find no one willing or able to obtain the evidence he
needs. In such cases, we don’t hold the petitioner’s failure to
present evidence against him. See Singh v. Holder, 638 F.3d
1264, 1270–71 (9th Cir. 2011). But Angov has never claimed
that he couldn’t get more evidence; indeed he has resources
in Bulgaria with which to do so. Based on the almost
complete absence of rebuttal evidence on Angov’s part, the
IJ was not unreasonable to credit the allegations in the Bunton
Letter.
ANGOV V. HOLDER 21
3. There’s nothing particularly exotic about assessing an
asylum applicant’s credibility by comparison with an
extrinsic source. For example, the Bunton Letter’s estimate
that Angov comes from a community that is only twenty to
thirty percent Roma is similar to the kind of demographic
estimates made by the State Department in its country
reports, on which we and the BIA rely all the time. See, e.g.,
Dhillon v. Holder, 485 Fed. App’x 252, 253 (9th Cir. 2012);
Patel v. Holder, 474 F. App’x 584, 585 (9th Cir. 2012); Sesay
v. Holder, 469 F. App’x 617, 617 (9th Cir. 2012); see also
Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (“U.S.
Department of State country reports are the most appropriate
and perhaps the best resource for information on political
situations in foreign nations.” (internal quotation marks
omitted)); cf. 8 U.S.C. § 1158(b)(1)(B)(iii).
Were we to hold that we can’t rely on this estimate in the
Bunton Letter, we’d be casting doubt on a multitude of
country reports that have no better support for their
demographic estimates than the Bunton Letter. The country
reports are, after all, prepared by the very same consular
officials, using some of the same methods, as the Bunton
Letter. See Bureau of Democracy, Human Rights & Labor,
U.S. Dep’t of State, Country Reports on Human Rights
Practices for 2012: Appendix A: Notes on Preparation of
Reports, at 1 (2012). Indeed, Cynthia Bunton’s title when she
wrote her letter was director of the Department of State’s
“Office of Country Reports and Asylum Affairs.” (emphasis
added). Nadia Tongour is her successor. Adopting Angov’s
objection to the findings in the Bunton Letter could render
country reports inadmissible in immigration proceedings.
Angov complains that the Bunton Letter might have relied
on reports from foreign service nationals (FSNs). See
22 ANGOV V. HOLDER
Ezeagwuna, 325 F.3d at 406. What if it did? Our embassy in
Sofia, as elsewhere, employs roughly the same number of
FSNs and Americans. U.S. Sec’y of State, 1 Congressional
Budget Justification, Department of State Operations, Fiscal
Year 2013, at 306 (2012). Our short-staffed consular offices
no doubt use FSNs, who are fluent in the local language and
familiar with local conditions, to do some of the legwork.
We see nothing wrong with that. Whether the investigation
was conducted by U.S. citizens, FSNs or Hercule Poirot, it
resulted in certain factual conclusions that can be refuted.
Submissions such as the Bunton Letter and the various
country reports on which we routinely rely aren’t just a
collection of statements by disconnected individuals. Rather,
they are the unified work product of a U.S. government
agency carrying out governmental responsibilities. As such,
the report itself, and the acts of the various individuals who
helped prepare it, are clothed with a presumption of
regularity. See Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 174 (2004); see also Kohli v. Gonzales,
473 F.3d 1061, 1068 (9th Cir. 2007). “[I]n the absence of
clear evidence to the contrary, courts presume that [these
individuals] have properly discharged their official duties.”
Favish, 541 U.S. at 174 (quoting United States v. Armstrong,
517 U.S. 456, 464 (1996)).
The presumption of regularity has been applied far and
wide to many functions performed by government officials.
See, e.g., U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001)
(Post Office disciplinary procedures); United States v.
Armstrong, 517 U.S. 456, 464 (1996) (prosecutorial decision
making); FCC v. Schreiber, 381 U.S. 279, 296 (1965) (FCC’s
decision making process); cf. INS v. Miranda, 459 U.S. 14,
16–18 (1982) (per curiam) (processing of visa application).
ANGOV V. HOLDER 23
The Bunton Letter is entitled to the presumption that
those who participated in its preparation, be they FSNs,
consular officers or officials at the State Department in
Washington, did their jobs fairly, conscientiously and
thoroughly; that each officer in the chain relied on the work
of someone down the chain in whom he had confidence; that
no one had a personal stake in the substance of the report; and
that no one lied or fabricated evidence. Without this
presumption, country reports would be no more useful than
the Farmers’ Almanac or Perezhilton.com.
