Anim v. Mukasey

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

DOROTHY ANIM, 
Petitioner,
v.
 No. 07-1373
MICHAEL B. MUKASEY, Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.

Argued: March 20, 2008

Decided: August 11, 2008

Before MICHAEL and MOTZ, Circuit Judges, and
Irene M. KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.

Petition for review granted; vacated and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Judge Motz and Judge
Keeley joined.

COUNSEL

ARGUED: Kim-Bun Thomas Li, Washington, D.C., for Petitioner.
Jem Colleen Sponzo, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney Gen-
eral, Civil Division, M. Jocelyn Lopez Wright, Assistant Director,
2 ANIM v. MUKASEY
Office of Immigration Litigation, Mona Maria Yousif, Civil Division,
Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.

OPINION

MICHAEL, Circuit Judge:

Dorothy Anim, a citizen of Cameroon, petitions for review of the
denial of her application for asylum and other relief. As part of her
case before the immigration judge (IJ), Anim submitted copies of
three convocations (summonses to appear) issued to her by the Cam-
eroon police shortly after she fled the country. The IJ denied Anim’s
application, relying mainly on a letter authored by a U.S. Department
of State official that reported, based on an overseas investigation, that
the convocations were fraudulent. The Board of Immigration Appeals
(BIA) affirmed the IJ’s decision. In her petition for review in this
court, Anim raises two claims relating to the overseas fraud investiga-
tion as described in the Department of State letter. First, Anim claims
that the letter establishes that her right to a confidential asylum appli-
cation was breached during the course of the overseas investigation,
in violation of 8 C.F.R. § 208.6. Second, Anim claims that the IJ’s
reliance on the letter, which lacks any meaningful indicia of reliabil-
ity, violated her right to due process. Concluding that Anim’s claims
are meritorious, we grant the petition for review, vacate the BIA’s
decision, and remand for further proceedings.

I.

In November 2003 Anim submitted an application for asylum and
withholding of removal under 8 U.S.C. § 1158(a)(1) and § 1231(b)(3)
and for relief under the Convention Against Torture (CAT), see 8
C.F.R. § 208.16(c). In support of her application Anim offered the
following evidence, much of it through her own testimony, at the
hearing before the IJ on January 30, 2004.

Anim is an Anglophone (English speaking) citizen of Cameroon.
Cameroon is ruled by a Francophone (French speaking) regime,
 ANIM v. MUKASEY 3
which reportedly discriminates against Anglophone citizens. In 2000,
after experiencing employment discrimination at her government job
because of her status as an Anglophone, Anim joined the Southern
Cameroons National Council (SCNC). SCNC is a non-governmental
organization established to represent Anglophones and advocate for
secession of Anglophone provinces of Cameroon. Anim’s relatives
and friends were already SCNC members, and shortly after joining
the organization, Anim was elected the publicity secretary of her local
branch.

On August 27, 2002, Cameroon’s largest opposition political party
(the Social Democratic Front), which shares many supporters with
SCNC, held a nonviolent demonstration. That evening Anim was
stopped by two plainclothes police officers while she was walking to
choir practice. When the officers asked Anim for identification, they
noticed her SCNC membership card and said, "these are the type of
people we are looking for." J.A. 214. The police then arrested her,
kicking and pushing her into their van. Anim was detained for five
hours and then released on the condition that she would cease any
opposition to the ruling party.

On October 29, 2002, Anim attended an SCNC-sponsored indepen-
dence celebration. After this event the government made mass arrests
of SCNC members and supporters. In connection with this roundup,
two plainclothes police officers entered the shop where Anim worked
part time and arrested her. Anim was detained at a police station for
five days. The morning after her arrest, the police beat the soles of her
feet for two hours. The police then forced her to stand, interrogated
her, and threatened to kill her and her family if she did not cease her
involvement with SCNC. Anim was then forced to jump and sing
songs praising the Cameroon government. This treatment was
repeated over the course of her detention. On the fifth day Anim
signed a document promising to end her involvement with SCNC; she
was then released with a warning that she would be imprisoned if she
resumed participation in SCNC activities.

Two months later, on December 20, 2002, Anim attended a demon-
stration held by the Human Rights Defense Group, another non-
governmental organization. That night, police officers entered Anim’s
house while she was sleeping and arrested her, her brother, and her
4 ANIM v. MUKASEY
sister. Anim was detained in prison for an indefinite term, and she
was beaten each day. After two months, on February 22, 2003,
Anim’s uncle bribed a police brigade commander to help her escape.
When Anim escaped, this police official told her uncle that she would
only be safe if she left Cameroon. Anim spent the next ten days in
hiding. Following the official’s advice, Anim’s uncle obtained a Cam-
eroon passport for her, and then, together with the official, took her
to the U.S. embassy, where she was issued a visa to enter the United
States. On March 3, 2003, after being escorted to the airport by her
uncle and the police official, Anim left Cameroon. Anim’s sister was
later served with three convocations, dated March 10, June 20, and
August 11, 2003, ordering Anim to appear at the police station.
Anim’s sister was also informed that a warrant had been issued for
Anim’s arrest.

Anim presented several documents in support of her claims. These
included her birth certificate, her Cameroon passport, pay stubs from
her full-time job in Cameroon, her visa, her SCNC membership card,
and copies of the three convocations, served on her sister, ordering
Anim to appear at the police station. Anim also presented affidavits
and letters from the following: her supervisor (Penn Jean Muluh) at
the Cameroon Ministry of Public Health, describing her work,
involvement with the SCNC, and imprisonment; her uncle, describing
Anim’s escape from prison and Cameroon; her parents and two broth-
ers, describing her arrests; the vice chairman of SCNC, describing the
group, Anim’s involvement, and her detentions; her sister and her
brother, mentioning her imprisonment; and her older sister, describing
police delivery to her of the convocations and their efforts to execute
the arrest warrant naming Anim. Anim’s documentary evidence also
included reports from the U.S. Department of State, Amnesty Interna-
tional, and the British Home Office, describing political repression
and torture in Cameroon.

