F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N I K O L A Y I V A N O V A N G O V , P etitioner
,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent

. N o. 07-74963

Ag ency No. A096-227-355

ORDER AND AMENDED OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted J u ne 5, 2012—Pasadena, California

F iled December 4, 2013 Amended J une 8, 2015

B e fore: Sidney

R. Thomas, Chief J udg e, Alex Koz inski and Stephen S. Trott, Circuit J udg es.

Opinion by

J udg e Koz inski; D issent by

Chief J udg e ThomasA N G O V V

. H O L D E R 2

SUMMARY *

Im m igration

The panel withdrew its prior opinion and dissent, f iled an amended op i n ion a

nd dissent, denied a petition for panel rehearing

, and d e n i e d on behalf o f the court a petition for rehearing en banc in a c ase in which the B oard o f I mmig r a tion A ppeals denied an application for asy lum a nd related relief o n a dverse credibility g rounds based on a State Department overseas investig at i on indicating that p etitioner had submitted fraudulent evidence.

The p anel h eld that, on the record, the immig ration judg e acted within his d iscretion in admitting into evidence a letter prepared by the Director of Department of State’s Offic e o f Country Reports and Asy lum Affairs in B u lg ar i a (“B unton L etter”), a

nd in rely ing on it to find that police sub p o e n a s petitioner submitted were fraudulent.

The panel held that as an alien w ho nev e r formally entered the United States, p etitioner h a d no constitutional rig ht to procedural due process, and thus the I J ’s reliance on the B u nton L etter could n ot violate procedural due process. The panel h eld that the I J did not v iolate petitioner’s statutory rig hts to e x am i n e e v idence or c ross-ex amine witnesses b y admitting the letter.

T h e panel also held that the I J ’s adverse credibility finding based on the fraudulent subpoenas was supported b y

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A N G O V V

. H O L D E R 3

s u b s t a ntial e vidence and w ent to the h eart of petitioner’ s claim of persecution b y t h e B u lg arian police, and that he failed to present other evidence to meet his burden of proof.

Dissenting

, Chief J ud ge T homas would hold that
unsworn, u nauthenticated, hearsay letters—prepared for litig ation by the go v e rnment and not subject to any form o f

cross- e x a mination—cannot form the sole basis for deny ing
asy lum to an otherwise qualified applicant.

COUNSEL

Nicolette Glaz er (arg

ued), L aw Offices of L arry R. Glaz er, Century City , California, for Petitioner.

Greg ory G. Katsas, Assistant Attorney G eneral, B a rry J

. Pettinato, Assistant Director, J esse L loy d B usen (arg ued) a nd Charles E

. Canter, Attorney s, United States D ep a r t ment o f J ustice, Civil Division, W a shing ton, D.C., for Respondent.

ORDER

The opinion and dissent filed on December 4
, 2013, a nd published a t 736 F .3d 1263, are hereby withdrawn a nd replaced b y t he amended opinion and dissent filed concurrently w ith this order. W ith these amendments, J udg e s Koz inski and T rott have voted to deny the petition for panel reheari n g, J udg e Koz inski has voted to deny the p etition for rehearing en b anc and J udg e Trott has so recommended. Chief J udg e Thomas has voted to g rant the p e tition for panel rehearing and t he petition for rehearing en banc. The full
court has been advised of the petition for rehearing en banc,A N G O V V

. H O L D E R 4

and no judg e r equested a vote on whether to rehear the matter

en banc. F ed. R. App. P. 3 5. The p e t i tions for panel rehearing and reh e a r i ng en b anc are d enied. No f urther
p e t itions for panel rehearing or rehearing en b anc wil l b e entertained.

OP INION

KOZ I NSKI , Circuit J udg e:

Does an immig ration judg e e rr by relying on a Sta te Department investig ation of an asy lum petitioner’s claim?

I. BACK G ROUND

Nikolay Ang ov, a B ulg arian citiz en , c l aims he was persecuted by t h e Bulg arian g overnment because h e is Ro m a

. 1 He alleg es repeated abuse a t the hands of the B ulg arian police, including beating s, false accusatio n s o f crimes and illeg itimate arrests. After three y ears of this treatment, he fled B ulg aria and soug ht a sy lum in t h e United States.