The dissent argues that the presumption of regularity
doesn’t apply here because “[t]he key hearsay statement in
the Bunton Letter comes from a Bulgarian police employee,
not a U.S. government official.” But that would remain true,
even with the procedural protections the Second Circuit
advocates. Those protections don’t prevent Bulgarian police
officers from lying, they simply make it easier for an IJ to
assess the quality of investigation conducted by our consular
officials—the very officials we presume reliable. As with a
country report, the information in a consular letter may be
based, in part, on hard-to-verify statements made by local
officials. That’s a reason to take the information contained in
such letters with a grain of salt—as an IJ is entitled to
do—not a reason to deem them inadmissible in their entirety.
The similarities between the Bunton Letter and the litany
of documents used, and accepted, in everyday asylum
adjudications speaks to a fundamental misapprehension on
the part of the Second Circuit and the dissent. Immigration
adjudication necessarily requires consideration of all manner
of imperfect sources. But we do neither immigrants nor the
immigration authorities a service by cabining the range of
permissible documents on which a trier of fact can rely in
24 ANGOV V. HOLDER
making his decision. In assessing whether an incident
occurred years ago in a faraway country with an unfamiliar
culture and political system, an immigration judge must be
able to read, assess and weigh as much information as
possible. True, dismissing a petition in reliance on an
unsworn letter might seem harsh; but so is dismissing a
petition based on relatively minor testimonial inconsistencies
in the convoluted story of an immigrant who may have only
a weak command of English and a hazy memory of his flight
from terror. Harshness is endemic to any asylum system.
Here, the IJ came to the conclusion that the unrefuted
contents of the Bunton Letter cast doubt on the subpoenas
Angov presented as evidence. Do we really better serve
justice, or the immigration process more generally, by
compelling the IJ to either accept the dubious subpoenas as
genuine, or base his review solely on his instincts as to what
a Bulgarian subpoena “should” look like?
An implicit assumption of the Second Circuit’s approach
is that the exclusion of documents such as the Bunton Letter
will lead, not to reliance on capricious information, but to the
proliferation of more comprehensive and reliable State
Department investigations. There’s no reason to believe that
will happen. The asylum unit of the Department of State’s
Office of Country Reports and Asylum Affairs “has suffered
from long standing resource problems.” Office of the
Inspector Gen., U.S. Dep’t of State, Report of Inspection:
Bureau of Democracy, Human Rights and Labor 23 (2003).
Many of its staffers are interns, and even its regular
employees are often “pressed into service to work” on the
Office’s other main responsibility: country reports. Id. at
23–24. And the consular officers tasked with verifying
asylum applicants’ claims are also overworked and
understaffed. The Tongour Letter expresses the
ANGOV V. HOLDER 25
government’s position on providing additional information
about the results of an overseas investigation: “Such
additional demands are further burdens on Consular Officers
in the performance of their regular responsibilities and are
particularly onerous for FSNs who may be subject to local
reprisal.” The State Department tells us it’s doing the best it
can with the scant resources allocated to it and our consular
corps abroad.
Demanding that the reports contain a multitude of
additional details, such as “the identity and qualifications of
the investigator(s),” “the objective and extent of the
investigation” and “the methods used to verify the
information discovered,” see Lin, 459 F.3d at 271, transforms
a process that is swift, efficient and informal into one that’s
ponderous, time-consuming and expensive.
Insisting on these procedures would paralyze the process,
making it impossible for our consular officers to do many of
these investigations because they’re too busy filling in all the
jots and tittles our sister circuit enshrines as pre-requisites for
a document’s admission. Complying with such requirements
considerably lengthens the time it takes to write most reports,
and may make it impossible to write others for fear of
disclosing sensitive information that could compromise
sources or impair relations with local officials.
Nor is it realistic for the government to produce such
information in camera. These reports are prepared by
Department of State officials stationed in foreign countries,
and are then turned over to another agency in another
department, which then releases them to an adverse party.
These disclosures are made in the context of immigration
court proceedings, not in district court, and the immigration
26 ANGOV V. HOLDER
court, despite its name, is an executive branch agency. It has
no contempt powers and can’t have anyone arrested for
violating its orders, including confidentiality orders. See
Stephen H. Legomsky, Restructuring Immigration
Adjudication, 59 Duke L.J. 1635, 1674, 1714 (2010); Dana
Leigh Marks, Still a Legal “Cinderella”? Why the
Immigration Courts Remain an Ill-Treated Stepchild Today,
59 Fed. Law., Mar. 2012, 25, at 30. There’s a good chance
the information will fall into the hands of people who have
little regard for U.S. law and find themselves repatriated with
a motive for revenge. Consular officials forced to disclose
sensitive information in these circumstances would probably
leave the information out of the report rather than risk
burning their sources, offending local officials or losing their
lives.
