United States Court of Appeals
For the First Circuit
No. 03-1036
SAMUNA YONGO,
Petitioner, Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent, Appellee.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Oberdorfer,* Senior District Judge.
Jeffrey W. Goldman with whom Melissa A. Woodard and Testa,
Hurwitz & Thibeault were on brief for petitioner.
Beth J. Werlin with whom Nadine K. Wettstein, Mary A. Kenney,
American Immigration Law Foundation, Iris Gomez, Massachusetts Law
Reform Institute, Harvey Kaplan and Kaplan, O'Sullivan & Friedman,
American Immigration Lawyers Association, New England Chapter, were
on brief for American Immigration Law Foundation, Massachusetts Law
Reform Institute and American Immigration Lawyers Association, New
England Chapter, Amici Curiae.
Margaret Perry, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, with
whom Peter D. Keisler, Assistant Attorney General, Civil Division,
and Mary Jane Candaux, Senior Litigation Counsel, were on brief for
respondent.
January 14, 2004
*
Of the District of Columbia, sitting by designation.
BOUDIN, Chief Judge. Samuna Yongo, an asylum seeker from
the Democratic Republic of the Congo (formerly Zaire) who is the
petitioner in this case, arrived in Boston by air from Europe in
January 1997.1 He held a passport in the name of Masamuna Eduardo
and claimed to be that person. When challenged by immigration
authorities, he admitted that this was not his passport. The INS
began an exclusion proceeding on the ground that he was an alien
who had no valid entry document and had used a fraudulent passport
and visa. 8 U.S.C. §§ 1182(a)(6)(C)(i) & (a)(7)(A)(i)(I) (2000).
Yongo conceded that he was subject to exclusion, but in
April 1997 he filed an application for asylum as one who had been
persecuted and had a well-founded fear of future persecution. 8
U.S.C. §§ 1158 (2000). See Yatskin v. INS, 255 F.3d 5, 9 (1st Cir.
2001); 8 C.F.R. § 208.13(b)(2003). At that time, Zaire was
governed by a long-time ruler, Mobutu Sese Seko ("Mobutu"), who was
overthrown in May 1997.
In support of his application, Yongo testified in an
asylum hearing held in July 1997 before an administrative law judge
("ALJ") that in the early 1990s, Yongo had been a member of a pro-
democracy group opposing Mobutu; that he (Yongo) had been arrested
in May 1994 for distributing political pamphlets and arbitrarily
1
Zaire is the name used in 1997 for what was formerly the
Belgian Congo and is now the Democratic Republic of the Congo. The
Democratic Republic of the Congo lies immediately east of the
Republic of the Congo, a separate country often referred to as the
Congo.
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jailed for 10 months; that he had been released in March 1995 after
promising to cease his opposition to Mobotu but had been arrested
and imprisoned again in July 1995 after joining in a political
parade; and that on both occasions, he had been interrogated about
his political activities and physically abused.
Yongo further testified that in late June 1996, he had
escaped from prison with the help of his father; fled to the Congo
for five months; left the Congo in mid-November 1996 with the help
of a guide paid by his father; traveled in Portugal, France, and
Germany (for 13 days); and then visited Holland before flying to
the United States in January 1997. He said that this was his first
application for asylum and that he had not sought asylum or refugee
status in Germany.
At a further hearing in September 1997, both sides
tendered new evidence. Yongo offered a birth certificate and
medical record–-the latter to show that he had had malaria (as he
had earlier claimed) on his second release from prison; the INS
noted that the first document was not authenticated and the second
contained hearsay. The ALJ accepted the two documents, saying he
could not give them much weight given the inability to authenticate
them.
In the same hearing, the INS offered two documents: one
was a request from an INS officer in Boston to INS officials in
Germany and the other was a reply from an INS officer based in
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Germany reporting on his review of German immigration records
showing (according to his report) the following: that in late June
1996–-when Yongo had testified he was hiding in the Congo--an alien
with Yongo's name and date of birth had been arrested near
Frankfurt and had applied for asylum. This report was later
superceded by more detailed information, as explained below.
In the September 1997 hearing, Yongo flatly denied that
he had been near Frankfurt or applied in Germany for asylum. He
suggested that some imposter had used his name and identification
or that the records pertained to an unknown relative with the same
name. Saying that he was concerned about Yongo's credibility, the
ALJ asked the INS to see whether German immigration records
contained a photograph. He told the INS to serve Yongo with any
information obtained, promising Yongo a chance to offer new
evidence in response.