An I J conducted a sy lum hearing s in early 2004, during whi c h Ang ov presented several documents, including two B ulga r i a n subpoenas that ordered him to appear at a Sofia polic e station. The immig r ation judg e (“I J ”) allowed the
g overnment to o btain a State Department investig ation o f Ang ov’s a l l egations. See 8 C.F

. R. § 208.11. The investig ation was conducted by our consula t e i n Sofia, a nd

1 A n g o v ’ s b rief ref

ers to h im as “ Ro m a” o r “ g y psy ” in terch an g eab ly

. So d o w e.A N G O V V

. H O L D E R 5

the results were sum m a r iz ed in a letter sig ned b y Cy nthia B unton, Director of D epartment of State’s Office of Country Reports and Asylum Affairs.

T h e I J admitted the B unton L etter, which stated that t h e Embassy had contacted “an o f f icial in the Archive Department at the 5th Police District in Sofia.” The official found a number of errors in the subpoenas, sug g est i n g t h at they were forg eri es : ( 1 ) Three officers named in the subpoena—Captain Donkov, L ieutenant Slavkov a nd I nvestig ator Vutov—never worked for the police department; (2) the case and telephone numbers were wrong ; a nd (3) althoug h the subpoenas mentioned room 4 on the second floor of the d epartment and room 5 on the first floor, there a re

no r ooms by those numb e rs. The official also ex p lained (4) that the seal on the subpoena was too small.

B u nton a lso stated that the embassy investig ator (5) was unable to locate Ang o v’s c laimed past residences; and (6) that the neig hb o r h o od where Ang ov lived was only twenty to thirty percent Roma, thoug h Ang o v claimed that he lived in

a “g y p sy neig hborhood.” Attached to the l etter were five photog raphs of the places t h e investig ator had visited while try ing to verify

the addresses.

Ang ov’s industrious lawy er submitted a ple t h ora o f rebuttal evidence, including photos, maps, an article about An go v ’ s neig hborhood and a letter apparently sig ned b y

someone named Daniela Mihaylova, who identified h erself a s th e l e gal prog rams director o f a Roma human rig hts
org aniz ation in B ulg aria. Ang ov also arg ued that, w ithout the opportunity to cross-ex amine the investig ator, the admission of the B u n t o n L etter would violate his statutory a nd constitutional rig hts.A N G O V V

. H O L D E R 6

I n r esponse to An gov’s o bjection, the g overnment attorney asked the State Department to produce an employ ee to testify about the investig at i o n

. State responded w ith a l e t ter authored by Nadia Tong our, B unton’s successor. T h e Tong our L etter provided some g en e r al backg r ound information on State’s investig ation procedures, but

ex p lained that it’s State’s policy to refrain f rom providing further specific information about an overseas investig ation.

B a sed on the B unton L etter, the I J made a n adverse

cr e d i bility f

inding and denied Ang ov’s applications for
asy lum, withholding of removal a nd r elief under the C o n v e ntion A g ainst Torture. The B o ard of I mmig ration Appeals (“B I A ”) adopted and affirmed the I J ’s r uling deny ing relief, and his d et ermination that the subpoenas a re fraudulent. The B I A also denied A ng ov’s m o t i o n to supplement the record with a recent Six th Circuit opinion that Ang ov claimed constituted new eviden c e o f a “pattern a nd 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 Rem and

Ang ov claim s t h e B I A abused its discretion b y deny ing his motion. S

e e Movsisian v

. A shcroft

, 3 95 F .3d 1 095, 1098 (9th Cir. 2005). His brief before the B I A spen t j u s t t w o sentences ex plaining this arg ument:

Respondent respectfully submits a copy o f Al e xandrov v. Gonzales to supplement the record in this case. The document is submitted to document a pattern and practiceA N G O V V

. H O L D E R 7

of procedural and substantive violations of the law and applicable reg ulations b y the

c o n s u l a t e i n S o f

i a d u r i n g o v e r s e a s investig ations and in divulg ing the identity o f
asy lum applicants to the a u t h o rities in B u lg aria in violation of C.F .R. 208.6 [ sic]

.

“Since a motion to reman d i s s o similar to a motion to reopen, the motion to remand should be drafted in conformity with the reg ulations pertinent t o motions to reopen

. . . . ” Rodriguez v. INS
, 8 41 F .2d 865, 867 (9th Cir. 1988) (internal quotation marks o mitted). T h e applicable r e g u lation provides that a motion to r eopen shall state “the new f acts that will be
proven at a hearing to be held if the motion is g r anted” a nd be supported by affidavits or o t h er “evidentiary material.” 8 C.F .R. § 1003.2(c)(1). Bu t Ang ov didn’t provide any evidence supporting h is motion nor did he even ex plain why h e b e l ieved that section 208.6 had b een violated. 2 The B I A did not abuse its discretion in deny in g Ang ov’s motion to remand.

