Yongo v. I.N.S., 03-1036.

• Decision Date: 14 January 2004
• Docket Number: No. 03-1036.,03-1036.
• Citation: 355 F.3d 27
• Parties: Samuna YONGO, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 27

355 F.3d 27

Samuna YONGO, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.

No. 03-1036.

United States Court of Appeals, First Circuit.

Heard October 10, 2003.

Decided January 14, 2004.

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.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and OBERDORFER,^* Senior District Judge.

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 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 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.

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 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 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

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...