If we make the job of compiling these reports
substantially more risky and onerous, the State Department
may stop writing them. The United States gets close to
74,000 asylum cases a year, far more than any other
industrialized nation. See United Nations High Comm’r for
Refugees, Asylum Levels and Trends in Industrialized
Countries 3, 8 & n.14 (2011). (That’s more than three times
the number of Social Security cases the Supreme Court
considered massive in Perales). The use of reports from
consular officials gives the government the ability to check
facts and puts at least some constraint on how far from the
truth asylum applicants will stray. Knocking out even this
most basic check on fraud and fabrication would subvert the
asylum process, giving charlatans a free pass into the United
States.
4. In any event, even if the Second Circuit’s approach
were to encourage more detailed State Department letters,
ANGOV V. HOLDER 27
such “faith in procedural choreography” as a truth-seeking
device is “fundamentally flawed.” United States v. Balough,
820 F.2d 1485, 1491 (9th Cir. 1987) (Kozinski, J.,
concurring). Requiring the Department of State to disclose
more details will neither materially enhance the reliability of
the resulting report nor do very much to help asylum
applicants.
We test this proposition by modifying a portion of the
Bunton Letter to comply with the requirements that would
(presumably) satisfy the Second Circuit; new or modified
language is italicized:
Agent Michael Smith, a foreign service
agent with seventeen years of field experience
who is fluent in Bulgarian, ordered Vladimir
Popov, a foreign service national in the
Embassy’s employ, to visit the 5th Police
District station in Sofia in order to seek
authentication of the two subpoenas. FSN
Popov is a lifelong resident of Sofia and has
worked for the Embassy for two years. He is
fluent in Bulgarian and speaks conversational
English.
FSN Popov traveled to the station and,
once there, spoke to Ludmilla Bogdanovich,
who is the supervisor of personnel records at
the station. FSN Popov considers Ms.
Bogdanovich a trustworthy source. After she
consulted the relevant records, Ms.
Bogdanovich told FSN Popov that Captain
Donkov, Lieutenant Slavkov and Investigator
Vutov have never worked for the 5th Police
28 ANGOV V. HOLDER
District. Ms. Bogdanovich also told FSN
Popov that the case numbers on the subpoenas
were not correct, there was no room 4 on the
second floor and no room 5 on the first floor
and that the telephone numbers on the
subpoenas were incorrect. While at the
station, FSN Popov asked Ms. Bogdanovich
for an imprint of the police station seal, which
he brought back to the consulate. Agent
Smith compared it to the seal on the two
subpoenas and found the official seal to be
much larger.
After hearing FSN Popov’s oral report of
his meeting with Ms. Bogdanovich, Agent
Smith transmitted the information to the
author of this letter by encrypted email.
Best we can tell, this revised letter would comply with the
requirements imposed by the Second Circuit, but would it be
much more valuable than what we already have? We’d know
a bit more about Agent Smith, and we’d know the identity of
the person who did the legwork, but how would that help us?
We’d also have a name of someone who purportedly
provided the information from the Bulgarians, but how would
that be of any use? Angov could still complain that the IJ
was unable to assess the Bulgarian official’s credibility, or
even the credibility of any of the later links in the chain.
We’d also know that it was Agent Smith who visually
compared the seal on the subpoenas with the station’s official
seal, but how does that bring us closer to the truth?
At this point, we would be faced with a whole new set of
questions: How do we know Popov really went to the police
ANGOV V. HOLDER 29
station instead of stopping off in a bar to chug rakia? How
did Popov know whether Bogdanovich was really the
supervisor of personnel records at the police station? Did he
check her identification papers? How did Popov assess
Bogdanovich to be trustworthy, and how can we be sure he’s
right? Did Popov look at the personnel records himself, or
did he take Bogdanovich’s word that the three officers never
worked there? Can we be sure that Bogdanovich checked all
the relevant records? Can we be sure the purported personnel
records were accurate and complete? How do we know
Popov didn’t falsify important details because he was afraid
of reprisal or because he hates gypsies? And how can we be
sure Smith is telling the truth if we can’t cross-examine him?
Did Smith have a full-sized copy of the subpoena when he
compared the seals or a shrunken photocopy?
