Angov v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIKOLAY IVANOV ANGOV, No. 07-74963
Petitioner,
Agency No.
v. A096-227-355
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
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
Before: Alex Kozinski, Chief Judge, and Stephen S. Trott
and Sidney R. Thomas, Circuit Judges.
Opinion by Chief Judge Kozinski;
Dissent by Judge Thomas
2 ANGOV V. HOLDER
SUMMARY*
Immigration
The panel denied a petition for review of the denial of
asylum and related relief in a case in which the Board of
Immigration Appeals denied relief on adverse credibility
grounds based on a State Department overseas investigation
indicating that petitioner had submitted fraudulent evidence.
The panel held that the immigration judge acted within
his discretion when he admitted into evidence a letter
prepared by the Director of Department of State’s Office of
Country Reports and Asylum Affairs in Bulgaria, and relied
on it to find that the police subpoenas petitioner submitted
were fraudulent.
The panel held that the IJ’s admission of the letter did not
violate petitioner’s right to examine evidence or cross-
examine witnesses against him. The panel also rejected
petitioner’s argument that admission of the letter violated due
process.
The panel held that the IJ’s adverse credibility finding
based on the fraudulent subpoenas was supported by
substantial evidence and went to the heart of petitioner’s
claim of persecution by the Bulgarian police, and that
petitioner failed to present other reliable evidence to meet his
burden of proof.
*
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
Dissenting, Judge Thomas would join five other circuits
and 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.
4 ANGOV V. HOLDER
OPINION
KOZINSKI, Chief Judge:
Five other circuits have held that an immigration judge
violates due process or the immigration laws by relying on a
State Department investigation of an asylum petitioner’s
claim. Do we fall in line?
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 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 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
1
Angov’s brief refers to him as “Roma” or “gypsy” interchangeably. So
do we.
ANGOV V. HOLDER 5
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, where 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.
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
6 ANGOV V. HOLDER
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 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
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
ANGOV V. HOLDER 7
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. More, we disagree with Alexandrov, see infra p. 9,
and see no point in remanding for the BIA to apply the
teachings of a case we believe is flat wrong.
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);
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,
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
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 constitutional and statutory 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).
Angov’s statutory arguments can be quickly dispatched.
He claims that he was denied his right to examine evidence
against him. See 8 U.S.C. § 1229a(b)(4)(B). 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 supra p. 5; 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.’”
ANGOV V. HOLDER 9
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); Cinapian, 567 F.3d at1076–77. The government here did make a reasonable effort
to obtain a witness from the Department of State, but was
prevented from doing so by State’s policy of not releasing
follow-up information regarding its overseas investigations.
It is entirely reasonable for the government not to bring a
hearsay declarant from overseas to appear at an immigration
hearing in the United States.
Angov also argues that admission of the Bunton Letter,
and the IJ’s and BIA’s reliance on it, violates due process
because the letter didn’t provide enough information to
evaluate its reliability and trustworthiness. We see little merit
in this argument but, surprisingly, five of our sister circuits
disagree. Four have held that the Constitution prohibits the
IJ and BIA from relying on consular letters like the Bunton
Letter. 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). A fifth reached the
same conclusion on statutory grounds. See Lin v. U.S. Dep’t
of Justice, 459 F.3d 255, 269 (2d Cir. 2006) (because
consular report was unreliable, agency decision that relied on
it wasn’t based on “substantial evidence”). Consequently, we
offer a thorough explanation for parting company with our
colleagues elsewhere.
The IJ found that Nikolay 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 and the BIA weren’t fazed by
10 ANGOV V. HOLDER
discovery of the fraud; they 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
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.
ANGOV V. HOLDER 11
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
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
12 ANGOV V. HOLDER
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
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
ANGOV V. HOLDER 13
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
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.
Our sister circuits have given this already shaky system
a swift kick in the gut, with only a single dissent by the level-
headed Judge Nelson in the Sixth. See Alexandrov, 442 F.3d
at 409–10 (Nelson, J., dissenting). Their rulings make it
pretty much impossible for the immigration authorities to
carry out even the little bit of fact checking they now manage
to do. These decisions smother the State Department’s
informal process of checking up on asylum petitions in layers
14 ANGOV V. HOLDER
of procedural complexity that will prove impossible to carry
out in practice.
