Corovic v. Mukasey

• Decision Date: 07 March 2008
• Docket Number: Docket No. 07-0156-ag.
• Citation: 519 F.3d 90
• Parties: Safet COROVIC, Vesmina Corovic, Ilda Corovic, Petitioners, v. Michael B. MUKASEY, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

519 F.3d 90

Safet COROVIC, Vesmina Corovic, Ilda Corovic, Petitioners, v. Michael B. MUKASEY, Attorney General,^* Respondent.

Docket No. 07-0156-ag.

United States Court of Appeals, Second Circuit.

Argued: November 6, 2007.

Decided: March 7, 2008.

Henry F. Minnerop, (Martin E. Gold, Brenda F. Szydlo, Kimberly V. Allman, on the brief), Sidley Austin LLP, New York, NY, for Petitioners.

Ada E. Bosque, Trial Attorney, (Peter D. Keisler, Assistant Attorney General, on the brief; Ethan B. Kanter, Senior Litigation Counsel, of counsel), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.

Before: CABRANES, SACK, and HALL, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Petitioners Safet Corovic ("Corovic"), his wife Vesmina Corovic ("Vesmina"), and their daughter Ilda Corovic ("Ilda"), natives and citizens of the Former Yugoslav Republic of Macedonia ("Macedonia"), seek review of an order of the Board of Immigration Appeals ("BIA") affirming an order of an Immigration Judge ("IJ") that in pertinent part, denied petitioners' application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re: Safet Corovic, No. A 75 829 501 (B.I.A. Dec. 14, 2006), aff'g No. A 75 829 501 (Immig. Ct. N.Y. City May 4, 2005). Petitioners contend that the IJ's adverse credibility finding is not supported by substantial evidence because (1) the submission of two allegedly fraudulent documents is insufficient, standing alone, to support an adverse credibility determination; (2) certain evidence should have been excluded from the record because it was obtained in violation of petitioners' confidentiality rights under 8 C.F.R. § 208.6; and (3) the IJ and BIA relied erroneously on (a) excluded evidence and (b) inconclusive evidence. As set forth more fully below, we conclude that the IJ's adverse credibility finding lacked an adequate factual basis and instruct the fact-finder to determine on remand (1) whether one of the documents submitted by Corovic was in fact fraudulent; (2) whether Corovic had reason to know that the documents he submitted were fraudulent; and (3) whether the violations of section 208.6 give rise to a new claim for relief.

BACKGROUND

Vesmina and Ilda entered the United States in November 1996 as B-2 nonimmigrant visitors, and Corovic entered the United States without inspection in May 1997. In September 1997, Corovic filed an application for asylum, withholding of removal, and CAT relief on the basis of religious and political persecution, and he included Vesmina and Ilda in that application.¹ In that application, Corovic alleged that he and his wife were assaulted and tortured because (1) they are Bosnian Muslims and (2) he was affiliated with the Party of Democratic Action ("SDA"). Specifically, Corovic claims that he was arrested in 1995 at an SDA meeting and later beaten by the police; imprisoned for two months as a result of his links to the SDA; fired from his job as an engineer as a result of his involvement; and required to undergo regular interrogations by the police afterwards. Some time later, he avers, he fled the country. During his absence, the police allegedly harassed, threatened, and assaulted his wife in order to obtain Corovic's whereabouts. Thereafter, he asserts, Vesmina and Ilda fled to the United States, where Corovic joined them six months later.

I. Evidence and Testimony

In December 1997, Corovic, his wife, and his daughter were each charged with violations of the immigration laws. Corovic was charged as an inadmissible alien present in the United States without having been admitted or paroled in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Having remained in the United States past the expiration of their non-immigrant visas, Vesmina and Ilda were charged as removable under 8 U.S.C. § 1227(a)(1)(B). In April 1998, the Corovics, represented by counsel, appeared before the IJ, conceded the charges, and requested asylum, withholding of removal, or voluntary departure.

At a "merits hearing" in November 1998, Corovic and his wife testified in support of their application. Corovic submitted multiple documents to corroborate his testimony, including identification documents; Department of State country reports; a certificate dated June 25, 1995 from the MTZ Metal Institute, Corovic's former employer, stating that Corovic was dismissed from employment because of "political activity and being a member of [a] political party which [is] against [the] policies of [the Metal Institute]" (the "Employment Certificate"); and an April 21, 1995 "court decision" of the County Court Skopje I indicating that Corovic was sentenced to prison "due to enemy activity" resulting from his membership in the SDA (the "Court Decision").