At her hearing Anim also introduced an affidavit and testimony
from Victor T. Nchanji, who was Anim’s professor at the School of
Assistant Health Technicians in Limbe, Cameroon, from 1986 to
1988. Nchanji testified that he had heard about Anim’s persecution.
When questioned about the name of the person from whom he had
learned this information, Nchanji first gave one name, but after Anim
 ANIM v. MUKASEY 5
silently mouthed another name, Nchanji changed his testimony, giv-
ing another name.

At the end of the hearing the IJ expressed concerns about Anim’s
credibility, stemming largely from what the IJ characterized as
Anim’s "attempt to alter the testimony of a witness." J.A. 252. Never-
theless, the IJ suggested both a forensic evaluation and an overseas
investigation into the authenticity of Anim’s birth certificate, the con-
vocations, the notarization of the affidavits from Cameroon, and the
letter from Anim’s supervisor at the Ministry of Public Health. To ini-
tiate the investigation, the IJ asked the Department of Homeland
Security (DHS) counsel in Anim’s case to refer the documents to the
Department of State for overseas investigation and to the DHS foren-
sic document laboratory for analysis.1 See 8 C.F.R. §§ 208.6(b), .11.
The IJ explained his reason for suggesting an investigation as follows:
"The Department of State through the American Consulate is going
to attempt to confirm the truthfulness of these documents and they
will send an investigative report. And that report will determine
whether or not I believe your [Anim’s] documents, whether or not I
believe your case." J.A. 257. DHS counsel and Anim’s counsel orally
agreed to the investigation.

Thereafter, on July 20, 2004, DHS counsel received a report of
investigation (in letter form) regarding Anim’s case from Cynthia
Bunton, Director of the Office of Country Reports and Asylum
Affairs at the U.S. Department of State in Washington, D.C. (the Bun-
ton letter). The Bunton letter reported the following:

The U.S. Embassy in Yaounde was queried with regard to
the authenticity of documents presented and in connection
with verification of the employment of Penn Jean Muluh
[Anim’s supervisor at the Ministry of Public Health] and
Bong A. Divine [the notary].
1
DHS has been responsible for immigration enforcement since 2003.
Prior to 2003 this responsibility rested with the Immigration and Natural-
ization Service (INS) in the Department of Justice. For the sake of clar-
ity, we refer to the agency as DHS throughout this opinion.
6 ANIM v. MUKASEY
The Foreign Service National (FSN) fraud investigator con-
ducted the investigation. Neither the investigator nor the
people interviewed were aware that the questions pertained
to an asylum claim. The investigator is fluent in English,
French and the local dialect.

The following information was ascertained: Mr. Nkembong
Pius Tassay, Provincial Delegate of National Security for
the North West Province, said the three convocations did not
come from any police station in the northwest and were
therefore forgeries.

J.A. 142. The Bunton letter further reported that an employee of the
Delegation of Public Health had confirmed that a person named Penn
Jean Muluh was employed by that ministry and that a representative
of the Cameroon bar association had confirmed that Bong A. Divine,
the notary administering the oaths for affidavits submitted by Anim,
worked at the law firm indicated on the affidavits. In addition, the
DHS forensic document laboratory completed the forensic evaluation
on May 4, 2005. The report concluded that Anim’s birth certificate
was "consistent with genuine Cameroon birth certificates" and that the
laboratory’s examination of the remainder of the documents was
inconclusive. J.A. 131. The report noted that there was minor over-
writing on numerals in three documents, including one numeral in the
identification number of one of the convocations. DHS submitted
both the Bunton letter and the forensic report in opposition to Anim’s
claim. Anim did not object to the admission of the forensic report, but
she challenged the Bunton letter.

At a December 1, 2004, status hearing, the IJ informed Anim that
she had a right to rebut the Bunton letter’s conclusion that the convo-
cations were fraudulent, but noted that she would face criminal prose-
cution if he determined that her testimony was false. At the final
hearing, conducted on July 21, 2005, the IJ again explained the
importance of the document authenticity investigation to the issue of
Anim’s credibility: "I believe I’ve already announced on the record
that if this claim as it is written on paper and the documents are true
and there is no fabrication or false claim, this would be a qualifying
case." J.A. 284.
 ANIM v. MUKASEY 7
Anim objected to the admission of the Bunton letter on two
grounds: (1) the letter indicated a breach of Anim’s confidentiality
during the investigation and (2) it violated her due process rights by
failing to include sufficient information to establish its reliability. The
IJ overruled these objections and admitted the Bunton letter "because
the parties [had] agreed to this overseas investigation." J.A. 274.
However, after admitting the Bunton letter, the IJ remarked that
Anim’s objections might influence the weight he accorded the letter.
He then acknowledged that he was unable to ascertain whether
Anim’s confidentiality had been breached because the letter contained
insufficient information about how the investigation was conducted.
The IJ noted that the convocations had Anim’s name on them and that
the Bunton letter did not indicate "how those convocations were
shown" to any party in Cameroon who evaluated their authenticity.
J.A. 284. The IJ noted further that the letter did not explain "how [the
convocations] were validated or invalidated," that is, how the issue of
authenticity was weighed and determined. Id. The IJ then suggested
that counsel contact Bunton at the Department of State to seek infor-
mation about whether a breach of confidentiality occurred. Both par-
ties agreed to this inquiry; Anim noted, however, that the inquiry
could only resolve the confidentiality issue, but it would have no
bearing on the due process issue. In response the IJ said that he would
not allow inquiry into, or an evaluation of, "how [the Department of
State] . . . conduct[s] [its fraud] investigations." J.A. 290. Because
Anim would maintain her objection to the Bunton letter on due pro-
cess grounds regardless of the outcome of the inquiry, the IJ refused
to allow any inquiry to Bunton on the confidentiality issue, conclud-
ing that the inquiry would only delay the proceedings.