It’s absurd. Grandiloquent language and lofty sentiments
are no substitute for law and common sense. The other
circuits have simply lost their way; they’ve overlooked some
key precedents and misconstrued others. Below, we point out
some problems with their opinions. Perhaps the Supreme
Court or Congress will intervene and decide who’s right.
1. We start with a reality check: In how many cases has
the Supreme Court held that evidence presented to a trier of
fact is so unreliable that its admission violates due process?
Angov cites none, and nor do any of the circuits that have
adopted his theory. And for good reason: The only Supreme
Court case to have addressed this argument in the
administrative law context rejected it.
Richardson v. Perales, 402 U.S. 389 (1971), involved the
denial of Social Security disability benefits based on the
testimony of a nonexamining physician and the reports of
several experts. The district court “was reluctant to accept as
substantial evidence the opinions of medical experts
submitted in the form of unsworn written reports, the
admission of which would have the effect of denying the
opposition an opportunity for cross-examination.” Id. at
397–98. It held that “the opinion of a doctor who had never
examined the claimant is entitled to little or no probative
value, especially when opposed by substantial evidence
including the oral testimony of an examining physician; and
that what was before the court amounted to hearsay upon
hearsay.” Id. at 398. The Fifth Circuit naively affirmed,
reasoning that “uncorroborated hearsay could not constitute
substantial evidence . . . when the hearsay was directly
ANGOV V. HOLDER 15
contradicted by the testimony of live medical witnesses and
by the claimant in person.” Id.The Supreme Court reversed, emphasizing the informality
of Social Security claims procedures, the impartiality of the
doctors and the practicalities and expense of conducting
20,000 claims hearings a year. Id. at 401–06. The Court
rejected both statutory and due process claims. Id. at 410.
None of the out-of-circuit cases on which Angov relies
distinguish—or even cite—Richardson v. Perales.
Even in criminal cases, the Supreme Court has been
extremely reluctant to hold that the mere admission of
evidence violates due process. Dowling v. United States,
493 U.S. 342, 352–53 (1990), firmly rejected the argument
that a defendant is denied due process because the
prosecution introduced evidence of crimes of which he had
been acquitted. See also Kansas v. Ventris, 129 S. Ct. 1841,
1847 n.* (2009) (refusing, almost unanimously, to “craft a
broad[] exclusionary rule for uncorroborated statements
obtained [from jailhouse snitches]”).
In only one line of cases has the Supreme Court held that
the mere admission of evidence amounts to a denial of due
process, and that’s where police manipulate an eyewitness to
identify the defendant as the culprit. The Court announced
this rule in Stovall v. Denno, 388 U.S. 293, 301–02 (1967),
and has been backpedaling ever since. See, e.g., Manson v.
Brathwaite, 432 U.S. 98, 117 (1977); Neil v. Biggers,
409 U.S. 188, 201 (1972); Coleman v. Alabama, 399 U.S. 1,
5 (1970); Simmons v. United States, 390 U.S. 377, 386
(1968). But see Foster v. California, 394 U.S. 440, 443
(1969).
16 ANGOV V. HOLDER
The latest case in the Stovall line, decided just last year,
is particularly instructive. In Perry v. New Hampshire,
132 S. Ct. 716, 725 (2012), the eyewitness identified the
suspect in a suggestive setting, but this happened by accident,
rather than as a result of police manipulation. By a decisive
margin, the Supreme Court declined to find a due process
violation. Id. at 730. Justice Ginsburg starts her analysis
with words that our colleagues in the other circuits should
read twice:
The Constitution, our decisions indicate,
protects a defendant against a conviction
based on evidence of questionable reliability,
not by prohibiting introduction of the
evidence, but by affording the defendant
means to persuade the jury that the evidence
should be discounted as unworthy of credit.
Id. at 723.