B. Adm ission of t he Bunton Letter

Ang ov claims t hat the admission o f, and the I J ’s a nd B I A’s reliance on, the Bunton L e tter violated his statutory and constitutional rig h ts. See 8 U.S.C. § 1229a(b)(4)(B );

2 8 C

. F.R. § 2 0 8.6 (a) p ro v id es t h at “ [i]n f o rm atio n co n tain ed in o r p ertain in g to an y asy lu m ap p l icatio n

. . . sh all n o t b e d isclo sed w ith ou t th e

w ritten co n sen t o f th e ap p l ican t.” A n g o v arg u es th at Alexa n d ro v “ ex po s ed th e im p ro p rieties th a t h av e rid d led ov erseas in v estig atio n s in th e So f ia

co n su late,” in clu d in g th at in v estig atio n s w ere o f t en co n d u cted b y f

o reig n

serv ice n atio n als, th at so m eo n e oth er t h an a co n su lar o f

f icer co u ld h a v e

au th ored em

b assy rep orts an d th at co n su lar o f f icials of ten sig n ed rep o rts

w ritten b y o th ers. No n e o f

th ese arg u m en ts w ere p resen ted to th e B IA

.A N G O V V

. H O L D E R 8

8 C.F .R. § 1 240.10(a)(4); Cinapian v. Holder

, 567 F .3d 1067, 1074–75 (9th Cir. 2009). I n considering Ang ov’s arg ument,

we review the I J ’s decision, ex cept for the portion that the B I A didn’t clearly adopt—her e , the I J ’s conclusion that the Department of State’s ina b ility to verify Ang o v’s addresses

s u p p orted a

n adverse credibility finding

. See Joseph v. Hol d e r , 6 0 0 F .3d 1235, 1239–40 (9th Cir. 2 010). On that issue, we review the B I A’s decision.

W h ile we review leg al ques t i o n s de novo, “[ t] he B I A ’s interpretation and a

p plication o f the immig rati o n l aws a re g enerally entitled t o d eference.” 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
ag ency ’s factual finding s—such as i t s adverse credibility d e t e r mination—are reviewed for substantial evidence a n d c a n be reversed o nly if the evidence “co m p el s ” a contrary conclusion. S

e e Rizk v. Holder

, 629 F .3d 1083, 1087–88 (9th Cir. 2011) (emphasis omitted).

(i) Due P rocess

Ang ov c laims that the I J ’s reliance on the B unton L e tter violated his constitut i o n al rig ht to procedural due process. B ut Ang ov has no such rig ht. He i s a n a lien who has never formally e nt e r e d the United States. He presented himself at the San Ysidro port o f entry wi t h o u t v a lid entry documents and soug ht asy lum. “[ A] n alien seeking admissi on has not ‘entered’ the United States
, e ven if [ h e ] is in fact phy sically present.” Kwai F

u n W ong v. United States
, 3 73 F

. 3d 952, 971 (9th Cir. 2004). “[ O] ur immig r ation laws have long made a distinction bet w e e n t h ose aliens who have come to

o u r shores seeking admission

. . . and those who a re w ithin the United States after a n en t r y

. ” Leng May Ma v. B a rber

,A N G O V V

. H O L D E R 9

357 U.S

. 1 8 5
, 187 (1958). Aliens “who have once passed throug h our g ates, ev e n illeg ally ,” are afforded the full panoply o f p rocedural due process protections, and “may be

ex p elled only after p ro c e e d ing s c o nforming to traditional standards of fairness.” Shaug h nessy v. United States ex rel. Mezei
, 345 U .S. 206, 212 (1953). B ut those, like Ang ov, w ho have never technically “entered” the United States h a v e no such rig hts. I

d

. F or Ang ov, procedural due process is simply “[ w] hatever the procedure authoriz ed by Cong ress” happens
to b e. Id

. (internal quotation marks omitted); see also Landon

v. Plasencia

, 4 59 U.S. 21, 32 ( 1 9 8 2 ) (“[ A] n alien seeking initial admission to the United States requests a privileg e a nd has no constitutional rig hts reg arding his application

. . . .”).