On September 23, 2005, the IJ issued his decision denying Anim
all relief. The IJ did not decide whether Anim’s confidentiality had
been breached or whether admission of the Bunton letter violated due
process. The IJ recognized Anim’s "concerns" with respect to these
issues, but remarked that her "concerns are overstated." J.A. 311.
However, in light of Anim’s arguments, the IJ "accord[ed] diminished
weight to the Department of State’s findings." Id. Anim appealed to
the BIA, and the BIA issued a per curium order, adopting the IJ’s
decision. In addition, the BIA rejected Anim’s argument that her con-
fidentiality was breached during the overseas investigation on the
ground that "[she] agreed to the . . . investigation." J.A. 359. The BIA
8 ANIM v. MUKASEY
also concluded, without discussion, that "[Amin’s] due process rights
were [not] violated." J.A. 360. Anim then petitioned this court for
review, again raising her breach of confidentiality and due process
claims.

II.

When, as in this instance, the BIA adopts and supplements the IJ’s
decision, "the factual findings and reasoning contained in both deci-
sions are subject to judicial review." Niang v. Gonzales, 492 F.3d
505, 511 n.8 (4th Cir. 2007); see also Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005) ("Where the BIA adopts the decision of the
IJ and merely supplements the IJ’s decision . . . we review the deci-
sion of the IJ as supplemented by the BIA."). We uphold the agency’s
decision "unless [it is] manifestly contrary to law." 8 U.S.C.
§ 1252(b)(4)(C). And agency findings of fact "are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary." Id. § 1252(b)(4)(B); see also Haoua v. Gonzales, 472 F.3d
227, 231 (4th Cir. 2007) (stating that "the BIA’s administrative find-
ings of fact [are reviewed] under the substantial evidence rule"). "We
also defer to credibility findings that are supported by substantial evi-
dence." Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). This
deference is broad but not absolute: an IJ "who rejects a witnesses’s
positive testimony because in his or her judgment it lacks credibility
should offer a specific, cogent reason for his [or her] disbelief." Id.
(quoting Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989)).

Anim petitions for review of the BIA’s denial of her claims for asy-
lum, withholding of removal, and relief under CAT. The Secretary of
Homeland Security or the Attorney General has the discretion to grant
asylum to a refugee under 8 U.S.C. § 1158(b). To establish refugee
status, an applicant must show that she is "unable or unwilling to
return" to her home country "because of persecution or a well-
founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42). If she shows that she has suffered past persecu-
tion, a presumption arises that she has a current well-founded fear of
persecution. Camara, 378 F.3d at 367 (citing 8 C.F.R.
§ 208.13(b)(1)). An applicant can demonstrate past persecution
through either her own testimony or independent evidence. Id. at 370.
 ANIM v. MUKASEY 9
If an adverse credibility determination is made with respect to the
applicant’s testimony, her independent evidence must still be consid-
ered. Id. If the applicant cannot show past persecution, she must prove
both that she is subjectively afraid of future persecution and that her
fear is objectively well founded before she can qualify for asylum. Id.
at 367.

If an applicant for withholding of removal establishes her claim,
"the Attorney General cannot remove her to her native country." Id.
A withholding of removal claim carries a more demanding standard
of proof than an asylum claim. Id. An applicant for withholding of
removal must establish that if she was sent back to her home country,
there is a clear probability that her "life or freedom would be threat-
ened . . . because of [her] race, religion, nationality, membership in
a particular social group, or political opinion." 8 U.S.C.
§ 1231(b)(3)(A); see INS v. Stevic, 467 U.S. 407, 430 (1984). An
applicant "who has failed to establish the less stringent ‘well-founded
fear’ standard of proof required for asylum relief is necessarily also
unable to establish an entitlement to withholding of removal." Abdel-
Rahman v. Gonzales, 493 F.3d 444, 449 (4th Cir. 2007).

Finally, to qualify for relief under CAT, an applicant must show
that it is "more likely than not that he or she would be tortured if
removed to the proposed country of removal." 8 C.F.R.
§ 208.16(c)(2). "Because there is no subjective component for grant-
ing relief under the CAT," the IJ must consider any independent evi-
dence that the applicant would be tortured, even if the IJ rejects the
applicant’s own testimony as not credible. Camara, 378 F.3d at 371.

III.

Amin first contends that the Department of State overseas investi-
gation in Cameroon violated her right to confidentiality under 8
C.F.R. § 208.6, entitling her to asylum, withholding of removal, and
relief under CAT. We agree that Anim has established that the inves-
tigation violated § 208.6, and we remand for the agency to determine
whether Anim is entitled to asylum or other relief based on the confi-
dentiality violation.