The Court goes on to reject Perry’s argument that “trial
judges [must] prescreen eyewitness evidence for reliability
any time an identification is made under suggestive
circumstances.” Id. at 725. Instead, exclusion of the
evidence is appropriate only “to deter law enforcement use of
improper lineups, showups, and photo arrays.” Id. at 726. In
another passage our colleagues might pin to their robes, the
Court held:
We have concluded in other contexts . . .
that the potential unreliability of a type of
evidence does not alone render its
introduction at the defendant’s trial
fundamentally unfair. . . . We reach a similar
ANGOV V. HOLDER 17
conclusion here: The fallibility of eyewitness
evidence does not, without the taint of
improper state conduct, warrant a due process
rule requiring a trial court to screen such
evidence for reliability before allowing the
jury to assess its creditworthiness.
Id. at 728 (citing Ventris, 129 S. Ct. at 1847 n.*, and
Dowling, 493 U.S. at 353).
The way to deal with unreliable evidence, the Supreme
Court tells us, is via the adversary system, which includes the
ability to confront witnesses, the assistance of counsel, jury
instructions, the burden of proof and the right to introduce
contrary evidence. Id. at 728–29. Justice Thomas concurs,
noting that the Stovall line of cases is grounded in substantive
due process, which he finds inconsistent with the strictly
procedural nature of the Due Process Clause. See id. at 730
(Thomas, J., concurring).
The constitutional adventurism of our sister circuits can’t
be squared with Perales or the Stovall-Perry line of cases.
Criminal trials reflect the pinnacle of procedural formality
because the consequences of an erroneous conviction—loss
of liberty or life—are the most serious. The Court has been
willing to protect these values by adopting quasi-substantive
rules such as those announced in Miranda v. Arizona,
384 U.S. 436, 444–45 (1966), Mapp v. Ohio, 367 U.S. 643,
655 (1961), Napue v. Illinois, 360 U.S. 264, 269 (1959),
Brown v. Mississippi, 297 U.S. 278, 285–86 (1936), and
Stovall. All of those rules were designed to counter a
particular evil: misconduct by police and prosecutors. But the
Court has steadfastly refused, even in criminal cases, to find
18 ANGOV V. HOLDER
a due process violation based on the mere unreliability of
evidence.
Ours is not a criminal case. Nor is there an allegation that
U.S. government officials manipulated the evidence or
engaged in other misconduct. The due process claim is based
entirely on the alleged unreliability of the evidence.
Comparing the opinions of other circuits with Perry reveals
the odd situation we’re in: The courts of appeals are forging
a due process rule in the administrative context, where the
Supreme Court has stressed informality and flexibility, even
as the Court itself abjures a similar due process rule in the
criminal context.
Nor can the rule our colleagues have invented be cabined
to immigration cases. If admission of evidence can violate
the due process rights of undocumented aliens, analogous
constitutional rights can’t be denied to the millions of
Americans whose professional licenses, disability benefits,
grazing privileges, mining claims, zoning permits and a
constellation of other benefits are controlled by federal, state
and local agencies. This is just the opening chapter in what
could well become the constitutionalization of vast areas of
administrative law.
2. And Angov’s case is not even in the heartland of
administrative law cases. It is at the fringes because Angov
is an alien who never formally entered the United States. He
presented himself at the San Ysidro port of entry without
valid entry documents and sought asylum. He is in the
United States physically, not legally. See Aguilera-Montero
v. Mukasey, 548 F.3d 1248, 1253 (9th Cir. 2008) (explaining
the “entry fiction”); see also Kaplan v. Tod, 267 U.S. 228,
230 (1925); United States v. Barajas-Alvarado, 655 F.3d
ANGOV V. HOLDER 19
1077, 1084–85 (9th Cir. 2011). In Landon v. Plasencia,
459 U.S. 21 (1982), the Supreme Court explained the
difference between a “continuously present permanent
resident alien” and one who presents himself at the border
seeking admission for the first time:
This Court has long held that an alien seeking
initial admission to the United States requests
a privilege and has no constitutional rights
regarding his application, for the power to
admit or exclude aliens is a sovereign
prerogative. Our recent decisions confirm
that view. As we explained in Johnson v.