These difficulties are inherent in trying to prove up facts
related to events that occurred years past and thousands of
miles away from where the IJ is holding his hearing. Short of
transporting all the declarants and their underlying records to
the United States for a hearing before an IJ, there will
inevitably be gaps that can be bridged only by multiple levels
of hearsay.
This is not a problem that plagues only the government.
Almost every piece of evidence asylum petitioners present in
support of their cases would be inadmissible if subjected to
the rules of evidence, especially those pertaining to hearsay:
threats they claim to have been subjected to; racist comments
by the police; reports of strange people looking for them;
letters from family members and others. A brief scan of our
caselaw shows it’s pretty much impossible to build an asylum
case without relying on evidence that would be laughed out
of court if presented in a domestic trial. See, e.g., Meza-
30 ANGOV V. HOLDER
Vallejos v. Holder, 669 F.3d 920, 922 (9th Cir. 2012); Haile
v. Holder, 658 F.3d 1122, 1124–25 (9th Cir. 2011); Singh v.
Holder, 656 F.3d 1047, 1049–50 (9th Cir. 2011); Hu v.
Holder, 652 F.3d 1011, 1013–15 (9th Cir. 2011); Kumar v.
Gonzales, 444 F.3d 1043, 1047–48 (9th Cir. 2006).
Take, as a small example, the letter from Daniela
Mihaylova that Angov presented to rebut some of the
information in the Bunton Letter. This is a two-page, typed
document, with a small emblem and a typed address by way
of letterhead. (We reproduce it in the Appendix.) It is
addressed “To: Whom it may concern” and references
Angov’s case. The letter represents that the “Romani Baht
Foundation is a leading Bulgarian non-profit organization for
protection of Roma/Gypsies human rights, founded in 1996
and legally registered with Bulgarian court.” Mihaylova
purports to be the legal programs’ director of the Foundation.
The BIA took this letter seriously and modified some of
the IJ’s findings based on it and other evidence presented by
Angov. But there is absolutely no evidence in the record that
there is any such person as Daniela Mihaylova and, if there is,
how she went about obtaining the information detailed in her
letter. For all we know, Angov could have printed the letter
using his computer and standard word processing software.
Compared to this letter—and the remaining evidence
presented by Angov—the Bunton Letter seems a paragon of
reliability. It was prepared by government officials trained to
perform this kind of investigation; who have nothing to gain
by giving false information; and whose conduct is clothed
with the presumption of regularity that attaches to all
government actors. Cf. Perales, 402 U.S. at 402–06. The
Bunton Letter encloses five photographs depicting locations
ANGOV V. HOLDER 31
mentioned in Angov’s asylum petition, which confirms that
someone from our consulate traveled to those locations and
made a personal inspection.
The Bunton Letter also gives specific reasons for
doubting the authenticity of the addresses and points to
several problems with the subpoenas. It is not an
unsupported assertion that Angov is a liar; it is a rational,
apparently objective recital of observed facts. At the very
least, we can be sure that there is a Bunton and a Tongour,
and that they can be disciplined or prosecuted if they
negligently or deliberately falsified their reports. And we can
reasonably presume that, in preparing their reports, Bunton
and Tongour relied on trained State Department officers and
agents who are themselves subject to discipline or
prosecution for incompetence or corruption.
Compare this to the letter from Mihaylova (assuming
there even is a Mihaylova): It comes from someone who
cannot be disciplined or prosecuted in case of a lie, and who
has not been screened for competence, honesty or reliability.
It encloses no pictures or other documentary evidence. It
doesn’t explain how the facts asserted were gathered or by
whom. It doesn’t even claim to be based on first-hand
knowledge, rather than hearsay or rumor. The letter simply
makes a series of bald factual assertions without any support.
Even assuming the letter is genuine (in the sense that it was
actually written by its purported signatory in Bulgaria), the IJ
and the BIA have absolutely no way to evaluate how accurate
or objective it is.
In an environment where it’s pretty much impossible to
obtain first-hand accounts of most of the relevant facts,
should we require the government to fight an uphill battle on
32 ANGOV V. HOLDER
a slippery slope with one leg and both arms tied behind its
back, while its adversary gets to use cleats and brass
knuckles? Of course not. It would be the height of cognitive
dissonance to hold the United States to standards of proof
derived from domestic litigation while allowing petitioners to
present anything and everything that doesn’t bear the
watermark “Forgery Purchased on the Black Market.”