Section 208.6 provides that "[i]nformation contained in or pertain-
ing to any asylum application . . . shall not be disclosed without the
10 ANIM v. MUKASEY
written consent of the applicant." 8 C.F.R. § 208.6(a). As DHS recog-
nizes, the confidentiality regulations are of utmost importance in pro-
tecting asylum applicants because the "regulations safeguard
information that, if disclosed publicly, could subject the claimant to
retaliatory measures by government authorities or non-state actors in
the event that the claimant is repatriated, or endanger the security of
the claimant’s family members who may still be residing in the coun-
try of origin." J.A. 33 (U.S. Customs & Immigration Servs. Asylum
Div., U.S. Dep’t of Homeland Sec., Fact Sheet: Federal Regulations
Protecting the Confidentiality of Asylum Applicants (2005) [hereinaf-
ter Confidentiality Fact Sheet]). For these reasons, if an asylum appli-
cant’s confidentiality has been breached in violation of § 208.6, the
applicant must be given the opportunity to establish a new claim for
asylum, withholding of removal, or relief under CAT based on the
breach. See Abdel-Rahman, 493 F.3d at 454 (citing Lin v. U.S. Dep’t
of Justice, 459 F.3d 255, 267-68 (2d Cir. 2006)). In evaluating this
claim, the agency must consider whether the breach subjects the
applicant to a new risk of persecution or torture that is independent
of her original claim. Id. The applicant is entitled to relief for the con-
fidentiality violation only if she succeeds on this new claim. Id.

Anim claims that the overseas fraud investigator disclosed the con-
vocations to a Cameroon government official in violation of the regu-
lation. She bases her contention on the text of the Bunton letter, which
states: "Mr. Nkembong Pius Tassay, Provincial Delegate of National
Security for the North West Province, said the three convocations did
not come from any police station in the northwest and were therefore
forgeries." J.A. 142. Anim further relies on the letter’s statement that
"the investigator . . . [was not] aware that the questions pertained to
an asylum claim." Id. This statement contravenes the DHS’s guideline
that a fraudulent document report "contain . . . a statement that the
Service investigator is aware of the confidentiality provisions found
in 8 C.F.R. § 208.6," and it indicates that the investigator did not
know that he or she was required by regulation to protect Anim’s
identity. Memorandum from Bo Cooper, Gen. Counsel, INS, to Jef-
frey Weiss, Dir. of Int’l Affairs, INS, Confidentiality of Asylum
Applications and Overseas Verification of Documents and Applica-
tion Information 7 (June 21, 2001), available at http://
judiciary.house.gov/legacy/82238.pdf [hereinafter Cooper Memo].
Anim contends that the letter allows the reasonable inference that the
 ANIM v. MUKASEY 11
investigator showed the Cameroon official the convocations contain-
ing her name. Anim also contends that the disclosure of her name led
to a breach of her confidentiality in violation of § 208.6.

DHS puts forth three arguments in response, each of which we
reject. First, DHS argues that Anim’s confidentiality was not
breached because Anim’s lawyer orally agreed to the overseas inves-
tigation. The BIA explicitly adopted this argument in reviewing
Anim’s appeal. An agency’s interpretation of a regulation is not enti-
tled to deference where the regulation’s meaning is unambiguous. See
Christensen v. Harris County, 529 U.S. 576, 588 (2000). The plain
language of the regulation requires the "written consent" of the asy-
lum applicant before any information from her application can be dis-
closed. 8 C.F.R. § 208.6(a) (emphasis added). Thus, although the BIA
accepted oral consent as a valid waiver here, we may not defer to that
view in light of the clear language of the regulation. Under the plain
terms of the regulation, Anim’s verbal agreement to the investigation
can not be construed to constitute a waiver of § 206.8. See Lin, 459
F.3d at 267.

Second, DHS asserts that Anim’s claim of confidentiality breach
fails because the Bunton letter does not contain sufficient information
to establish that the convocations were shown to the Cameroon gov-
ernment official, thus disclosing her identity. We disagree. The cryp-
tic text of the letter and its failure to satisfy DHS’s detailed reporting
requirements (established to ensure compliance with the confidential-
ity regulation) support Anim’s position. The letter reports the Camer-
oon government official’s conclusory statement that "the three
convocations did not come from any police station in the northwest
[province of Cameroon] and were therefore forgeries." J.A. 142.
According to the DHS requirements for safeguarding confidentiality,
the reporting of this statement should have been accompanied by a
specific account of how the inquiry was made to the official and what
the inquiry entailed. Cooper Memo 6-7; see infra part IV. The Bunton
letter fails to provide these details about the inquiry made of the Cam-
eroon official. Nevertheless, the official’s unequivocal statement —
that the three convocations did not come from a police station in the
northwest — implies that the convocations had been shown to the
official. In addition, the letter states that the investigator was not told
that an asylum application was involved, and the letter fails to certify,
12 ANIM v. MUKASEY
again in violation of DHS requirements, see Cooper Memo 7, that the
investigator was aware of the confidentiality provisions of § 208.6.
The contents of the Bunton letter and its clear failure to adhere to
DHS requirements for reporting investigation procedure permit the
reasonable inference that the investigator showed the Cameroon offi-
cial the convocations with Anim’s name exposed. With this permissi-
ble inference demonstrated, the burden of producing evidence to the
contrary shifted to DHS. Specifically, the burden shifted to DHS to
produce evidence showing that Anim’s name was not revealed to the
official. DHS failed entirely to satisfy this burden, and this failure
compels the conclusion that Anim’s name was disclosed.