Eisentrager, 339 U.S. 763, 770 (1950),
however, once an alien gains admission to our
country and begins to develop the ties that go
with permanent residence, his constitutional
status changes accordingly.
Id. at 32 (internal citations omitted); see also Zadvydas v.
Davis, 533 U.S. 678, 693 (2001). Angov’s claim of a due
process violation can’t be squared with the Supreme Court’s
prohibition in Landon. It’s far more plausible to conclude
that the rights of aliens who haven’t yet entered the country
are defined entirely by the applicable statutes and regulations.
The Supreme Court has said as much: “Whatever the
procedure authorized by Congress is, it is due process as far
as an alien denied entry is concerned.” United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950); see also
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,
212 (1953) (same). While the Court’s due process
jurisprudence has changed since the two Shaughnessy cases,
see, e.g., Goldberg v. Kelly, 397 U.S. 254, 260–61 (1970);
20 ANGOV V. HOLDER
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,
569–70 (1972), the Court has cited one or both of them in
several decisions that postdate the procedural due process
revolution, so they remain good law. See, e.g., Landon,
459 U.S. at 32; Zadvydas, 533 U.S. at 692–94.
In Landon, the Court “reaffirmed the classical doctrine on
the legal status of aliens seeking initial entry” and “cited with
apparent approval United States ex rel. Knauff v.
Shaughnessy.” Peter H. Schuck, The Transformation of
Immigration Law, 84 Colum. L. Rev. 1, 20–21, 62–63 &
n.343 (1984). In Zadvydas, the majority “reaffirm[ed] . . .
[the] distinction whereby those defined to be on the inside of
the national territorial line enjoy fundamental due process
protections whereas those on the outside do not. In the course
of the analysis, the Court all but reaffirmed . . . Mezei.”
Linda Bosniak, A Basic Territorial Distinction, 16 Geo.
Immigr. L.J. 407, 407 (2002).
Even if we were to apply the Goldberg/Roth line of cases
to aliens like Angov, it wouldn’t help him. “The Due Process
Clause applies only when the ‘state’ ‘deprives’ a person of
‘life, liberty, or property.’” 2 Richard J. Pierce, Jr.,
Administrative Law Treatise § 9.4, at 775 (5th ed. 2010).
Asylum is not life or property, and at least one of our sister
circuits has held that aliens who seek asylum upon reaching
the U.S. border have no liberty interest in entering the
country. See Rafeedie v. INS, 880 F.2d 506, 519–20 (D.C.
Cir. 1989). This seems entirely right.
Congress and the Attorney General have given 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-
ANGOV V. HOLDER 21
evidence; to cross-examine witnesses; and to have a written
record kept of the proceedings. 8 U.S.C. § 1229a(b)(4).
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 who have no rights
under our laws, 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.
3. Furthermore, it is Angov who 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.
This matters because the Supreme Court often permits
evidence to be used for impeachment, even when it is
constitutionally inadmissible for substantive purposes. For
example, evidence obtained without giving the suspect proper
Miranda warnings can’t be introduced in the government’s
case-in-chief, but it is admissible for impeachment. See
Harris v. New York, 401 U.S. 222, 224–26 (1971). Similarly,
illegally seized evidence can be admitted to impeach
statements made by a criminal defendant. See United States
v. Havens, 446 U.S. 620, 627–628 (1980); Walder v. United
States, 347 U.S. 62, 64–66 (1954).
Even assuming it were appropriate to craft a rule limiting
the admission of evidence based on an appellate court’s gut
feeling as to its reliability, what’s sufficient for impeachment
is certainly less than what’s needed to carry the asylum
applicant’s burden of proof. Impeachment evidence, after all,
need not be believed; it need only cast doubt on the evidence
22 ANGOV V. HOLDER
presented by the party with the burden of proof. 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.
4. Even if petitioner had a due process right in the quality
of the impeachment evidence presented by the government,
there would be no constitutional violation here. The Supreme
Court has told us that the appropriate test for evaluating the
constitutional adequacy of procedures in immigration cases
is that articulated in Mathews v. Eldridge:
In evaluating the procedures in any case, the
courts must consider the interest at stake for
the individual, the risk of an erroneous
deprivation of the interest through the
procedures used as well as the probable value
of additional or different procedural
safeguards, and the interest of the government
in using the current procedures rather than
additional or different procedures.