The INS then filed and served many pages of copies and
translations of purported official German immigration records
including a signed asylum application, photograph and fingerprint
records. In response, Yongo's counsel filed a letter conceding
that the fingerprints, photograph and signature were those of Yongo
but denying that Yongo had been in Germany at the time; instead,
the letter said, the explanation lay in efforts of Yongo's father
to obtain German documentation for Yongo.
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At the resumed hearing in May 1998, an INS officer
testified to the authenticity of the documents. He said that he
had served for five years (ending in December 1997) in the INS
office in Frankfurt; was familiar with German immigration record-
keeping; and had received the documents now offered from a German
Border Patrol Officer who had acquired them from official files.
These records showed, he said, that Yongo had been arrested in
Frankfurt and applied for asylum in Germany in June 1996. He also
opined that the records could not have been fabricated and that
German immigration records were extremely accurate.
Yongo then testified that the records contained his
fingerprints, photograph and signature but he continued to deny
that he had ever been in Frankfurt or had applied for asylum in
Germany. Rather, he explained, he had been hiding in the Congo at
the time and he now remembered having been photographed and
fingerprinted there in mid-August 1996 by men hired by his father
to provide false German documents for Yongo–-men whom he had never
heard from again. Yongo did not explain how this squared with
German records saying that he had been in Germany two months before
the alleged encounter in the Congo.
At this point, the ALJ said that he found the case
"difficult" because if Yongo's claims as to his treatment were
true, they would likely warrant asylum. Although by this time
Mobutu had been out of power for a year, Zaire then remained in a
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state of political unrest. But the ALJ said that he found that
inconsistencies between Yongo's testimony and the German records
undercut Yongo's credibility, warranting denial of his asylum
claim.
Yongo appealed to the Board of Immigration Appeals
challenging, in particular, the admission of the German documents
and the finding that Yongo was not credible. Under new procedures
adopted in 1999, a single member of the Board issued a so-called
streamlined decision affirming without opinion the decision of the
ALJ, and designating the ALJ's decision as the final agency
determination for the purpose of judicial review. 8 C.F.R. §
1003.1(e)(4)(2003)(formerly 8 C.F.R. § 3.1(e)(4)). Yongo has now
sought review in this court; under the new procedures, we review
directly the decision of the ALJ. Herbert v. Ashcroft, 325 F.3d
68, 71 (1st Cir. 2003); Albathani v. INS, 318 F.3d 365, 373 (1st
Cir. 2003).
Yongo's first claim on appeal–-which we review de novo,
Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir. 1999)--is that
the ALJ violated Yongo's constitutional right to due process of law
by relying upon unauthenticated documents, hearsay presented by the
testifying INS officer, and opinions (of the same officer) offered
by one not properly qualified as an expert. The Federal Rules of
Evidence do not apply in INS proceedings, Henry v. INS, 74 F.3d 1,
6 (1st Cir. 1996), but the less rigid constraints of due process
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impose outer limits based upon considerations of fairness and
reliability.2
We might dispose of Yongo's claims or alter the standard
of review for lack of timely objections by Yongo; but, as there is
some dispute about whether there were adequate objections and
either way the result is the same, we will assume for argument's
sake that the objections were preserved. Many of the claims could
also be deemed mooted by Yongo's admission that the German records
are genuine; but the admission was arguably prompted by a need to
respond to documents and testimony that he says should not have
been admitted.
We start with the authentication issue on which Yongo's
claim for reversal principally rests. Unfortunately for Yongo,
authentication is also the most practical and flexible of the three
relevant doctrines. In substance, authentication requires nothing
more than proof that a document or thing is what it purports to be
and, even though the Federal Rules of Evidence spell out various
options, the rules also stress that these options are not exclusive
and the central condition can be proved in any way that makes sense
in the circumstances.3
2
Felzcerek v. INS, 75 F.3d 112, 115 (2d. Cir. 1996); Espinoza
v. INS, 45 F.3d 308, 310 (9th Cir. 1995); Bustos-Torres v. INS, 898
F.2d 1053, 1055 (5th Cir. 1990).
3
Fed. R. Evid. 901-902; United States v. McMahon, 938 F.2d
1501, 1508-1509 (1st Cir. 1991); 5 Weinstein's Federal Evidence §
901.03 (4th ed. 2003).