Third, DHS argues that even if the convocations with her name
revealed were shown to the Cameroon official, Anim’s claim fails
because she did not establish that the official was explicitly informed
that she was seeking asylum in the United States. As DHS concedes,
however, explicit disclosure of the fact that the applicant has applied
for asylum is not required for a violation of § 208.6. See Respondent’s
Br. 33 (stating that a violation occurs when "‘the information dis-
closed by the government was sufficient to give rise to a reasonable
inference that [the alien] had applied for asylum’" (quoting Lin, 459
F.3d at 264)). DHS has consistently interpreted § 208.6 to be violated

when information contained in or pertaining to an asylum
application . . . is disclosed to a third party in violation of
the regulations, and the unauthorized disclosure is of a
nature to allow the third party to link the identity of the
applicant to: (1) the fact that the applicant has applied for
asylum; (2) specific facts or allegations pertaining to the
individual asylum claim contained in an asylum application;
or (3) facts or allegations that are sufficient to give rise to
a reasonable inference that the applicant has applied for asy-
lum.

J.A. 33 (Confidentiality Fact Sheet); see also Cooper Memo 3; Lin,
459 F.3d at 263. Whether an applicant satisfies this objective test is
a matter of law, and our review of the issue is de novo. See Corovic
v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Averianova v. Mukasey,
509 F.3d 890, 899-900 (8th Cir. 2007); Lin, 459 F.3d at 264-65.
 ANIM v. MUKASEY 13
The disclosure of Anim’s unredacted convocations to the Camer-
oon official would allow the official to reasonably infer that Anim
had applied for asylum, thus satisfying the test for a breach of confi-
dentiality. The convocations "were the type of document . . . that evi-
dences events commonly known to form the basis of asylum claims
in the United States" — in this case official police documents target-
ing an individual for political activity in opposition to the govern-
ment. Cooper Memo 4. The disclosure of this sort of document can
"give rise to an especially strong inference that the identified alien is
applying for asylum." Lin, 459 F.3d at 265 (citing Cooper Memo 4).
Thus, the disclosure of the convocations enabled the Cameroon offi-
cial to link Anim’s identity to "facts or allegations that are sufficient
to give rise to a reasonable inference that [she] applied for asylum,"
that is, the fact or allegation that she was targeted by the police for
her political activity. J.A. 33 (Confidentiality Fact Sheet). Further, the
circumstances surrounding the disclosure (the "nature" of the disclo-
sure, id.) support this link. The possession of the convocations by an
investigator associated with the U.S. Embassy — an investigator
attempting to ascertain their authenticity — supports the inference
that Anim was in contact with the U.S. government. See Lin, 459 F.2d
at 265; Cooper Memo 4. Under all of these facts, Anim has satisfied
the DHS test for a violation of § 208.6.2

Anim has thus established that her right to confidentiality under 8
C.F.R. § 208.6 was violated. Anim next argues that she is entitled to
asylum or other relief because she has a new fear of persecution based
on the Cameroon government’s inference that she applied for asylum.
Because the IJ and the BIA did not allow Anim to pursue this relief,
we remand. Anim must be given the opportunity on remand to present
her new claims for asylum, withholding of removal, and relief under
CAT based on the alleged consequences of the breach.3
2
A number of options are available for DHS to investigate the authen-
ticity of asylum documents while protecting the applicant’s rights under
§ 208.6. See Lin, 459 F.3d at 266-67 (explaining that the investigator can
redact information that would identify the applicant, obtain a written
waiver from the applicant, or apply to the Attorney General for a waiver
of the confidentiality provision, among other options).
3
As we explain below, the Bunton letter may not be given weight dur-
ing the consideration of Anim’s new claims because it lacks sufficient
indicia of reliability to satisfy the requirements of due process. See infra
part IV. Anim may introduce the convocations to the extent they are rele-
vant.
14 ANIM v. MUKASEY
IV.

Anim also argues that the IJ’s consideration of the Bunton letter
violated her constitutional right to due process. The IJ’s decision to
deny relief must therefore be vacated, according to Anim. For the rea-
sons that follow, we agree.

A.

The Federal Rules of Evidence do not apply in immigration pro-
ceedings, and evidentiary determinations are limited only by due pro-
cess considerations. Alexandrov v. Gonzales, 442 F.3d 395, 404 (6th
Cir. 2006); see Rusu v. INS, 296 F.3d 316, 320, 321 n.8 (4th Cir.
2002). To succeed on a due process claim in an asylum or deportation
proceeding, the alien must establish two closely linked elements: (1)
that a defect in the proceeding rendered it fundamentally unfair and
(2) that the defect prejudiced the outcome of the case. See Rusu, 296
F.3d at 320-22, 324. These two elements are aimed at the same con-
cern — the fairness of the proceeding. The first element requires con-
sideration of whether, prospectively, a particular defect could
undermine a proceeding. When the admission of evidence is chal-
lenged, this element requires that "‘the evidence is probative and its
use is fundamentally fair.’" Ezeagwuna v. Ashcroft, 325 F.3d 396, 405
(3d Cir. 2003) (quoting Bustos-Torres v. INS, 898 F.2d 1053, 1055
(5th Cir. 1990)). In this context "‘fairness is closely related to the reli-
ability and trustworthiness of the evidence.’" Ezeagwuna, 325 F.3d at
405 (quoting Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996)). The
second element, on the other hand, requires consideration of whether
the defect, in retrospect in a specific case, was "‘likely to impact the
results of the proceedings.’" Rusu, 296 F.3d at 320-21 (quoting
Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000)). Thus, consider-
ation of the challenged evidence would have to prejudice the IJ’s final
decision in the petitioner’s case before she could succeed on her due
process claim.

B.

Anim argues that consideration of the Bunton letter was fundamen-
tally unfair. We therefore review the letter to determine whether it
contains sufficient indicia of reliability and trustworthiness to support
 ANIM v. MUKASEY 15
its use. See Alexandrov, 442 F.3d 395 (holding that consideration of
an overseas fraud investigation report violated due process because
the report was insufficiently reliable); Ezeagwuna, 325 F.3d at 405-08
(same); see also Lin, 459 F.3d at 269 (holding that an overseas fraud
investigation report was insufficiently reliable "to satisfy the substan-
tial evidence requirement"). We conclude that the Bunton letter con-
tains insufficient indicia of reliability and, as a result, its use was
fundamentally unfair.

