Thursday, December 5, 2013
Panel Approves Asylum Denial Based on State Department Hearsay
Kozinski Calls Contrary Rule Adopted by Five Circuits ‘Absurd,’ Suggests Congress or High Court Intervene
By KENNETH OFGANG, Staff Writer
A State Department investigative report may be admitted at an asylum hearing to impeach the credibility of the applicant, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the court denied review of a Board of Immigration Appeals ruling that a Bulgarian citizen failed to present credible evidence that he was persecuted by police in Sofia for being a gypsy. The BIA ruling largely relied on a letter by a State Department official, reporting that consular officials in the applicant’s home country had investigated his claims and were unable to verify them.
The letter from Cynthia Bunton, then the director of the Office of Country Reports and Asylum Affairs, said that evidence presented by Nikolay Angov in support of his application, including subpoenas purporting to require him to appear at a police station, appeared fraudulent.
The embassy’s investigator, she said, was unable to verify the identities of three officers named in the subpoenas. Those documents, Bunton added, included erroneous case and telephone numbers, referred to room numbers that didn’t exist, and contained a seal that was too small to be genuine.
Nor, she said, could Angov’s past claimed residences be found, and his claim to have lived in a “gypsy neighborhood” appeared false because the neighborhood where he claimed to have lived was only 20 to 30 percent Roma.
Angov and his counsel argued unsuccessfully that the letter should be excluded in the absence of an opportunity to cross-examine the investigator, then sought to rebut it by presenting maps, photos, and other evidence, including a letter from a purported official of a gypsy civil rights organization in Bulgaria.
Chief Judge Alex Kozinski, writing for the Ninth Circuit and joined by Senior Judge Stephen Trott, said the immigration judge acted within his discretion by admitting the Bunton letter, and that the BIA properly determined that Angov lacked credibility and denied relief.
In asking the Ninth Circuit to overturn that ruling, Angov’s counsel argued that the BIA violated a rule, adopted by five other circuits, that the Due Process Clause and the immigration laws bar reliance on a State Department investigation to make an adverse credibility determination. But Kozinski called the rule “absurd” and said the Ninth Circuit would not “fall in line.”
The IJ’s determination that Angov presented fraudulent evidence, Kozinski said, should have resulted in termination of the proceedings and prosecution, yet both the IJ and the BIA went on to consider the possibility of granting asylum based on the other evidence. “
“No other adjudicator in the United States would react with such equanimity to finding that a party had tried to bamboozle it,” the chief judge wrote.
The reality, he explained, is that the reward for lying about persecution—the right to stay in the United States and potentially obtain citizenship—is so great, and the risks so minimal, as to create a “moral hazard.”
The Romanian-born Kozinski wrote:
“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….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.”
Rather than follow the other circuits, which he said had “lost their way,” the Ninth Circuit will allow reliable hearsay evidence to be admitted at asylum hearings, the chief judge said.
The other circuits are wrong, he said, because such evidence is routinely admitted in other types of administrative law cases, an applicant such as Angov—who was never lawfully admitted to the United States—has fewer legal rights than other litigants, the burden of proving eligibility for asylum is on the applicant, admission of the evidence is consistent with the rebuttable presumption that government officials have properly performed their jobs, and requiring additional procedural safeguards will not materially improve the probative value of the evidence.
“Perhaps the Supreme Court or Congress will intervene and decide who’s right,” he commented.
He noted that an applicant such as Angov can attempt to bolster his credibility by presenting hearsay, such as a letter from a purported civil rights activist whose identity cannot be confirmed, and who—assuming she exists and holds the position she claims—faces no accountability for any errors or misstatements. That being the case, Kozinski reasoned, similar hearsay statements by government officials who have no apparent motive to lie, and who could be fired or prosecuted if they did, should be similarly admissible.
Judge Sidney Thomas, dissenting, said he would join the other circuits.
Consular reports, and summaries like the unsworn Bunton letter, he argued, cannot be reasonably relied upon.
Citing Li Wu Lin v. INS (3d Cir. 2001) 238 F.3d 239, he wrote:
“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.’”
The appeal was argued by Nicolette Glazer of the Law Offices of Larry R. Glazer in Century City for the petitioner and by Civil Division attorney Jesse Lloyd Busen for the Department of Justice.
The case is Angov v. Holder, 07-74963.
Copyright 2013, Metropolitan News Company