Tuesday, December 10, 2013

Court Bails DHS Out of Otherwise Accepted Evidentiary Requirements in Asylum Hearings

Many people understand the concept of hearsay from various courtroom-drama television shows and movies. The legal definition of hearsay is a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. In layman's terms, if someone were testifying in court as to what someone else told him/her out of court to try to support the truth of that very statement, then that would be hearsay. For example, if I were in court testifying that I knew the person on trial committed the crime for which s/he's being charged because my friend who is not in court but who saw it told me so, then that would be hearsay. One could see that it would be more reasonable for my friend to come into court and testify himself/herself rather than relying on my recollection of what my friend told me.

Hearsay is not limited to spoken words but also applies to documents where the writer of the document is not available in court but the document is being used anyway to prove the truth of the statements within the document. Not taking into account various exceptions, hearsay, whether spoken or written, generally is not accepted in court because of the original statement's not being made under oath, the inability of the opposing party to cross-examine the original speaker or writer, and the judge's or jury's lack of observation of the original speaker or writer as the statement is being spoken or read into evidence. Instead, courts tend to require the original speaker or writer to come into court to testify.

Even though the evidentiary rules in the various United States immigrations courts are more relaxed, several federal courts nationwide have held, at least in the context of asylum applications heard in a United States immigration court, that, "[U]nsworn, 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." Nevertheless, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, explicitly refused last week to follow that trend and held that such letters are acceptable in United States immigration court. The case Angov v. Holder bails out the United States Department of Homeland Security ("DHS") from abiding by otherwise long-accepted almost-universal evidentiary standards within the United States relating to hearsay by effectively permitting DHS to have manufactured the very evidence it uses to prove its position in an immigration-court case.

The issue in the case was the acceptance by the Immigration Judge of a letter prepared by a United States Department of State ("DOS") investigator at the United States Embassy in Sofia, Bulgaria. The letter specifically addressed the Bulgarian-foreign-national asylum applicant's contention that he had been subpoenaed twice to appear in a Sofia, Bulgaria police station. The investigator's letter concludes, among other assertions, that the subpoenas offered by the Bulgarian man were fraudulent based on the investigator's communication with a police officer allegedly posted at the very police station at which the subpoenas required the Bulgarian man to appear. The Bulgarian man submitted evidence to contradict the letter and argued against the acceptance of the letter, in part, on fairness grounds.

Possibly perceiving an issue of unfairness, the Immigration Judge requested DHS to have a DOS employee testify in court regarding the letter. In response, DHS produced yet another letter from a DOS employee who in part wrote in the letter that it is against DOS policy to provide more details about an overseas investigation. Instead of dismissing both letters as inadequate, the Immigration Judge made an adverse-credibility finding against the Bulgarian man and denied his asylum application, a decision that the BIA affirmed and that the Ninth Circuit refused to review because of the fraudulent basis of the Bulgarian man's asylum application.

By refusing to review the BIA's affirmation, the Ninth Circuit accepted as truth the statements made within the first DOS letter without requiring the letter writer, or any DOS employee for that matter, to testify in court regarding the statements, thereby permitting not only hearsay but also double hearsay (the first layer of hearsay being the alleged statement from the Sofia, Bulgaria police officer to the DOS investigator and the second layer being the DOS investigator's words written on the letter) prepared solely for the purpose of the asylum hearing to be accepted as the truth. The Ninth Circuit ducks this otherwise clear violation of any reasonable idea of fairness in part by using the all-encompassing argument that it is the Bulgarian man's burden, and not DHS's, to prove that he merits asylum, thereby requiring all asylum applicants effectively to move mountains to overcome the slightest doubts of legitimacy raised by manufactured hearsay evidence.

Despite this recent decision, it is unsurprising to see a backlash by a federal court regarding evidentiary rules pertaining particularly to asylum applications given the incredible amount of fraud that has been perpetrated against DHS concerning such applications and, relatedly, the great dependence such applications have on the credibility of the applicant. The Ninth Circuit's solution may not be ideal, but it exposes a long-existing frustration within the judiciary relating to immigration cases. The decision is also instructive to asylum applicants moving forward to be more diligent and careful in the preparation of their asylum cases.

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