Argued and Submitted June 5, 2012.
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Nicolette Glazer (argued), Law Offices of Larry R. Glazer, Century City, CA, 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.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-227-355.
Before: ALEX KOZINSKI, Chief Judge, and STEPHEN S. TROTT and SIDNEY R. THOMAS, Circuit Judges.
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?
Nikolay Angov, a Bulgarian citizen, claims he was persecuted by the Bulgarian government because he is Roma. 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 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 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).
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 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. 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, 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 pp. 1266-67; cf. Cinapian, 567 F.3d at 1076 (had the government given petitioners a chance to examine forensic reports before hearing, they may have been able to produce rebuttal evidence).
Angov also argues that he was denied his statutory right to cross-examine the witnesses against him. We've held that, before hearsay statements made by an absent witness can be admitted into an immigration hearing, " ‘ the government must make a reasonable effort ... to afford the alien a reasonable opportunity to confront the witnesses against him or her.’ " Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir.2005) (quoting Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir.1997)); see also § 1229a(b)(4)(B); Cinapian, 567 F.3d at 1076-77. 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 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.
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 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 v. Jack, 216 Fed.Appx. 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 Fed.Appx. 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 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.
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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), involved the denial of Social Security ...