Landon, 459 U.S. at 34 (citing Mathews v. Eldridge, 424 U.S.
319, 334–35 (1976)); see also Jason Parkin, Adaptable Due
Process, 160 U. Pa. L. Rev. 1309, 1325–26 & n.77 (2012).
We must thus consider not only the degree to which
Angov may be prejudiced by admission of the Bunton Letter,
but also the harm the government would suffer if it were
required to produce more. We note that the other circuits did
no such balancing; indeed, they seem to overlook Mathews
and Landon altogether.
ANGOV V. HOLDER 23
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
what does this have to do with due process?
The problems Angov identifies 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, 400–402 (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
24 ANGOV V. HOLDER
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 supra p. 5; 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
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
ANGOV V. HOLDER 25
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.
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
26 ANGOV V. HOLDER
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
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)).
ANGOV V. HOLDER 27
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).
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.
Holding that the admission of the Bunton Letter violates
due process would cripple the government’s ability to detect
fraud in the asylum process. 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
government’s position on providing additional information
28 ANGOV V. HOLDER
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, as our sister circuits do, 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, see
also Banat, 557 F.3d at 891–92, Anim, 535 F.3d at 257–58,
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 circuits enshrine as constitutional
requirements. Complying with the requirements put in place
by the other circuits 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
ANGOV V. HOLDER 29
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. By knocking out even this
feeble check on fraud and fabrication, the other circuits
subvert the asylum process, giving charlatans a free pass into
the United States.
5. In any event, our sister circuits’ “faith in procedural
choreography is . . . fundamentally flawed.” United States v.
30 ANGOV V. HOLDER
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 put in place
by other circuits; 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
District. Ms. Bogdanovich also told FSN
Popov that the case numbers on the subpoenas
were not correct, there was no room 4 on the
ANGOV V. HOLDER 31
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 other circuits, but would it be
much more valuable than what we already have? We would
now know for sure that the information came to us via at least
four levels of hearsay: (1) Ms. Bunton; (2) Agent Smith;
(3) FSN Popov; and (4) Ms. Bogdanovich. That’s no help.
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 hearsay 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?
32 ANGOV V. HOLDER
At this point, we would be faced with a whole new set of
questions: How do we know Popov really went to the police
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
ANGOV V. HOLDER 33
case without relying on evidence that would be laughed out
of court if presented in a domestic trial. See, e.g., Meza-
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
34 ANGOV V. HOLDER
government actors. Cf. Perales, 402 U.S. at 402–06. The
Bunton Letter encloses five photographs depicting locations
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.
ANGOV V. HOLDER 35
In an environment where it’s pretty much impossible to
obtain first-hand accounts of most of the relevant facts, does
due process require the government to fight an uphill battle
on 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. As the Supreme Court has
explained, “The constitutional sufficiency of procedures
provided in any situation . . . varies with the circumstances.”
Landon, 459 U.S. at 34. 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.” The
Mathews balancing test calls for a fair weighing of the
burdens on both parties to the controversy in light of “the
circumstances.” Landon, 459 U.S. at 34. The balance struck
by the other circuits is so one-sided and unfair that it hobbles
the government’s ability to detect and combat fraud in the
asylum application process.
The consequence of the rule adopted by the other circuits
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. Nor does the other
circuits’ 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 more difficult for honest asylum seekers to
obtain relief. The ultimate victims of the epidemic of
substantive due process that has infected the circuit courts
36 ANGOV V. HOLDER
will be the tired, poor, huddled masses who will find the
golden door slammed in their faces.
* * *
We conclude 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 Bulgarian
police, the fact that the subpoenas were fraudulent “goes to
the heart of [Angov’s] claim of persecution.” See Rizk v.
Holder, 629 F.3d 1083, 1087–88 (9th Cir. 2011).
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.