First, the Bunton letter (or report) is comprised entirely of multiple
hearsay statements. Although hearsay is admissible in immigration
proceedings, "[h]ighly unreliable hearsay might raise due process
problems." Alexandrov, 442 F.3d at 405 (quoting Yongo v. INS, 355
F.3d 27, 31 (1st Cir. 2004)). Multiple hearsay, where the declarant is
steps removed from the original speaker, is particularly problematic
because the declarant in all likelihood has been unable to evaluate the
trustworthiness of the original speaker. See Ezeagwuna, 325 F.3d at
406. Because officials of certain foreign governments "have powerful
incentives to be less than candid on the subject of their government’s
persecution of political dissidents," Lin, 459 F.3d at 269-70, concerns
about a report’s reliability are amplified when the "report was pre-
pared with the assistance of someone from the government from
which [the applicant] is fleeing," Alexandrov, 442 F.3d at 405 n.7
(internal quotation marks omitted).

The Bunton letter is authored by Cynthia Bunton, a Department of
State official located in Washington. The letter does not explain how
Bunton received the information she relates, nor does the letter dis-
close the identities of some of the individuals in the chain of commu-
nication. At least four individuals were in this chain: Nkembong Pius
Tassay, the North West Province, Cameroon, government official; the
unnamed foreign service national fraud investigator; unnamed indi-
viduals located at the U.S. Embassy in Yaounde, Cameroon; and Cyn-
thia Bunton in Washington. The letter indicates that Bunton did not
communicate directly with Tassay (the original declarant), and thus
she was unable to evaluate his trustworthiness. She was similarly
unlikely to have been able to evaluate the trustworthiness of the inter-
vening hearsay proponents of Tassay’s statements. In fact, it is likely
that several individuals in this chain were "far removed from the evi-
dence" — Tassay’s statement — "sought to be introduced." Ezeag-
16 ANIM v. MUKASEY
wuna, 325 F.3d at 406. The multiple hearsay is particularly
troublesome here because Tassay’s statement that the convocations
were forgeries has a significant risk of having been improperly influ-
enced by his self-interest as an official of the Cameroon government.
Thus, the extended chain of (mostly unidentified) hearsay declarants
in the Bunton letter raises doubts about the letter’s reliability, espe-
cially in light of the original speaker’s self-interest.

Second, the Bunton letter provides markedly insufficient informa-
tion about how the investigation into the authenticity of the convoca-
tions was conducted. This missing information is essential for two
reasons. "The manner of eliciting [the] information is crucial to [the
Bunton letter’s] probative value." Ezeagwuna, 325 F.3d at 408. With-
out 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 con-
clusions. See Lin, 459 F.3d at 270. In addition, documentary evidence
— especially evidence that is particularly damning to an applicant’s
case — should be sufficiently clear and complete to give the applicant
an opportunity to meaningfully rebut its allegations. See Alexandrov,
442 F.3d at 406. Indeed, DHS recognizes that the content and quality
of an investigative report, like the Bunton letter, "can determine the
report’s admissibility as evidence and, if admitted, the weight the
immigation judge will accord to it." Cooper Memo 6. Because of the
importance of providing detailed reports, the agency has instructed
that a fraud report "must contain[ ] at a minimum" nine categories of
information, including "the name and title of the investigator," the
investigator’s qualifications, "the location(s) of any [investigative]
conversations or other searches conducted," "the method used to ver-
ify the information," and "the circumstances, content and results of
each relevant conversation or search[ ]." Id. at 6-7; see Lin, 459 F.3d
at 270-72.

The Bunton letter does not meet even the minimum standards pre-
scribed by DHS, and it lacks the clarity and content necessary to pro-
vide fair or probative evidence in an immigration proceeding. The
letter does not reveal the identity of the fraud investigator. It does not
contain information about the anonymous investigator’s qualifications
(other than language ability). And it is silent about the methods that
the investigator used and the circumstances of the inquiries that were
made. The letter simply reports: "The following information was
 ANIM v. MUKASEY 17
ascertained: Mr. Nkembong Pius Tassay, Provincial Delegate of
National Security for the North West Province, said the three convo-
cations did not come from any police station in the northwest and
were therefore forgeries." J.A. 142. This statement gives us no infor-
mation about the circumstances or manner in which Tassay was
approached or questioned, the basis for his conclusion, or why he was
in a position to give a conclusive answer as to whether the convoca-
tions are authentic. Furthermore, the letter does not explain whether
(or how) the investigator attempted to verify Tassay’s conclusions.
Nor does the letter explain whether the investigator had reason to
believe that Tassay would be trustworthy in rendering his conclusion.
In short, the letter’s lack of information about the investigator, how
the investigation was conducted, and how and why the official
reached his forgery conclusion make it practically impossible to
assess the letter’s reliability.

Finally, the IJ appeared to rely upon the general prestige and com-
petence of the Department of State in determining that the Bunton let-
ter was sufficiently reliable to be considered. When Anim argued that
the letter should be excluded because it violated her due process
rights, the IJ responded, "I don’t think we can presume to impose
upon the Department of State’s fraud unit on how they do their —
conduct their investigations." J.A. 290. General deference to the
Department of State cannot substitute for an adequate evaluation of
the reliability of a document, especially when the document — as is
the case with the Bunton letter — provides practically no information
upon which a reliablity determination can be made. See Ezeagwuna,
325 F.3d at 407.