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Here, the German records were authentic if they were
genuine German immigration records, and this latter condition was
established by the testimony of the INS officer as to their
provenance (that he got them from a German Border Police Official)
and appearance (the INS officer was familiar with German
immigration records). This evidence is sufficient to authenticate
even if we disregarded any further (hearsay) statement of the
absent German official as to the origin of the records, namely, his
own statement that he had gotten them from official files.
As it happens, the ALJ did not have to disregard that
German official's reported statements. In an INS proceeding the
ALJ is not bound by formal hearsay rules. Henry, 74 F.3d at 6.
Highly unreliable hearsay might raise due process problems, but
here there is nothing dubious about the German official's hearsay
statement, a statement that dovetails with the non-hearsay report
and assessment of the INS officer.
Yongo also objects that the INS should have used the more
complex procedure for authentication of documents provided by 8
C.F.R. § 287.6 (2002), but this provision offers "one, but not the
exclusive, method" for authenticating a document in an INS
proceeding. Iran v. INS, 656 F.2d 469, 472 (9th Cir. 1981); see
also Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir. 2003). In
fact, the subpart in which the regulation appears says that the
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regulations do not create "any right, substantive or procedural .
. . ." 8 C.F.R. § 287.12 (2002).
Of course, once the documents were admitted, a separate
hearsay objection remained insofar as their relevance depended on
the truth of statements made in the documents: "authentic" means
the document is "real," not that its contents are necessarily
"true." Here, the documents had both non-hearsay and hearsay uses.
Yongo's asylum application, once authenticated, was directly
admissible (like a driver's license or marriage certificate) to
contradict his claim that he had never sought asylum in Germany.
See Felzcerek v. INS, 75 F.3d 112, 115 (2d. Cir. 1996); McMorrow v.
Schweiker, 561 F. Supp. 584, 589 (D. N.J. 1982).
By contrast, so far as the documents purported to record
Yongo's arrest in Frankfurt, this would arguably be a use depending
on the truth of the matter asserted in the document. The line is
somewhat fuzzy (Yongo's photograph on a record labeled "arrest
record" would be an interesting problem). But even if we assume
that the arrest record was in part hearsay, it was hardly so
unreliable as to offend due process. In fact, even in a federal
court the contents might well qualify for admission for their truth
(we need go no further) under the public records exception.4
4
Fed. R. Evid. 803(8); see, e.g., United States v.
Loyola-Dominguez, 125 F.3d 1315, 1317 (9th Cir. 1997) (warrants of
deportation); United States v. Versaint, 849 F.2d 827, 831 (3d Cir.
1988)(police reports).
-9-
Yongo relies heavily upon Ezeagwuna v. Ashcroft, 325 F.3d
396, 407 (3d Cir. 2003), involving a letter used in an asylum
proceeding written by a State Department official, reporting the
results of an investigation of the applicant's claims conducted by
INS officials in Cameroon–-officials who were not present to
testify and who were mainly recounting information from third
parties. Id. at 406-07. The Third Circuit held that the letter
had "absolutely no information about what the 'investigation'
consisted of, or how the investigation was conducted" and concluded
that for this and other reasons it was unfair to rely upon it. Id.
at 408.
In Ezeagwuna, where the story of persecution (if true)
was compelling, the reports of the INS field investigation that
claimed to establish fraud in the applicant's story were far less
solid than the German records in this case. Whether we would have
used precisely the same language as the Third Circuit is open to
doubt; but anyone who reads that case will see immediately how
different it is and how far the test of fundamental fairness turns
on the facts. See Felzcerek, 75 F.3d at 115. There is no conflict
in the result in our case and Ezeagwuna.
This brings us to the subject of the expertise of the INS
officer. His statement that he got the records from a German
official required no expertise; nor would it require very formal
expertise, but only general familiarity (which the officer had), to
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assert that the immigration records were of the kind kept by the
German authorities. The only statements requiring genuine
expertise were the INS officer's testimony that it would be very
hard to smuggle false records into German files and that such
German records were "unbelievably accurate."
Neither proposition comes as much of a surprise and both
statements were of limited importance in this case: the idea that
Yongo's records were smuggled into the files or inaccurate in their
contents is (in context of the other evidence) extremely far-
fetched. In any case, expertise is a matter of degree and while a
federal judge might disallow this testimony unless the INS officer
provided more groundwork for his opinion, the ALJ was not bound by
strict federal rules of evidence and the officer's opinion
testimony was marginal and did not implicate due process concerns.