ANGOV V. HOLDER 37
Appendix: Mihaylova Letter
38 ANGOV V. HOLDER
ANGOV V. HOLDER 39
THOMAS, Circuit Judge, dissenting:
I would join the five other circuits that have considered
the issue. 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
We have long criticized the practice of using anonymous
hearsay as the basis for denying constitutional rights, without
affording due process. As Judge Walter Pope wrote in 1955
in a case involving security clearances:
The question is: Is this system of secret
informers, whisperers and talebearers of such
vital importance to the public welfare that it
must be preserved at the cost of denying to the
citizen even a modicum of the protection
traditionally associated with due process?
Parker v. Lester, 227 F.2d 708, 719 (9th Cir. 1955).
For Judge Pope, the answer was an unequivocal “no,” and
that should be our answer today.
A
As we have steadfastly held, immigration proceedings
must be conducted “in accord with due process standards of
fundamental fairness.” Ramirez-Alejandre v. Ashcroft,
319 F.3d 365, 370 (9th Cir. 2003) (en banc) (internal
40 ANGOV V. HOLDER
quotation marks omitted). For that reason, four of our sister
circuits have held that the government violates the due
process rights of aliens when it denies 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.
Banat v. Holder, 557 F.3d 886, 892–93 (8th Cir. 2009); Anim
v. Mukasey, 535 F.3d 243, 256–258 (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).
Those circuits have held that due process requires consular
letters to meet the minimal standards of reliability and
trustworthiness in order to be admissible.
To be sure, “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.” Banat,
557 F.3d at 890. However, as the 8th Circuit also explained:
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.
Additionally, without reaching the Constitutional
question, the Second Circuit rejected a “highly unreliable”
ANGOV V. HOLDER 41
consular report on the grounds that it did not amount to
substantial evidence to support a finding that the document
was forged. Lin v. U.S. Dep’t. of Justice, 459 F.3d 255,
268–272 (2d Cir. 2006); see also Balachova v. Mukasey,
547 F.3d 374, 382–83 (2d Cir. 2008) (applying Lin). Lin
quoted with approval the Department of Justice’s own
guidelines for preparation of such reports,1 distilling them
into three factors for evaluating the reliability of a consular
letter: “(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.
Keeping in mind the Lin factors, an examination of the
circumstances giving rise to the other circuits’ concerns is
instructive in evaluating this case.
1
The DOJ 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 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.
42 ANGOV V. HOLDER
In Banat, the Eighth Circuit rejected the IJ’s reliance on
a consular letter that cited to an unidentified embassy
investigator, with no indication of the qualifications or
experience of the investigator or the investigator’s “contact,”
and that contained multiple levels of hearsay. 557 F.3d at891–92. The Eighth Circuit applied the Lin factors and
determined that none of the factors were met. Id. at 891–93.
As a result, the Court 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.
In Balachova, the Second Circuit concluded that “the
consular report is unreliable and cannot contribute to a
finding of substantial evidence.” 547 F.3d at 383. The Court
noted that the report “contains 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.” Id. Applying the Lin factors, it held
that the IJ could not rely on the letter.
In Anim, the Fourth Circuit considered a State Department
letter authored by the same official involved in our case. It
concluded that “the Bunton letter contains insufficient indicia
of reliability and, as a result, its use was fundamentally
unfair.” 535 F.3d at 256. It noted that the letter “is
comprised entirely of multiple hearsay statements.” Id. at
257. It also pointed out that the “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. The Court
ANGOV V. HOLDER 43
observed that the letter provided “markedly insufficient
information” as to how the investigation was conducted, and
emphasized that “[w]ithout 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.” Id. The
Fourth Circuit determined that the letter did not satisfy the
Lin test, concluding that the letter did not “meet even the
minimum standards prescribed by [the Department of
Homeland Security],” and lacked “the clarity and content
necessary to provide fair or probative evidence in an
immigration proceeding.” Id. at 258. The Fourth Circuit also
warned of the temptation to defer to and rely on “the general
prestige and competence of the Department of State” as the
primary factor in determining the document’s authenticity,
rather than on “adequate evaluation of the reliability of the
document.” Id.In Lin, the Second Circuit rejected a letter almost
identical to the one at issue here. The report was based on the
opinions of government officials who, as the Second Circuit
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 concluded
that the Consular Report was “insufficiently detailed to
permit a reviewing court to assess its reliability.” Id. at 270.