Furthermore, contrary to what the dissent and the Second
Circuit might believe, the consequence of a rule excluding the
consideration of documents such as the Bunton Letter will not
be to allow more of the world’s oppressed into the land of the
free. Rather, it favors the canny, the dishonest, the brazen
and those who have the means and connections to purchase
or create fraudulent documents, such as Angov’s compatriot,
Pavlov. See p. 13–14 supra. Nor does such a rule ultimately
help asylum seekers, as it’s hard to believe that Congress will
long allow the program to continue when it rewards people
who lie their way into the United States. Eventually,
Congress and the public will catch on that asylum has become
a fast-track vehicle for immigration fraud, and the asylum
statute will be repealed or amended so as to make it even
more difficult for honest asylum seekers to obtain relief. The
ultimate victims will be the tired, poor, huddled masses who
will find the golden door slammed in their faces.
* * *
We conclude on this record that the IJ acted within his
discretion when he admitted the Bunton Letter into evidence
and relied on it to find that the subpoenas Angov submitted
were fraudulent. The adverse credibility finding based on the
fraudulent subpoenas was supported by substantial evidence.
Because Angov’s claim is based on his mistreatment by the
ANGOV V. HOLDER 33
Bulgarian police, the fact that the subpoenas were fraudulent
“goes to the heart of [Angov’s] claim of persecution.” See
Rizk, 629 F.3d at 1087–88. Furthermore, Angov’s testimony
is not credible, and he doesn’t present other evidence that
meets his burden to show that it’s “‘more likely than not’”
that he would be tortured if sent back to Bulgaria. See
Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010).
Consequently, the IJ and BIA decisions denying Angov
asylum, withholding of removal and protection under the
Convention Against Torture must stand.
PETITION DENIED.
34 ANGOV V. HOLDER
Appendix: Mihaylova Letter
ANGOV V. HOLDER 35
36 ANGOV V. HOLDER
THOMAS, Chief Judge, dissenting:
I would join the Second Circuit in resolving the issue
before us. Unsworn, unauthenticated, hearsay letters—
prepared for litigation by the government and not subject to
any form of cross-examination—cannot form the sole basis
for denying asylum to an otherwise qualified applicant.
Therefore, I must respectfully dissent.
I
A
Five of our sister circuits have held that the government
may not deny asylum solely on the basis of conclusory letters
prepared for litigation in reliance on multiple layers of
unauthenticated hearsay, without affording the petitioner
some right of confronting the charges. Four of those circuits
reached this result on constitutional grounds, holding that the
admission of unauthenticated consular letters against an
asylum applicant violates that applicant’s procedural due
process rights. Banat v. Holder, 557 F.3d 886, 892–93 (8th
Cir. 2009); Anim v. Mukasey, 535 F.3d 243, 256–58 (4th Cir.
2008); Alexandrov v. Gonzales, 442 F.3d 395, 407 (6th Cir.
2006); Ezeagwuna v. Ashcroft, 325 F.3d 396, 405–08 (3d Cir.
2003). The Second Circuit declined to reach the
constitutional issue but held that such letters, standing alone,
could not provide a basis for denying asylum under the
substantial evidence standard because they lacked sufficient
indicia of reliability and trustworthiness. Lin v. U.S. Dep’t of
Justice, 459 F.3d 255, 268–72 (2d Cir. 2006); see also
Balachova v. Mukasey, 547 F.3d 374, 382–83 (2d Cir. 2008)
(applying Lin). Although I would resolve the present case
purely on statutory grounds, as the Second Circuit did, the
ANGOV V. HOLDER 37
cases decided by our other sister circuits also provide useful
guidance here.
In Banat, for instance, the Eighth Circuit rejected an IJ’s
reliance on a consular letter that cited an unidentified
investigator from the U.S. embassy in Beirut because the
letter contained “multiple levels of hearsay” and omitted any
mention of the investigator’s qualifications, experience, or
“contact.” 557 F.3d at 891–92. The court acknowledged 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,” id. at 890; however, it
concluded 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.” Id. at 893. The court reasoned:
Reliance on reports of investigations that do
not provide sufficient information about how
the investigation was conducted are
fundamentally unfair because, without that
information, it is nearly impossible for the
immigration court to assess the report’s
probative value and the asylum applicant is
not allowed a meaningful opportunity to rebut
the investigation’s allegations.
Id. at 891.
The Fourth Circuit relied on similar logic in Anim when
it rejected a State Department letter authored by the same
38 ANGOV V. HOLDER
official involved in our case. The court noted that the
official’s letter was “comprised entirely of multiple hearsay
statements.” 535 F.3d at 257. It also pointed out that “letter
does not explain how Bunton received the information she
relates, nor does the letter disclose the identities of some of
the individuals involved in the chain of communication.” Id.;
see also id. (“Without the details of the investigation, it is
impossible for an immigration judge, the BIA, or a court to
evaluate the reliability of the letter’s conclusions.” (citations
omitted)). Based on these deficiencies, the Anim court
concluded that “the Bunton letter contains insufficient indicia
of reliability and, as a result, its use was fundamentally
unfair.” Id. at 256.