Because the Bunton letter is comprised of multiple hearsay and
lacks sufficient verifying information, there was no basis for the IJ to
determine that the letter was reliable. The letter was not probative and
its use was fundamentally unfair to Anim. We therefore hold that the
IJ’s consideration of the Bunton letter violated Anim’s right to a fun-
damentally fair proceeding, satisfying the first element of a due pro-
cess violation.

C.

Anim argues that the improper consideration of the Bunton letter
prejudiced the result of her proceeding. Because the IJ’s decision to
18 ANIM v. MUKASEY
deny relief turned on his finding that Anim submitted fraudulent doc-
uments, and this finding cannot be sustained without reliance on the
Bunton letter, we agree.

At Anim’s initial hearing the IJ expressed serious concern about
her credibility, a concern that was based largely on her interference
with her witness’s testimony. The IJ explained, however, that the doc-
uments she submitted would outweigh this concern in his final evalu-
ation of the case, if the documents were verified. The results of the
fraud investigation, he informed Anim, "will determine whether or
not I believe your documents, whether or not I believe your case."
J.A. 257. After the Bunton letter was received, the IJ reiterated that
the fraud investigation would determine the outcome of the case: "I
believe I’ve already announced on the record that if this claim as it
is written on paper and the documents are true and there is no fabrica-
tion or false claim, this would be a qualifying case." J.A. 284. In his
written opinion the IJ reemphasized his decision to give the docu-
ments controlling weight:

[S]ome of Respondent’s documents appear to be fraudulent,
further undermining the credibility of her claim. See Gov-
ernment’s Exhibits B & C [Bunton letter and forensic
report]. The presentation of fraudulent documents is a criti-
cal factor in the Court’s analysis of the alien’s credibility.
Introduction of fraudulent documents, in the absence of
explanation, regarding such presentation, creates serious
doubts regarding the respondent’s overall credibility, and
diminishes the reliability of other evidence.

J.A. 311 (emphasis added) (internal citations omitted).

The IJ ultimately concluded that Anim’s testimony that she had
been subjected to past persecution was not credible. As a result of the
adverse credibility finding, the IJ noted that Anim could still prevail
if her documentary evidence supported her claims independently of
her testimony. See Camara, 378 F.3d at 369-72. Concluding that the
convocations were fraudulent and that Anim’s other documents
describing the possibility of future persecution were "unsubstantiated
and dubious in light of the questionable authenticity" of the convoca-
tions, J.A. 313, the IJ found that Anim was unable to provide suffi-
 ANIM v. MUKASEY 19
cient documentary support for her claims. Specifically, in denying
Anim’s claims for asylum and withholding, the IJ explained:

[E]ven if [Anim] does subjectively fear returning to Camer-
oon, she has not provided sufficient evidence to conclude
that her fear of country-wide persecution in Cameroon is
objectively reasonable.

Indeed, there is no credible, objective evidence in the
record which indicates that [Anim] would face even a
remote chance of persecution if she were returned to Camer-
oon. The convocations that purport to show the Cameroo-
nian government is still looking for [Anim] appear to be
fraudulent, and none of her other documentary evidence is
either probative or credible enough to establish that she has
a prospective well-founded fear of persecution on account of
her activities with the SCNC.

J.A. 317. The IJ used similar reasoning to support his decision to deny
relief under CAT. According to the IJ, Anim "presented no credible
evidence to indicate that she would be at risk of torture if she were
to return to Cameroon. Moreover, [Anim] has provided no credible
evidence to suggest that the Cameroonian government retains an
interest in her since she left the country." J.A. 318. We read the IJ’s
opinion to rely on his finding that Anim’s documents were fraudulent,
a reading that is based on the IJ’s repeated, deliberate statements on
the record that the case hinged on the issue of the documents’ authen-
ticity.

We therefore consider whether substantial evidence would support
the IJ’s finding that the documents were fraudulent, with the Bunton
letter excluded from consideration. In concluding that Anim submit-
ted fraudulent documentation, the IJ first relied on the Bunton letter.
But the Bunton letter cannot be used to support the finding of fraud,
as we have indicated. Noting Anim’s concerns about the letter (but
believing them to be "overstated"), the IJ then made three additional
observations that, he said, independently supported his conclusion.
J.A. 311. First, he found that the report from the DHS forensic docu-
ment laboratory "raises serious questions about the authenticity of the
convocations based on the overwriting on them." J.A. 312. The foren-
20 ANIM v. MUKASEY
sic report does not support the IJ’s interpretation. As DHS concedes,
the report explains that the results of the forensic evaluation were
inconclusive as to the authenticity of the documents. With respect to
the convocations, the report finds only one instance of overwriting on
one numeral on one convocation, on that document’s handwritten
identification number. This simple notation in the report cannot be
said to raise "serious questions" about this particular convocation,
much less about all of the convocations. The IJ’s reliance on the
forensic report is thus misplaced.

Second, the IJ (through his own analysis) noted inconsistent meth-
ods among the convocations with respect to the handwriting of the
numeral "1" and dating of the documents. Significantly, the forensic
laboratory, which is trained in detecting signs of fraud, did not find
these inconsistencies notable. Furthermore, these minor inconsisten-
cies are likely attributable to different subordinates preparing the con-
vocations for the police commissioner’s signature. The IJ’s
independent examination of the convocations thus provides little sup-
port for his finding of fraud.