The IJ expressed concern that some of the documents submitted by Corovic appeared to be fraudulent, and in response, the government submitted two consular reports concluding that two of the documents, the Employment Certificate and the Court Decision, were indeed fraudulent ("Exh. 5" and "Exh. 7", respectively, or "Consular Reports" collectively). Corovic presented additional documents in rebuttal, including a January 13, 2000 "confirmation letter" from MTZ Metal Institute stating that Corovic was dismissed because of a "disciplinary measure"; Corovic's worker identification card issued by the Socialist Republic of Macedonia; a letter from a Macedonian judge confirming that the Court Decision was an original court document; and a court certificate from the Principal Court Skopje I with an apostille² certifying that the Court Decision was an original court document (the "Court Certification"). The government responded with a forensics report ("Forensic Report") concluding that it was "highly unlikely" that one of Corovic's rebuttal documents, the Court Certification, was "what it purports to be." The author of the Forensic Report later testified to his findings and methodology.

Corovic testified that he never knowingly submitted any fraudulent documents.

II. Objections to Consular Reports

At the hearing, Corovic objected to the admission of the two Consular Reports, asserting that they were unreliable and obtained in violation of Corovic's right to confidentiality under 8 C.F.R. § 208.6.³ Corovic maintains that the government violated his right to confidentiality when it submitted the Court Document and the Employment Certificate to the Macedonian government for the purposes of determining whether they were fraudulent. Corovic contends that the submission of such documents without redaction of his name revealed to the Macedonian government that he had applied for asylum in the United States, thereby violating section 208.6 and exposing Corovic and his family to risks at the hands of the same government that he alleges had persecuted him and his family. The IJ overruled Corovic's objections, finding that "[t]here is no evidence as to ... what procedures were followed by the Consulate and the Consulate being an entity of the Department of State is aware of the confidentiality provisions and is expected to be doing things in its course of business ... in the correct way."

The IJ did, however, exclude Exhibit 7, the consular report concluding that the Court Decision was fraudulent upon a finding that he was unable to evaluate effectively the report because it did not adequately state the basis for its conclusion. In his subsequent written decision, however, the IJ relied upon this previously-excluded consular report in finding that the Court Decision was fraudulent.

III. IJ's Decision

In June 2005, the IJ denied Corovic's application for relief, finding that his testimony was not credible. The IJ based this adverse credibility determination on Corovic's "presentation of at least two fraudulent documents," coupled with his failure to offer an adequate explanation for that fraud. The IJ refused to exclude the Consular Reports from evidence based on the confidentiality objection, holding that even though the government of Macedonia was asked directly to authenticate the documents with Corovic's name disclosed, there was "nothing to suggest that the Macedonian government was made aware that the documents had been presented in the context of an asylum adjudication." The IJ also concluded that even if Corovic had proved credible, he had not established that his fear of persecution was objectively reasonable.

IV. BIA Proceedings and Decision

On appeal before the BIA, Corovic argued that: (1) the Consular Reports should have been excluded because they contained "baseless assertions" and were obtained in violation of Corovic's right to confidentiality under 8 C.F.R. § 208.6, see note 3, ante; (2) the Forensic Report, stating that the Court Decision was likely fraudulent, should have been given little weight because it is "inconclusive"; (3) the IJ failed to consider other corroborating evidence and testimony; and (4) even assuming the Court Decision was fraudulent, that fact cannot support an adverse credibility determination where Corovic had no knowledge of the fraudulence. The BIA affirmed and adopted the IJ's decision, "concur[ring] in the ... adverse credibility determination" and concluding that, as a result, it "need not consider whether [Corovic] demonstrated past persecution or a well-founded fear of persecution."

On appeal, Corovic raises several arguments challenging the adverse credibility determination. First, Corovic argues that his submission of two allegedly fraudulent documents, without more, does not constitute substantial evidence that he lacked credibility, particularly in light of (1) the absence of a specific finding that Corovic knew that the documents were fraudulent and (2) other evidence and testimony corroborating his claims. Second, he argues that the Consular Reports should have been excluded from evidence because the government violated his confidentiality rights...