Angov v. Lynch

• Decision Date: 04 December 2013
• Docket Number: No. 07–74963.,07–74963.
• Citation: 788 F.3d 893
• Parties: Nikolay Ivanov ANGOV, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

788 F.3d 893

Nikolay Ivanov ANGOV, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 07–74963.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2012.

Filed Dec. 4, 2013.

Amended June 8, 2015.

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: SIDNEY R. THOMAS, Chief Judge, ALEX KOZINSKI and STEPHEN S. TROTT, Circuit Judges.

Opinion by Judge KOZINSKI

; Dissent by Chief Judge THOMAS.

ORDER

The opinion and dissent filed on December 4, 2013, and published at 736 F.3d 1263, are hereby withdrawn and replaced by the amended opinion and dissent filed concurrently with this order. With these amendments, Judges Kozinski and Trott have voted to deny the petition for panel rehearing, Judge Kozinski has voted to deny the petition for rehearing en banc and Judge Trott has so recommended. Chief Judge Thomas has voted to grant the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petitions for panel rehearing and rehearing en banc are denied. No further petitions for panel rehearing or rehearing en banc will be entertained.

OPINION

KOZINSKI, Circuit Judge:

Does an immigration judge err by relying on a State Department investigation of an asylum petitioner's claim?

I. BACKGROUND

Nikolay Angov, a Bulgarian citizen, claims he was persecuted by the Bulgarian government because he is Roma.¹ 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 immigration judge (“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, though 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 Board of Immigration Appeals (“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).

II. ANALYSIS

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.² The BIA did not abuse its discretion in denying Angov's motion to remand.

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 legal 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).

(i) Due Process

Angov claims that the IJ's reliance on the Bunton Letter violated his constitutional right to procedural due process. But Angov has no such right. He is an alien who has never formally entered the United States. He presented himself at the San Ysidro port of entry without valid entry documents and sought asylum. “[A]n alien seeking admission has not ‘entered’ the United States, even if [he] is in fact physically present.” Kwai Fun Wong v. United States, 373 F.3d 952, 971 (9th Cir.2004). “[O]ur immigration laws have long made a distinction between those aliens who have come to our shores seeking admission ... and those who are within the United States after an entry.” Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). Aliens “who have once passed through our gates, even illegally,” are afforded the full panoply of procedural due process protections, and “may be expelled only after proceedings conforming to traditional standards of fairness.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953). But those, like Angov, who have never technically “entered” the United States have no such rights. Id. For Angov, procedural due process is simply “[w]hatever the procedure authorized by Congress” happens to be. Id. (internal quotation marks omitted); see also Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (“[A]n alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application....”).

Angov's claim of a procedural due process violation simply can't be squared with the Supreme Court's teachings in Mezei and Landon, nor with our circuit's settled precedent. See Barrera–Echavarria v. Rison, 44 F.3d 1441, 1449 (9th Cir.1995) (“[E]xcludable aliens have no procedural due process rights in the admission process....”).³

(ii) Statutory Rights

Angov's challenge to the admission of the Bunton Letter is therefore purely statutory. In assessing such a challenge, we must first ask whether the IJ made legal error by denying Angov any of his statutory rights. Angov claims that he was denied his right to examine...