Yongo's second and separate line of attack comes closer
to contesting the ALJ's decision on the merits but, sensibly
enough, is cast as a legal issue. The reason for this tactic is
that the ALJ, like any fact-finder who hears the witnesses, gets a
lot of deference on credibility judgments.5 Further, absent legal
error, the substantial evidence standard applies to the ultimate
5
We have said that if the ALJ chooses to reject a petitioner's
testimony as lacking credibility, he must "offer a specific, cogent
reason for [the IJ's] disbelief" with support in the record. El
Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (internal
citation and quotation marks omitted). One can imagine
exceptions–-e.g., claims highly improbable on their face–-but the
point is that deference is cabined.
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issue of whether petitioner has established a credible fear of
persecution, warranting reversal "only when the record evidence
would compel a reasonable factfinder to make a contrary
determination." Aguilar-Solis, 168 F.3d at 569.
Here, Yongo's basic claim is that the ALJ misinterpreted
an important INS precedent, itself bolstered by some case law in
the circuit courts, as to the significance of false statements or
use of false documents by an asylum seeker. The precedent is In re
O-D-, 21 I. & N. Dec. 1079 (BIA 1998), in which the asylum
applicant stated that he was fleeing persecution from Mauritania
and presented false documents to the INS to prove he was
Mauritanian. Id. at 1079-80. The Board offered a double comment
on the significance of the fraud.
As a general rule, the Board said that the applicant's
use of false documents "submitted to prove a central element of the
claim in an asylum adjudication indicates his lack of credibility
. . . [and] in the absence of an explanation regarding such
presentation, creates serious doubts regarding the respondent's
overall credibility." In re O-D-, 21 I. & N. Dec. at 1083.
However, O-D- also said that "there may be reasons, fully
consistent with the claim of asylum, that will cause a person to
possess false documents, such as the creation and use of a false
document to escape persecution by facilitating travel." Id.
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Focusing upon this latter qualification, Yongo says that
in this case the ALJ, who expressly relied on In re O-D-,
misunderstood the qualification. Yongo's position, in substance,
is two-fold: (1) that the Board does not think that a negative
inference as to overall credibility concerning persecution can be
drawn from a narrow lie, or use of a false document, to escape
persecution; and (2) that any dishonesty by Yongo shown in this
case falls within this category.
Both of the lessons of In re O-D- are, if not transmuted
into rigid rules, simply common sense. The dictum falsus in uno,
falsus in omnibus (false in one thing, false in everything) is a
longstanding but overstated precept, Black's Law Dictionary 1636
(7th ed. 1999). Obviously there are some lies that, because of
their circumstances and limited relationship to the main issue, do
relatively little to discredit other statements. A lie by a
fleeing victim to a tyrant's border guard is not the same as a lie
under oath in an INS proceeding about the circumstances of
persecution. See Akinmade v. INS, 196 F.3d 951, 956 (9th Cir.
1999). The case law recognizes this to be so.6
6
Compare, e.g., Bojorques-Villanueva, 194 F.3d 14, 16-17 (1st
Cir. 1999), de Leon-Barrios v. INS, 116 F.3d 391, 392-94 (9th Cir.
1997), and Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.
1991), with Singh v. Ashcroft, 301 F.3d 1109, 1113 (9th Cir. 2002),
Cordero-Trejo v. INS, 40 F.3d 482, 488 (1st Cir. 1994), and
Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir. 1986).
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The problem for Yongo is his second premise, namely, his
claim that his own deceptions fell into the category of those that
have no substantial bearing upon the main issue. Of course, the
idea of strict categories is itself mistaken; we are dealing with
several variables and matters of degree. The better way to view
the matter is that Yongo's deceptions were not merely ones that
facilitated his escape from Zaire but–-and these are two separate
points--were both more widespread and not all unrelated to his
central claim of persecution.
By the time he was through, Yongo had used a false name
and passport to enter the United States; had lied (or so the ALJ
could easily find) about never having been in Frankfurt, about
seeking asylum in Germany, and about having been in the Congo in
June 1996; and had spun a highly dubious tale (or so, again, the
ALJ could have thought) about the creation of false German records
by friends of his father–-a tale designed to explain away the
presence of the incriminating German records. This is quite a
package and two of the apparent falsehoods are far from merely
incidental.
Whether Yongo had previously sought asylum was arguably
pertinent to Yongo's ability to qualify for asylum under United
States law, 8 U.S.C. § 1158(b)(2)(A)(vi) (2000); 8 C.F.R. § 208.15
(2003), and Yongo's tale of having been in the Congo in June 1996
was part of a narrative that began with his alleged imprisonments
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and ended with his supposed escape and flight to Europe and then
America. Of course, Yongo's claims of persecution could still have
been true; but there is nothing surprising, let alone inconsistent
with any rule of law, in the ALJ's conclusion that Yongo could no
longer be trusted as to his central story.
On this appeal, we have considered sua sponte whether in
another respect the ALJ may have misread In re O-D- or–-and this is
the main point–-applied a credibility rule that we would regard as
irrational. In his formal decision the ALJ said that In re O-D-
provided "some guidance" as to how to assess the discrepancies
created by the German records. Specifically, the ALJ said:
The Board in that case concluded that
presentation of evidence that turned out to be
inaccurate has the effect of discrediting the
applicant's entire claim, and that in the
absence of an explanation or rebuttal, that
that indicates an overall lack of credibility
regarding the entire claim, and that
essentially is the same conclusion that I make
in this case.
If the ALJ read In re O-D- to require a fact-finder
automatically to discredit all of an applicant's testimony wherever
a lie was told, this would be a blatant misreading of In re O-D-
and an irrational rule to boot. But quite apart from the ALJ's own
reference to the possibility of "explanation or rebuttal," we think
that in context the ALJ was merely describing the evaluation made
in In re O-D- and that the ALJ then went on to make his own
evaluation about the significance of the discrepancies in this case
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for the rest of Yongo's story underpinning his claim of
persecution.
Thus, in his written decision the ALJ--after saying that
In re O-D- provided "some guidance"--continued by saying that, if
accepted at face value, Yongo's testimony about his treatment in
Zaire laid the basis for a good claim of asylum. The decision then
continued (emphasis supplied):
However, because of the fact that I do
not believe the respondent was credible
regarding the issue of when and how long he
stayed in Germany, whether or not he filed for
asylum in Germany, I do believe it discredits
some of the other evidence, and therefore, I
conclude as a matter of discretion that the
respondent does not warrant a grant of asylum,
and given the fact I don't believe he's
entitled to asylum, I therefore conclude he's
also not entitled to withholding.
In short, the ALJ made his own judgment, both about the
extent of Yongo's deceptions and their significance. Having
earlier put aside Yongo's use of a false passport as irrelevant,
the ALJ concluded in the formal decision that the more serious
deceptions about the stay in Germany and asylum application raised
sufficient doubts about "some of the other evidence"--obviously a
reference to the extent of persecution in Zaire--that the ALJ
believed that Yongo had not established his claim.
In asylum proceedings the burden is upon the applicant to
prove a legitimate fear of persecution. 8 C.F.R. § 208.13(a)
(2003). In many cases, almost all of the pertinent information is
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in the applicant's possession but this in turn makes the
applicant's credibility a matter of extreme importance. Where that
credibility has been seriously forfeit, the fact-finder may be left
in enough doubt about the balance of the testimony to conclude that
the applicant has not proved his case. We think that is what
happened here, noting once more that the issue is not one raised by
Yongo himself on this appeal.
Yongo's last independent claim, advanced by able amici,
is that the BIA's streamlined affirmance without opinion procedure,
8 C.F.R. § 1003.1(e)(4)(2003)(formerly 8 C.F.R. § 3.1(e)(4)),
violates tenets of administrative law. Although amici have
attempted to recast their argument in light of new case law, the
core of the argument was rejected by panels of this circuit in
Albathani, 318 F.3d at 377-79, and El Moraghy, 331 F.3d 195, 205
(1st Cir. 2003), which are binding on this panel. We also reject
amicis' argument that this case was not a proper candidate for
affirmance without opinion under the criteria set out in 8 C.F.R.
§ 1003.1(e)(4)(i) (2003)(formerly 8 C.F.R. § 3.1(e)(4)).
The petition for review is denied.
Concurrence follows.
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OBERDORFER, Senior District Judge, concurring. I am
concerned that the ALJ misconstrued In re O-D-, 21 I. & N. Dec.
1079(BIA 1998) to the extent that he suggested that any false
testimony, here the false statement about Germany, “has the effect
of discrediting the applicant’s entire claim.” I am satisfied,
however, that the ALJ on remand would again reach the same
conclusion upon review of the totality of the facts and
circumstances, including, but not limited to, the German matter, as
detailed in the majority’s recitation of the facts and analysis of
the law and the facts.
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