Ang ov’s claim o f a pro c e d ural due process violation simply can’t be squared with the Supreme Court’s teaching s in Mezei and Landon

, n o r with our circuit’s settled precedent. See B arrera-Echavarria v. R ison
, 44 F.3d 1441, 1449 (9th Cir. 1995) (“[ E] x cludable a liens have no p ro c e d u r al d ue process rig hts in the admission process . . . .”). 3

3 W e n ote th at f

o u r circu its h av e h eld th at relian ce o n d o cu m en ts lik e th e B u n to n L etter in asy lu m

p ro ceed in g s v io l ates d u e p ro cess. See Ba n at v

. Ho ld er , 5 5 7 F.3 d 8 8 6
, 8 9 2

– 9 3 (8 th Cir. 2 0 0 9 ); An im v

. Mu ka sey , 5 3 5 F.3 d 2 4 3
, 2 5 6

– 58 (4 th Cir. 20 0 8 ); Alexa n dro v , 4 42 F.3 d at 4 0 7 ; Ezea g wu n a v

. Ash cro ft

, 32 5 F.3 d 3 9 6, 4 0 5

– 0 8 (3 d Cir. 2 0 03 ). B ecau se A n g o v d o es n o t h av e a co n stitu

t io n al rig h t to p ro ced u ral d u e pro cess, th at q u estio n is n o t b ef o re u s. W e also n o te th at t w o o th er circu its h av e h eld th at asy lu m ap p lican ts lik e A n g o v are en titled to certain “ m in im u m d u e p ro cess” rig h ts in th e ap p licatio n o f th eir statu to ry rig h ts. S ee M a rin ca s v

. Lewis
, 9 2 F.3 d 1 9 5
, 2 0 3

– 0 4 (3 d Cir. 1 9 9 6 ); Au g ustin v

. S a va , 73 5 F.2 d 3 2
, 3 7 ( 2d Cir. 1 9 8 4 ); see a l

s o Mea ch u m v

. Fa n o , 4 2 7 U.S. 21 5
, 2 2 6 (1 9 7 6). W h eth er asy lu m ap p lican ts are o w ed s u ch “ m in im u m d u e p ro cess” is an op en q u estio n i n o u r circu it, b u t i t i s n o t o n e w e n eed to reso lv e h ere. A n g ov

w as clearly

g iv en f air access to all h i s statu to ry rig h ts. W h at h e ask s f

or in stead are d u e p ro cess p ro t ectio n s th at g o b ey o n d th o se w h ich C o n g ressA N G O V V

. H O L D E R 10

(ii) Statutory Rights

Ang ov’s c halleng e to the admission of the B unton L etter is therefore p u rely statutory

. I n assessing such a challeng e , we must first ask whether the I J made leg al error by deny ing Ang ov any of h is statutory rig hts. Ang ov claims that he was denied his rig ht t o e x a mine evidence ag a inst him. See 8 U.S.C. § 1229a(b)(4)(B ). B ut the record t ells a different story

. He was allowed to ex amine the B unton L etter, a nd
g iven a mple time to p roduce substantial evidence to rebut it. Se e p. 5 supra ; cf. Cinapian
, 567 F .3d at 1076 (had the
g overnment g iven petitioners a c h a n c e to ex amine forensic reports before hearing

, they may have been ab l e t o produce rebuttal evidence).

Ang ov a lso a

rg ues that he w as d e n i e d his statutory rig ht
to cross-ex amine the witnesses ag ainst him. W e’ve held that, before hearsay

statements made by an absent witness can be admitted into an immig ration hearing

, “‘the g overnment must make a reasonable effort

. . . to afford the alien a reasonable opportunity to confront the witnesse s ag ainst him o r her.’” Hernandez-Guadarrama v

. Ashcroft

, 394 F .3d 674, 6 81 (9th Cir. 2005) (quoting Saidane v. INS
, 129 F .3d 1063, 1065 (9th Cir. 1997)); see also § 1229 a (b)(4)(B ); Baliza v

. INS
, 709 F .2d 1231, 1234 (9th Cir. 1983).

The g overnment is, o f course, not required to produce B ulg arian polic e o ff

i cials at an immig ration hearing in the United States. Such a requir ement would make it v irtually impossible fo r t h e g overnment to introduce evidence rebutting a

n alien’s claims relating to conduct a b r oad.

h as pro v i d ed h im

. B u

t, a s a n a l i e n w

h o h as n ev er en tered th e Un ited States, th ose p ro tectio n s are u n av ailab le to h im

.A N G O V V

. H O L D E R 11

I n s t ead Ang ov, and the dissent, c laim that the immig ratio n author ities should have obtained a witness from the Department of State to verify the letter’s contents. B ut hauling State Department officials into c ourt woul d n ’t ameliorate the dissent’s c o n c e rns, b ecause the letters they author inescapably rely on forei g n officials who aren’t amenable to cross-ex amination.

I n any event, the g overnment here did make a reasonable effort to obtain a State Department witness, but was prevented from doing so b y State’s policy of no t r e leasing follow-up information reg arding its overseas investig ations. The d issent claims that “ allowing one ex ecutive b ranch
ag ency to rely on another ex ecutive branch ag ency ’s b lanket policy of refusing t o p rovide certain information is
tantamount to g ranting the g o vernment the kind of unfettered discretion we repudiated in Baliza .” B ut Baliza o ffers no support to the dissent’s p osition. There the g o vernment relied

on the affidavit of an alien’s ex -wife a s t h e b asis for a fraudulent marriag e c harg e while b arely even trying to investig ate her whe reabouts. The declarant was not a g overnment official and the g overnment g ave no justification for failing to find h er. By contrast, the declarant here is a g overnment official speakin g i n h er official capacity

. A nd the immig r ation authorit ies’ decision not to present her in
person was m a d e pursuant to a coordinate department’s reasonable policy g overning the secrecy and sa fe t y of its officers. B ecause neither the immig r ation authorities nor the State Department a cted unreasonably in failing to c ompel B unton to testify

, Ang ov’s statutory r ig hts were n ot violated.A N G O V V

. H O L D E R 12

(iii) Substantial Evidence

B e cause the I J did not e rroneously deny Ang ov a

s t a tutory rig ht, our review is limited to w hether the I J ’s adverse credibility finding was supported by substant i al evidence. “This strict standard bars a reviewing co u rt from ind e p endently weig hing the evidence,” and requires us to “deny the Petition unless Petitioner [has] presented evidence

so compelling that no reasonable factfinder could find that Petitioner” was not credible. Singh v. INS
, 134 F .3d 962, 966 (9th Cir. 1998) (internal quotation marks omitted).

Despite the g enerally flex ible—and hig hly deferential—
nature o f substan tial evidence review, Ang ov appears to arg ue for a per se r

ule under which immig ration judg es must blind themselves to the finding s of a State Department letter, unless it provides particular information r e garding how an investig ation was conducted. Surprising ly

, A n g ov’s r adical proposal accords with the view of the Second Circuit, which has held that a document akin to the B unton L etter was “inherently unreliable” because i t didn’t reveal the qualifications of the invest i g ator, the ex tent of the investig ation or the method s used to verify the information. Lin v. U.S. Dep’t of Justic e , 459 F .3d 2 55, 2 71–72 (2d Cir. 2006). U nder Second Circuit law, therefore, d o cuments like the B unton L etter c a teg orically “cannot support [ an] adverse credibi l i t y finding .” I

d. at 2 72. W e reject this approach. Substantial evidence review r e q u i r e s an appellate court to consider the reasonableness of an ag ency ’s conclusions; it does not empower us to craft quasi-statutory cr i t e ri a g overning th e admissibility of evidence in ag ency proceeding s. I n lig ht o f o ur departure from the holding of a sister circuit—one with the second-la rg est immig r ationA N G O V V

. H O L D E R 13

docket in the countr y

— w e offer a thoroug h ex planation for our rationale.

1. Cong ress and the Attorney Ge n e r al have a ccorded aliens like Ang ov a variety of procedural rig hts, including the

r i ght to be present at the hearing ; to be r epresented by counsel; to ex amine the evidence ag ainst him and present counter-evidence; to c r oss-ex amine witnesses; and to have a written record kept of the pro c ee ding s. 8 U .S.C. § 1229a(b)(4). B ut neither the statute n or the r eg ulations g ive the asy l u m a p plicant a rig ht to a particular quality of the evidence presented ag ainst him. I nstead, he is g iven the rig ht
t o have an impartial adjudicator assess the evidence. W h en

e x ercising g race towards individuals entitled no procedur al

r ig hts under the constitution, Cong ress can set the pr e ci s e limits of what it g rants and w hat it w ithh o l d s

. That then defines the process an asy lum seeker like Ang ov is due.

W i t h that in mind, let’s put Ang ov’s claims into some

co n t e x t

. The I J found that Ang ov presented forg ed documents. This is a serious matter that, if t r u e, should not merely result in the immedia t e termination o f Ang o v’s
asy lum petition, but also in c riminal p r osecution for immig ration f

raud. B ut the I J w a sn’t faz ed by d iscovery o f the fraud; he went on to decide whe t h e r Ang ov’s asy lum claim c ould be sustained despite the forg erie s

. N o other adjudicator in the United States would react with s u ch equanimity to finding that a party had tried to bambooz le it.