Finally, the IJ found that "the information on the convocations is
inconsistent with information in an affidavit submitted by [Anim’s]
sister, who was the alleged recipient of the convocations." J.A. 312.
Anim’s sister reported that the convocations were served on her in
March, June, and August of 2003, the same months indicated on the
convocations. She further correctly reported that the March convoca-
tion summoned Anim to appear on March 12 and that the June convo-
cation was served on June 20, the day the convocation was dated.
However, two of the exact dates reported by Anim’s sister did not
match the dates written on the convocations (she reported March 20
and August 1, while the convocations were dated March 10 and
August 11). A possible mistake of a few days in the sister’s recall of
such a minor detail, especially given the correct details she did report,
cannot provide substantial evidence that the convocations are fraudu-
lent. Thus, in the absence of the Bunton letter, the IJ’s conclusion that
the convocations are fraudulent is not supported by substantial evi-
dence.

We turn finally to whether the IJ’s finding of fraud impacted the
proceedings in a way that prejudice resulted. As the IJ recognized, for
 ANIM v. MUKASEY 21
Anim to succeed in her claims for asylum or withholding, she was
required to show a well-founded fear of future persecution. Anim
could carry her burden by either (1) proving that she was subjected
to past persecution, thereby establishing a presumption of future per-
secution or (2) proving directly that she subjectively fears future per-
secution and that her fear is objectively reasonable. See Camara, 378
F.3d at 367. Because "the subjective element cannot generally be
proved other than through the applicant’s testimony," an adverse
credibility finding regarding testimony about fear of future persecu-
tion will likely defeat a claim unless the applicant introduces indepen-
dent evidence of past persecution. Id. at 369.

Here, the IJ found that Anim’s testimony regarding her past perse-
cution was not credible. This decision was based on several reasons
(including interference with a witness’s testimony) in addition to the
finding that the convocations were fraudulent. We will assume that
the credibility determination was supported by substantial evidence.
Nonetheless, it is likely that the IJ would have reached a different out-
come if he had given due consideration to the independent evidence
that he discounted because of the finding of fraud.

In evaluating Anim’s claims for asylum and withholding, the IJ did
not decide whether Anim’s testimony about her future fear of perse-
cution was credible, stating "even if [Anim] does subjectively fear
returning to Cameroon, she has not provided sufficient evidence to
conclude that her fear of country-wide persecution in Cameroon is
objectively reasonable." J.A. 317. If the IJ found that Anim credibly
testified to her subjective fear of future persecution, Anim only would
be required to show that this fear was objectively reasonable. At the
hearing, the IJ rejected Anim’s evidence of future persecution due to
his finding of document fraud. Properly considered, however, the
rejected evidence could provide the necessary objective support. The
convocations, summoning Anim because of her escape from impris-
onment for her political activities, provide objective evidence that
Anim would face persecution upon her return to Cameroon. This evi-
dence that she could face persecution is corroborated by the letters,
affidavits, and reports that Anim submitted, but that the IJ discounted
in light of the finding of fraud.

On the other hand, if the IJ ultimately found that Anim’s testimony
about her fear was not credible, Anim could prove her claim through
22 ANIM v. MUKASEY
independent evidence of past persecution, which would establish a
presumption of future persecution without credible testimony from
Anim. Here too the IJ rejected the evidence offered by Anim because
of his finding of fraud. Properly considered, however, the convoca-
tions, which were issued as the result of Anim’s escape from her pre-
vious imprisonment and torture for her political activities, along with
the sworn accounts of her family members and associates, could pro-
vide sufficient independent evidence of past persecution to support
her claims for asylum or withholding.

In addition, "[b]ecause there is no subjective component for grant-
ing relief under the CAT, the adverse credibility determination . . .
would not necessarily defeat [Anim’s] CAT claim." Camara, 378
F.3d at 371. Under CAT Anim was required to present evidence that
it was "more likely than not that . . . she would be tortured" if
removed to Cameroon. 8 C.F.R. § 208.16(c)(2). The IJ rejected
Anim’s claim under CAT because he concluded — again, based on
his finding of fraud — that she had "provided no credible evidence
to suggest that the Cameroonian government retains an interest in
[Anim] since she left the country." J.A. 318. As a result, Anim was
unable to demonstrate that she risked torture upon her return. The IJ’s
denial of CAT relief cannot stand because the convocations and other
discounted documents could provide objective evidence that the Cam-
eroon government retains an interest in Anim and that she could face
torture if she was forced to return to Cameroon.

Because the IJ repeatedly explained that his denial of relief turned
on his finding that Anim’s documents were not authentic, we con-
clude that improper consideration of the Bunton letter and the result-
ing finding of fraud prejudiced the outcome in this case. Anim has
thus demonstrated a violation of her right to due process. We there-
fore vacate the decision and remand for reconsideration of Anim’s
original claims for asylum, withholding of removal, and relief under
CAT. On remand, appropriate consideration must be given to Anim’s
independent documentary evidence, including the convocations. It
will, of course, be left to the IJ to weigh the evidence and make the
ultimate factual determinations.4
4
Even though we conclude that a remand is required, we acknowledge
the IJ’s deliberate and conscientious consideration of Anim’s case.
 ANIM v. MUKASEY 23
V.

We grant Anim’s petition for review and vacate the BIA’s deci-
sion. Anim has carried her burden of showing that her confidentiality
was breached during the overseas investigation, in violation of 8
C.F.R. § 208.6. We remand for a determination as to whether Anim
can establish new claims as the result of the violation of her right to
confidentiality. In addition, the use of the Bunton letter, which pro-
vided the basis for the IJ’s determination that Anim’s documents were
fraudulent, violated Anim’s right to due process. Because the IJ’s
finding of fraud was pivotal to his decision to deny Anim relief on her
original claims, we also remand for the reconsideration of Anim’s
original claims.

PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED