Vatyan v. Mukasey , 508 F.3d 1179 ( 2007 )

Opinion by Judge FISHER; Dissent by Judge CLIFTON.

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 hearing, Vatyan attempted to introduce documents purportedly from the Armenian government but the IJ refused to consider them, apparently because Va-tyan had failed to obtain a government certification of their authenticity. We hold that an immigration petitioner may seek to authenticate a public document 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, Va-tyan was born in Azerbaijan but, amid the social unrest that accompanied the decline of the Soviet Union, was forcibly deported to Armenia. In Armenia, Vatyan faced further hardship. Like other ethnic Armenians who had lived in Azerbaijan, Va-tyan was marginalized and had trouble finding work. His son was conscripted into the military and died under mysterious circumstances 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 several documents that he claimed bolstered his account of persecution. 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 “certified]” 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 inadmissible. 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 proceeding 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 documents through his own testimony, the IJ rejected this proposed 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 undeterred by the IJ’s ruling— attempted again to introduce the documents by eliciting Vatyan’s testimony regarding the government stamps appearing on the documents, how he had obtained the documents and why he had not obtained certification 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 documents came into [Va-tyan’s] possession” and why Vatyan had not attempted to obtain certification were not “relevant” because the documents had “not been properly authenticated.”

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 imprisonment. 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 immigration proceeding, this case falls into the latter category.¹

We recognized in Khan that “[documents may be authenticated in immigration proceedings through any recognized 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.

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 foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness ...”); FecLR.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 documents or whether we were referring more broadly to recognized 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 document.

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 authentication because ‘[persecutors 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-Hernan-dez 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 viewing 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] procedures generally require attestation of documents by the very government the alien is seeking to escape, courts generally do not view the alien’s failure to obtain authentication as requiring 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 difficult 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

Both the Federal Rules of Civil Procedure and the Federal Rules of Evidence acknowledge that certification is not the exclusive means of authenticating a foreign public document. 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 official 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 requirements 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 requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent 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).

The IJ therefore erred insofar as he required Vatyan to produce some form of official certification as a mandatory prerequisite 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 authentication devices the “[testimony of [a] witness with knowledge.” Fed.R.Evid. 901(b)(1).

Here, Vatyan provided evidence that arguably could have supported authentication. A longtime resident of Armenia, Vatyan testified that he recognized the official stamps on the documents as stamps of the Armenian government. Moreover, he attempted to establish a chain of custody by explaining 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 1186. 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 evidence 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.

Of course, simply because an IJ may consider a petitioner’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 relevant to the issue of the documents’ authenticity. After listening to the testimony for this purpose, the IJ can assess the credibility of that testimony and determine whether the balance of the evidence is sufficiently compelling to satisfy him that the documents are what Vatyan claims them to be.⁵

III.

The IJ’s error was not harmless. Notably, the IJ’s credibility determination was the result of, rather than the basis of, his finding that the documents were not authenticated.⁶ Specifically, 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 purported 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 Va-tyan’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 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.

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 testimony 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 [flact, [ ] not been properly authenticated”). Thus, although the IJ "heard" Vatyan’s testimony regarding the documents, he never considered this testimony as relevant to the issue of authentication. To illustrate this critical distinction, under the IJ’s mistaken 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.

3 . In Lin, we applied our rule that "[m]ere failure to authenticate documents, at least in the absence of evidence undermining their reliability, does not constitute sufficient foundation for an adverse credibility finding.” 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 documents submitted by Lin”).

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 experience” 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 documentary 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 evidence 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 probative force.” Whitworth, 856 F.2d at 1283 (internal quotation marks omitted).

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 authenticate 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.