This points to an unfortunate reality th a t m a kes immig ration cases so d i fferent from all other American adjudication s : F raud, forg ery and fabrication are so common—and so difficult t o p rove—that they are routinelyA N G O V V

. H O L D E R 14

t o l erated. Our circuit is no ex ception. See Abovian v. I N S
, 257 F .3d 971 (9th Cir. 2001) (Koz inski, J ., dissental).

T h e reason for this deplorable state of affairs is n o t difficult to fig ure out. T he schiz ophrenic way we administer

our immig ration laws creates an e nvironment where ly ing a nd forg ery are d ifficult to d isprove, richly rewarded if successful and rarely punished if unsuccessful. This tox ic combination
creates a moral haz ard to which many asy lum applicants fall
prey

.

F irst, the reward: the opportunity to be lawfully admitted into the United States. Those born with U.S. c itiz e nship
cannot imag ine what this is worth to the world’s poor a nd oppressed b illions, most of whom w o u l d come here tomorrow if they c ould. Gaining a lawful foothold i n A m e r ica is an i n c a lculable benefit. I t sets an immig rant on the path t o a peaceful life in a f

ree society

, economic pro s perity

, citiz enship and the o p portunity to brin g f a m ily members in due course. A priz e like this is worth a g reat deal of e x pense and risk. Telling an elaborate lie, and coming up with forg ed documents and mendacious w itnesses to back it up, is nothing at all when the stakes are so hig h.

And the risk of g etting caug ht is low. As eig ht members of this court pointed out in Abovian :

The specif

ic facts supporting a petitioner’s
asy lum c laim—when, w h e r e, why a nd b y whom he w as alleg edly persecuted—are peculiarly within the p etitioner’s g rasp. B y definiti o n , they will have happened at some time in the past—often many y ears ag o—in a foreig n country

. I n o r d e r for the I NS toA N G O V V

. H O L D E R 15

p resent evidence “ refuting or in any w a y contradicting ” petitioner’s testim o ny , i t w ould have to conduct a costly and of ten fruitless investig ation a

b r oad, try ing t o prove a neg ative—that the incidents petitioner alleg e s did not happen.

257 F

. 3d at 976. There’s v ery little the United States can do
to investig at e obscure incidents that alleg edly occurred in countries on the other side of the g lobe. Even if it were economi c ally feasible, we can’t send the F B I into a foreig n country to conduct a full field investig ation. The best we can do is to have consular p e r sonnel check basic facts, in addition
to the many other functions they perform. And we have very few U.S. consular personnel on the g r ound in most countries; in all of B ulg aria, there are fewer than two doz en. See U.S. Sec’y of State, 1 Congressional Budg e t J ustification, Department of State Operations, Fisc a l Y ear 2013
, a t 306 (2012). All told, there are fewer than 6000 consular officials in embassies and consulates spread o ut a cross more than 170 countries. I

d. at 227–311.

F inally

, if an alien does g et caug ht ly ing or commi t ting f r a u d, nothing very bad happens to h im. Sure, he may b e ordered removed, but most a liens who aren’t in c ustody remain here long after their removal orders b e c o me final. See, e.g. , Office of the I nspector Gen., U.S. Dep’t of J ustice, The Immigration and Naturalizati on Service’s Removal of Aliens Issued Final Orders iii ( 2003) (reporting that “the I NS removed only 3 p ercent o f nondetained asy lum seekers with final removal orders”); see also Mark Hamblett, Circuit Sets Policy for Removal Cases Deemed Low Priority by U .S.
, N.Y. L .J
., Oct. 18, 2012 (disc u s s i n g policy that c alls for “the

ex e r cise o f p r osecutorial discretion to focus removal effortsA N G O V V

. H O L D E R 16

on the most hig h -priority cases”). An d i f they do g et sent back—at o ur e x pense—what’s lost? They wind up where they started. W ould-be immig rants almost never g et prosecuted for presenting forg ed documents in supp o rt o f
asy lum petitions, unless they commit some additional misconduct. See, e.g. , United States v. Jawara
, 474 F .3d 565, 570 (9th Cir. 2007) (defendant charg ed with document fraud and co n s p i r acy to c o mmit marriag e fraud). Consequently

, immig ration fraud is rampant.