In Alexandrov, the Sixth Circuit concluded that two
consular memoranda did “not meet our standards of
trustworthiness and reliability and were therefore improperly
relied upon by the immigration court.” 442 F.3d at 407. The
Court noted that there was no identification of the embassy
investigator, no clarification “to any degree [of] what type of
investigation was conducted,” no description of how the
investigation was concluded, no explanation of the
44 ANGOV V. HOLDER
investigator’s qualifications, and no identification of the
person who provided the information. Id. As the Court
summarized, “[t]here is not much that we do know aside from
the apparent conclusions of the mysterious investigation.” Id.In Ezeagwuna, the Third Circuit held that the BIA
violated the petitioner’s due process rights by basing its
credibility finding on a consular letter, which the Court
concluded was “neither reliable nor trustworthy.” 325 F.3d
at 408. It found that the letter constituted “multiple hearsay
of the most troubling kind.” Id. at 406. The Court also noted
that the investigator was unidentified, country officials were
identified only by position, the sources of information were
not disclosed, the method of investigation was not detailed,
and only conclusory statements were made. Id. at 406–08.
It observed that it had “absolutely no information about what
the ‘investigation’ consisted of, or how the investigation was
conducted in this case.” Id. at 408. The Court was also
concerned that the agency was “attempting to use the prestige
of the State Department letterhead to make its case.” Id. at
407. It emphasized that “the Board’s decisions cannot be
sustained simply by invoking the State Department’s
authority,” noting that the procedural safeguard of judicial
review “would be destroyed if the Board could justify its
decisions simply by invoking assertions by the State
Department that themselves provide no means for evaluating
their validity.” Id. (quoting Li Wu Lin v. INS, 238 F.3d 239,
246 (3d Cir. 2001)).
Our case cannot be distinguished from those decided by
our sister circuits. In this case, the immigration judge relied
on a short, unsworn letter from Cynthia Bunton, the State
Department’s Director of the Office of Country Reports and
Asylum Affairs (“the Bunton Letter”). The Bunton letter
ANGOV V. HOLDER 45
consisted of unauthenticated, hearsay statements from
unidentified officials. There is no description of the
methodology employed in the investigation, the qualifications
of the investigators, or who was involved. In short, the
Bunton Letter contains conclusory statements of fact, but no
information, as required by the Lin factors, about “(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.” Lin, 459 F.3d at
271. We are left, as were our sister circuits, with a document
that is “insufficiently detailed to permit a reviewing court to
assess its reliability.” Id. at 270. Indeed, in many ways, there
is less information in the Bunton letter than in letters rejected
as unreliable by our sister circuits. Further, the key
information provided in this case was by an unnamed
individual at the police department where Angov claims to
have been severely beaten on account of his political views.
Like the government officials in Lin, the official–whose
department had been accused of brutality by Angov–had a
strong incentive to be “less than candid.” Id. at 269.
In sum, whether we cast the issue as one of due process or
of substantial evidence, the Bunton letter falls far short of
satisfying the standards of reliability established by our sister
circuits and the agency should not have relied upon it.2
2
If I were writing on a clean slate, I would join the Second Circuit and
adopt the Lin factors as probative of the substantial evidence question,
without reaching the due process issue. If forced to decide the contours
of due process in this context, I would join our four other sister circuits
and hold that administrative reliance on hearsay letters lacking sufficient
authentication, such as the Bunton letter, violates due process.
46 ANGOV V. HOLDER
B
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.
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 reliability 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
ANGOV V. HOLDER 47
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
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
48 ANGOV V. HOLDER
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
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. Nearly sixty years ago, Judge Pope underscored
the danger of relying on “secret informers, whisperers and
talebearers” to decide legal rights in the administrative
process. We should not succumb to that temptation again,
especially when it is used as the sole basis to deny relief to an
otherwise qualified applicant. The immigration system is
ANGOV V. HOLDER 49
fraught with enough risk of error. When it is reasonably
possible, we need to minimize that risk.
I respectfully dissent.