Angov v. Holder

• Decision Date: 04 December 2013
• Docket Number: No. 07–74963.,07–74963.
• Citation: 736 F.3d 1263
• Parties: Nikolay Ivanov ANGOV, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

736 F.3d 1263

Nikolay Ivanov ANGOV, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07–74963.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2012.

Filed Dec. 4, 2013.

Nicolette Glazer (argued), Law Offices of Larry R. Glazer, Century City, CA, for Petitioner.

Gregory G. Katsas, Assistant Attorney General, Barry J. Pettinato, Assistant Director, Jesse Lloyd Busen (argued) and Charles E. Canter, Attorneys, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096–227–355.

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

OPINION

KOZINSKI, Chief Judge:

Five other circuits have held that an immigration judge violates due process or the immigration laws by relying on a State Department investigation of an asylum petitioner's claim. Do we fall in line?

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 IJ allowed the government to obtain a State Department investigation of Angov's allegations. See8 C.F.R. § 208.11. The investigation was conducted by our consulate in Sofia, and the results were summarized in a letter signed by Cynthia Bunton, Director of Department of State's Office of Country Reports and Asylum Affairs.

The IJ admitted the Bunton Letter, which stated that the Embassy had contacted “an official in the Archive Department at the 5th Police District in Sofia.” The official found a number of errors in the subpoenas, suggesting that they were forgeries: (1) Three officers named in the subpoena—Captain Donkov, Lieutenant Slavkov and Investigator Vutov—never worked for the police department; (2) the case and telephone numbers were wrong; and, (3) although the subpoenas mentioned room 4 on the second floor of the department and room 5 on the first floor, there are no rooms by those numbers. The official also explained (4) that the seal on the subpoena was too small.

Bunton also stated that the embassy investigator (5) was unable to locate Angov's claimed past residences; and (6) that the neighborhood where Angov lived was only twenty to thirty percent Roma, where Angov claimed that he lived in a “gypsy neighborhood.” Attached to the letter were five photographs of the places the investigator had visited while trying to verify the addresses.

Angov's industrious lawyer submitted a plethora of rebuttal evidence, including photos, maps, an article about Angov's neighborhood and a letter apparently signed by someone named Daniela Mihaylova, who identified herself as the legal programs director of a Roma human rights organization in Bulgaria. Angov also argued that, without the opportunity to cross-examine the investigator, the admission of the Bunton Letter would violate his statutory and constitutional rights.

In response to Angov's objection, the government attorney asked the State Departmentto produce an employee to testify about the investigation. State responded with a letter authored by Nadia Tongour, Bunton's successor. The Tongour Letter provided some general background information on State's investigation procedures, but explained that it's State's policy to refrain from providing further specific information about an overseas investigation.

Based on the Bunton Letter, the IJ made an adverse credibility finding and denied Angov's applications for asylum, withholding of removal and relief under the Convention Against Torture. The BIA adopted and affirmed the IJ's ruling denying relief, and his determination that the subpoenas are fraudulent. The BIA also denied Angov's motion to supplement the record with a recent Sixth Circuit opinion that Angov claimed constituted new evidence of a “pattern and practice” of law-breaking by officials in the Sofia consulate. See Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir.2006).

II. ANALYSISA. 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. More, we disagree with Alexandrov, see infra p. 1268, and see no point in remanding for the BIA to apply the teachings of a case we believe is flat wrong.

B. Admission of the Bunton Letter

Angov claims that the admission of, and the IJ's and BIA's reliance on, the Bunton Letter violated his statutory and constitutional rights. See8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.10(a)(4); Cinapian v. Holder, 567 F.3d 1067, 1074–75 (9th Cir.2009). In considering Angov's argument, we review the IJ's decision, except for the portion that the BIA didn't clearly adopt—here, the IJ's conclusion that the Department of State's inability to verify Angov's addresses supported an adverse credibility finding. See Joseph v. Holder, 600 F.3d 1235, 1239–40 (9th Cir.2010). On that issue, we review the BIA's decision.

While we review constitutional and statutory questions de novo, “[t]he BIA's interpretation and application of the immigration laws are generally entitled to deference.” Hernandez–Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir.2011); Zetino v. Holder, 622 F.3d 1007, 1011–12 (9th Cir.2010). The agency's factual findings—such as its adverse credibility determination—are reviewed for substantial evidence and can be reversed only if the evidence “compels” a contrary conclusion. See Rizk v. Holder, 629 F.3d 1083, 1087–88 (9th Cir.2011) (emphasis omitted).

Angov's statutory arguments can be quickly dispatched. He claims that he was denied his right to examine evidence against him. See8 U.S.C. § 1229a(b)(4)(B). The record tells a different story: He was allowed to examine the Bunton Letter, and given ample time to produce substantial evidence to rebut it. See supra pp. 1266–67; cf. Cinapian, 567 F.3d at 1076 (had the government given petitioners a chance to examine forensic reports before hearing, they may have been able to produce rebuttal evidence).

Angov also argues that he was denied his statutory right to cross-examine the witnesses against him. We've held that, before hearsay statements made by an absent witness can be admitted into an immigration hearing, “ ‘the government must make a reasonable effort ... to afford the alien a reasonable opportunity to confront the witnesses against him or her.’ ” Hernandez–Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir.2005) (quoting Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir.1997)); see also§ 1229a(b)(4)(B); Cinapian, 567 F.3d at 1076–77. The government here did make a reasonable effort to obtain a witness from the Department of State, but was prevented from doing so by State's policy of not releasing follow-up information regarding its overseas investigations. It is entirely reasonable for the government not to bring a hearsay declarant from overseas to appear at an immigration hearing in the United States.

Angov also argues that admission of the Bunton Letter, and the IJ's and BIA's reliance on it, violates due process because the letter didn't provide enough information to evaluate its reliability and trustworthiness. We see little merit in this argument but, surprisingly, five of our sister circuits disagree. Four have held that the Constitution prohibits the IJ and BIA from relying on consular letters like the Bunton Letter. See Banat v. Holder, 557 F.3d 886, 892–93 (8th Cir.2009); Anim v. Mukasey, 535 F.3d 243, 256–58 (4th Cir.2008); Alexandrov, 442 F.3d at 407;Ezeagwuna v. Ashcroft, 325 F.3d 396, 405–08 (3d Cir.2003). A fifth reached the same conclusion on statutory grounds. See Lin v. U.S. Dep't of Justice, 459 F.3d 255, 269 (2d Cir.2006) (because consular report was unreliable, agency decision that relied on it wasn't based on “substantial evidence”). Consequently, we offer a thorough explanation for parting company with our colleagues elsewhere.

The IJ found that Nikolay Angov presented forged documents. This is a serious matter that, if true, should not merely result in the immediate termination of Angov's asylum petition, but also in criminal prosecution for immigration fraud. But the IJ and the BIA weren't fazed by discovery of the fraud; they went on to decide whether Angov's asylum claim could be sustained despite the forgeries. No other adjudicator in the United States would react with such...