Take, for instance, Ang ov’s compatr i o t , Pavel Pavlov. Pavlov soug ht asy lum as a persecuted g y psy , just like Ang ov. They even h ave the same lawy er. B ut Pavlov’s s tory took a different turn w hen his w ife g ained U.S. citiz enship and he
soug h t adjustment of status. I n the process, he had to d isclose that his asy lum application was a tissue of lies. Specifically

, Pavlov admitted that he wasn’t persecuted i n B ulg aria. I n fact, he’s not even a g

y psy

.

Americans g alore wind up in federal prison every y ear for far less sig nificant lies on g overnme n t f o r ms or bank loan applications. See, e.g. , United S tates v. Prince
, 6 47 F .3d 1257, 1260–61, 1265 ( 1 0 t h Cir. 2 011); U nited States v. Sandlin

, 589 F .3d 749, 751–53 (5th Cir. 2009); United States

v. J a ck

, 216 F

. App’x 8 40, 841–43 ( 11th Cir. 2007). So was Pavlov appealing his criminal conviction? Certainly not. The B I A barred Pavlov fr om obtaining any relief under our immig ratio n l a w s because he h ad filed a frivolous (read: fraudulent) asy lum petition—a decision he had the chutz p ah
to appeal. See P a v l ov v

. Holder

, 697 F .3d 616 (7th Cir. 2012).

Cases involvi ng fraudulent asy lum claims a re distressing ly common. See, e.g. , Cheema v. H older

, 6 93 F .3dA N G O V V

. H O L D E R 17

1045, 1046–47 (9th Cir. 2012); Dol v. Holder

, 4 9 2 F

. App’x 774, 775 (9th Cir. 2012); Zheng v. H older

, 6 7 2 F

. 3d 178, 180–81 (2d Cir. 2012); Fernandes v. Holder

, 619 F .3d 1069, 1074–76 (9th Cir. 2010); Ghazali v. Holder

, 585 F .3d 289, 290–91 (6th Cir. 2009); Rib a s v

. Mukasey

, 545 F .3d 922, 925–26 (10th Cir. 2008); Siddique v

. Mukasey

, 547 F .3d 814, 815–16 (7th Cir. 2008); Ra f i y e v v. Mukasey

, 536 F .3d 853, 855–57 (8th Cir. 2008); Dhi t a l v

. Mukasey

, 532 F .3d 1044, 1047–48 (9th Cir. 2 0 08) ( per cu r i a m); Chen v

. Mukasey

, 527 F .3d 935, 9 38–39 (9th Cir. 2008); Ahir v. Mukasey

, 527 F .3d 912, 914–16 (9th Cir. 2 0 0 8). And for e very case where the fraud is discovered or a dmitted, there are doubtless

scores of ot h e r s w here the p etitioner g ets away with it because o ur g o vernment didn’t h ave the resources to ex pose the lie.

The Second Circuit has g iven this a l r eady shaky sy stem

a swift kick in the g ut. As we e x plain f u r t h er below, its ruling makes it pretty much impossible for the immig r ation authorities to carry out even the little bit o f fact checking they

now manag e to do. I t s d ecision smothers the State Department’s i n f

o r m al process of checking up on asy lum petitions in lay ers o f p r oc e d u ral complex ity that will prove impossible to administer in practi c e. P erhaps the Supreme Court or Cong ress will intervene and decide who’s rig h t.

2. The basic question that c onfronts us is this: I n a sy stem where th e r e are pervasive, structural incentives for f r a u d

, are we to disable our triers o f fact from consider i n g certain evidence —which may b e essential to weeding out fra u dulent c laims—when that evidence lacks particular details that may bear o n i ts reliability ? Remember, the Second Circuit reg ards do cuments like the B unton L etter a s inheren t ly unreliable. W e need not—and do not—concludeA N G O V V

. H O L D E R 18

that such letters wi l l a lway s lead to adverse credibility finding s; w e simply disclaim the conclusion that they must be

ex c luded from an immig r ation judg e’s consideration when they fail to provide sufficient identify ing detail.

W e acknowl e d ge the B unton L etter lacks c ertain indicia of reliability

, but we cannot say , u nder our “ex tremely deferential” review, that its use alon e c o nstitutes g rounds to

reverse the I J ’s adverse credibility d etermination. W ang v. INS
., 352 F

. 3d 1250, 1257 (9th Cir. 2003). F irst of all, A ng ov has the burden o f proving his elig ibility for a s y l u m

. See 8 C.F

. R. § 1208.13(a). The g overnment has no burden; it can present evidence solely to rebut or impeach petitioner’s c ase. The I J a n d t h e B I A could r easonably conclude that the B unton L e tter is at l ea s t s ufficient to c a st doubt on Ang o v’s evidence and force him to come up with more solid proof to support his claim.