The courts in both Anim and Banat relied heavily on the
Second Circuit’s reasoning in Lin, 459 F.3d at 268–72. In
Lin, the Second Circuit rejected a consular report almost
identical to the letter at issue here. The consular report was
based on the opinions of Chinese government officials who,
as the Lin court noted, “appear to have powerful incentives to
be less than candid on the subject of their government’s
persecution of political dissidents.” Id. at 269–70. The court
also observed that the report lacked other traditional markers
of reliability, namely: “(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. The Lin court distilled
these factors from the Department of Justice’s own guidelines
for evaluating the reliability of documents produced
overseas.1 Noting that the consular letter failed to satisfy
1
The Justice Department’s guidelines stated that, in the case of a
fraudulent document, the “report must contain, at a minimum: (i) the name
and title of the investigator; (ii) a statement that the investigator is fluent
ANGOV V. HOLDER 39
these basic criteria, the court held that the report was
“insufficiently detailed to permit a reviewing court to assess
its reliability” and, as such, could not support a finding that
the petitioner had forged documents submitted with his
asylum application. Id. at 270.
Critically, the Second Circuit reached this conclusion as
a statutory matter, holding that the consular report was
“highly unreliable and therefore insufficient to satisfy the
substantial evidence requirement.” Id. at 269. The court
noted that the Third and Sixth Circuits had recently rejected
similar reports as procedural due process violations2 but,
in the relevant language(s) or that he or she used a translator who is fluent
in the relevant language(s); (iii) any other statements of the competency
of the investigator and the translator deemed appropriate under the
circumstances (such as education, years of experience in the field,
familiarity with the geographic terrain, etc.); (iv) the specific objective of
the investigation; (v) the location(s) of any conversations or other searches
conducted; (vi) the name(s) and title(s) of the people spoken to in the
course of the investigation; (vii) the method used to verify the
information; (viii) the circumstances, content, and results of each relevant
conversation or search[ ]; and (ix) a statement that the Service investigator
is aware of the confidentiality provisions found in 8 C.F.R. § 208.6.”
Memorandum from Bo Cooper (“Cooper Memo”), Gen. Counsel,
Immigration & Naturalization Serv., to Jeffrey Weiss, Dir., Immigration
& Naturalization Serv. Office of Int’l Affairs, Confidentiality of Asylum
Applications and Overseas Verification of Documents and Application
Information (June 21, 2001), available at http://judiciary.house.gov/
legacy/82238.pdf at 39–45.
2
See Alexandrov, 442 F.3d at 407 (holding that memoranda prepared by
a U.S. embassy official in Sofia did “not meet our standards of
trustworthiness and reliability and were therefore improperly relied upon
by the immigration court”); Ezeagwuna, 325 F.3d at 406–08 (holding that
a letter prepared by a U.S. embassy official in Yaounde contained
“multiple hearsay of the most troubling kind” and, therefore, was “neither
reliable nor trustworthy”).
40 ANGOV V. HOLDER
ultimately, the Lin court held that it was unnecessary to reach
the constitutional issue. Id. (“Although we find the logic of
these cases [concerning procedural due process] persuasive,
we do not reach the constitutional issue presented because the
statutory standard of review requires vacatur.” (emphasis in
original)). The court later took the same approach in
Balachova. 547 F.3d at 383 (concluding that a consular
report that “contain[ed] no information concerning the
qualifications of the investigators, the identity of the Russian
officials who prepared the response to the consular inquiry,
or the methods, if any, used to verify the information supplied
by the foreign official” was “unreliable and cannot contribute
to a finding of substantial evidence”).
Our case cannot be distinguished from Lin or Balachova.
The IJ relied on a short, unsworn letter from a State
Department official to support his finding that Angov forged
parts of his asylum application. The letter was devoid of any
information concerning the methodology employed in the
investigation or the qualifications of the investigators.
Instead, it was based on the unauthenticated, hearsay
statements of an unidentified Bulgarian police official who
worked at the police station where Angov claims to have been
severely beaten. Like the government officials in Lin, that
police official—whose department had been accused of
ethnically motivated brutality—had a strong incentive to be
“less than candid.” 459 F.3d at 269.
In sum, the Bunton Letter was comprised of conclusory
statements of fact, none of which were supported by the basic
information required under Lin and Balachova. We are left,
as was the Second Circuit, with a document that is
“insufficiently detailed to permit a reviewing court to assess
its reliability.” Lin, 459 F.3d at 270. Indeed, in many ways,
ANGOV V. HOLDER 41
there is less information in the Bunton Letter than in the
letters rejected as unreliable by our sister circuits.
Accordingly, because the Bunton Letter lacks the indicia of
reliability set forth in Lin, the agency could not have relied on
it under the substantial evidence standard.
B
Neither Lin nor Balachova discussed the specific
procedural protections guaranteed to aliens in removal
proceedings under 8 U.S.C. § 1229a(b)(4)(B). That
provision, however, offers independent grounds for barring
the government from relying on unsworn, unauthenticated
hearsay letters as the sole basis for denying an alien relief
from removal.
Section 1229a(b)(4)(B) expressly provides that every
alien “shall have a reasonable opportunity to examine the
evidence against [him or her], to present evidence on [his or
her] own behalf, and to cross-examine witnesses presented by
the Government” during removal proceedings. See also
8 C.F.R. § 1240.10(a)(4) (requiring the IJ to “[a]dvise the
respondent that he or she will have a reasonable opportunity
to examine and object to the evidence against him or her, to
present evidence in his or her own behalf and to
cross-examine witnesses presented by the government”). We
have recognized the “importance of the right to confront
evidence and cross-examine witnesses” under this statute.3
3
The majority suggests that, because foreign officials are not themselves
“amenable to cross-examination,” allowing State Department officials to
be cross-examined when they “inescapably rely” on information from
foreign officials would not significantly enhance the credibility of that
information. Slip Op. at p. 11. This view overlooks the fact that State
42 ANGOV V. HOLDER
Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009)
(listing “several cases” highlighting the importance of this
right). As we explained in those cases, the “purpose of this
statutory guarantee cannot be fulfilled . . . if the government’s
choice whether to produce a witness or to use a hearsay
statement is wholly unfettered.” Baliza v. INS, 709 F.2d
1231, 1234 (9th Cir. 1983). Rather, to comply with this
provision, the government must “make a reasonable effort to
present the witness” for cross-examination. Cinapian,
567 F.3d at 1074.
The majority asserts that the “government here did make
a reasonable effort to obtain a witness” for cross-examination
but, ultimately, was stymied by the State Department’s policy
of not releasing follow-up information about overseas
investigations. See supra, Slip Op. at p. 11. This “effort”
cannot be sufficient to satisfy the government’s burden under
the statute. Indeed, allowing one executive branch agency to
rely on another executive branch agency’s blanket policy of
refusing to provide certain information is tantamount to
granting the government the kind of unfettered discretion we
repudiated in Baliza. As for the policy itself, whatever
logistical obstacles might have once justified the State
Department’s blanket refusal to produce overseas government
witnesses for removal proceedings, those obstacles can surely
Department officials would be less likely to accept unreliable information
as true if they knew that they might later be subject to cross-examination.
Furthermore, if State Department officials did rely on information
obtained from foreign officials, they would be prepared to explain why
that information was trustworthy.
ANGOV V. HOLDER 43
be overcome in an age of video conferencing.4 Indeed,
federal law specifically allows IJs to conduct entire hearings
via telephone or video conference. 8 U.S.C.
§ 1229a(b)(2)(A); see also 8 C.F.R. § 1003.25(c) (“An
Immigration Judge may conduct hearings through video
conference to the same extent as he or she may conduct
hearings in person.”).
Because the government did not make a reasonable effort
to produce Bunton for cross-examination, I would hold that
its reliance on the Bunton Letter violated Angov’s rights
under § 1229a(b)(4)(B).5
C
The government argues that the Bunton Letter should be
credited as trustworthy by employing the presumption of
regularity—that is, that government officials accurately
perform their reporting duties without bias. See Espinoza v.
4
At the very least, the State Department should be required to produce
some specific hardship or reason why it cannot produce the witness for
cross-examination, rather than relying on a general policy.
5
The four of our sister circuits to resolve this issue on constitutional
grounds did not discuss the procedural rights guaranteed under
§ 1229a(b)(4)(B). However, the reasoning they used in concluding
(unanimously) that the admission of unauthenticated, hearsay letters
during removal proceedings violates an alien’s procedural due process
rights counsels toward holding that such letters also violate the alien’s
statutory rights under § 1229a(b)(4)(B). We have recognized that the due
process right is closely related to the statutory right in this context. See
Bondarenko v. Holder, 733 F.3d 899, 907 (9th Cir. 2013) (“The due
process right, incorporated into 8 U.S.C. § 1229a(b)(4)(B), includes,
among other things, ‘a reasonable opportunity to examine the evidence
against the alien.’ (emphasis added; citations omitted)).
44 ANGOV V. HOLDER
INS, 45 F.3d 308, 310 (9th Cir. 1995) (holding that
“information on an authenticated immigration form is
presumed to be reliable in the absence of evidence to the
contrary presented by the alien”).
However, the presumption of regularity does not apply
when the source of information “was neither a government
official nor the subject of the report.”
Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 n.9
(9th Cir. 2005) (citing Espinoza, 45 F.3d at 310). The key
hearsay statement in the Bunton Letter comes from a
Bulgarian police employee, not a U.S. government official or
Angov. Statements made by third persons under no business
duty to report are not entitled to the presumption of reliability
and cannot be considered subject to the presumption, even if
included in a document that enjoys such a presumption.
United States v. Pazsint, 703 F.2d 420, 424-25 (9th Cir.
1983); see also Pouhova v. Holder, 726 F.3d 1007, 1014–15
(7th Cir. 2013) (rejecting application of presumption of
reliability to hearsay statements of third parties recorded in
official documents); Jordan v. Binns, 712 F.3d 1123, 1133
(7th Cir. 2013) (“[T]he presumption of reliability that serves
as the premise for the public-records exception does not
attach to third parties who themselves have no public duty to
report.”).
Second, the presumption of reliability, similar to the
traditional hearsay exception for public records, applies to
documents “prepared in accordance with normal
recordkeeping requirements.” Espinoza, 45 F.3d at 310; see
also Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th Cir.
2001) (“It must be shown that the document has been
certified by the INS District Director as a true an[d] accurate
reflection of INS records.”). The Bunton Letter, summarizing
ANGOV V. HOLDER 45
the results of an investigation involving multiple individuals
and carried out at the behest of a party involved in litigation,
is not comparable to an authenticated immigration form
routinely filled out by border agents. Espinoza, 45 F.3d at
309. It is not a “business record” which is prepared in the
usual and ordinary course of business. It was not
authenticated or certified. It did not even conform with the
agency’s own reporting procedures, as described and set forth
in the Cooper Memo. Thus, the ad hoc Bunton Letter does
not qualify as a government document produced in
accordance with regular agency procedure.
For these reasons, I find the government’s arguments
unpersuasive.
II
Adjudicating asylum claims is necessarily an imperfect
endeavor. Witnesses to alleged foreign persecution are rarely
available; documents are often impossible to locate. The
immigration judge is often left with assessing witness
credibility as the only means of resolving the request for
relief. We are often limited to seeing through a glass, darkly.
As to post-REAL ID Act asylum seekers, the IJ may
require corroboration, even when presented with credible
testimony. See Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir.
2009) (“Where the trier of fact determines that the applicant
should provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence.” (quoting 8 U.S.C. § 1158(b)(1)(B)(ii))).
We have sustained the BIA’s denial of relief founded on the
46 ANGOV V. HOLDER
inability of an asylum seeker to obtain corroboration.
Shrestha v. Holder, 590 F.3d 1034, 1047–48 (9th Cir. 2010).
In the post-REAL ID Act world, when corroborating
evidence has assumed more importance, it is not unfair or
unduly burdensome to require the government to identify
basic, rudimentary information about its sources when it
challenges corroborating evidence so that the IJ can properly
weigh it. The information our sister circuits have demanded
is modest. They do not require that every detail be uncovered
or every riddle solved, they merely ask that very basic
foundational questions—already in the hands of the
Executive Branch—be answered. The Executive Branch
invests significant resources in forensic document analysts,
who provide detailed declarations in immigration cases. It is
not much to ask that in the case of routine foreign fact-
checking, the government simply tell us how it acquired the
facts upon which it asks us to deny asylum.
The alternative is a decision founded solely on
anonymous hearsay, often—as in this case—produced by the
very foreign government actors the asylum-seeker accuses of
persecution. We should be wary of relying on “secret
informers, whisperers and talebearers” to decide legal rights
in this context, especially when their word is used as the sole
basis to deny relief to an otherwise qualified applicant. See
Parker v. Lester, 227 F.2d 708, 719 (9th Cir. 1955)
(cautioning against relying on untrustworthy sources in
awarding security clearances to Coast Guard employees).
The immigration system is fraught with enough risk of error.
When it is reasonably possible, we need to minimize that risk.
I respectfully dissent.