Ang ov f inds fault with t h e B unton L e tter b e cause it “provides n o information as to who conduct e d the investig ation; who obtained, stor ed and verified the information un d erly ing the conclusion ex pressed in the document [ or] when and under w hat au t h o rity the investig atio n wa s conducted.” He notes that the B unton L etter offers no ex planation for many of its conclusions—for

ex a mple, th a t both the case numbers and the telephone numbers listed on the fraudulen t subpoenas were incorrect. These are all interesting points to raise at the hearing

, and the absence of a satisfactory response f rom the g overnment mig ht well con v ince the trier of fact to disreg a rd the letter. B ut in this instance, the I J
, in his d i s cr e t ion, chose to credit the letter. That was his prerog ative, and our review is limited to whether that decision is p ermissible in lig ht of the evidence.A N G O V V

. H O L D E R 19

The doubts as to the letter’s reliability flow from the fact that the rules of evidence, a nd the h earsay rules in p articular, don’t apply to administrative proceeding s. See Richardson v. Perales

, 4 02 U .S. 389, 4 0 0

– 0 2 ( 1971); HernandezGuadarrama v. Ashcroft

, 3 94 F .3d 674, 681 (9th Cir. 2005). This inevitably leaves some uncertainty tha t w o uld be eliminated if this w ere a formal trial subject t o t h e r ules o f evidence. B ut i t d oesn’t d eprive the o pposing party of any and all means of rebutting the hearsay declarant’s assertions.

The B unton L e tter does come to certain f actual conclusions: that the addresses identified by A n gov in his
asy lu m petition don’t ex ist; that the officers—Captain Donkov, L i e utenant Slavkov and I n vestig ator V utov—and

room numbers specified in the subpoenas pre sented b y A ng ov don’t ex ist; that the seals on the subpoenas a re the wrong siz e; and that the part of the city where Ang ov claimed to live

was only twenty to thirty p ercent Roma. E ac h of these assertions describes f

acts in the real world, so it’s possible to rebut B unton b y presenting proof that thos e f acts are not a s the B unton L etter describes them.

I n fact, Ang ov did precisely that with res p e c t t o the two addresses. He presented a letter from someone in B ulg aria, who ex plained that the B unton L e tter’s conclusions about the addresses are wrong

. See p. 5 supra ; Appendix

. And the B I A

seems to have been sway ed, a s i t n o t e d that the “record is unclear” about whether Ang ov was telling the truth about the addresses.

Ang ov w as free to present similar evidence to undermine the B unton L e tter’s statements about the subpoenas. He could have h ad Ms. Mihay lova from the human rig hts
org aniz ation or some other friend in Sofia visit the p ol i c eA N G O V V

. H O L D E R 20

station and try to find out whether the r ooms referenced in the B unton L etter do or d on’t ex ist. He mig ht also have been able to obtain a roster of the n ames of police officials in Sofia

an d shown that it contains the names of the officers referenced in the subpoenas.

The B unton L etter a lso asserts that the phone numbers in the subpoenas aren’t correct. Ang ov o r one of his f r iends could have called the numbers and a sked whether he’d reached the police station—and then submitted an affidavit to that effect. T he same is true about the seals: A n g ov or his friends mig ht have tried to obtain an o fficial c o py of the police seal f

rom the B u lg arian g overnment and introduced it into evidence. He did none of these thing s, perhaps because he knew that the subpoenas were forg ed.

W h ere the petitioner h as the burden of proof, there’s nothing u nfair about having a U .S. g o v ernment ag ent check
out some of his basic facts and inform t h e I J of possible discrepancies. T his forces the petitioner to obtain f urther evidence supporting the challeng ed cl ai m s

. There mig ht be situations where obtaining further e v i d e nce is impossible, such as where the petitioner h a s f led from a closed society and can find no one willing or able to obtain the evidence he needs. I n such cases, we don’t hold the petitioner’s f ailure to present evidence ag ainst him. See Singh v. H older

, 638 F .3d 1264, 1270–71 (9th Cir. 2 011). B u t A ng ov has never claimed that he c ouldn’ t g et more evidence; indeed he has resources in B ulg aria w ith which to do so. B ase d o n the almost complete a

bsence of rebuttal evidence on Ang o v ’s part, the I J was not unreasonable to credit the alleg ations in the B unton L etter.A N G O V V

. H O L D E R 21

3. There’s nothing particularly ex o tic about assessing an asy lum applicant’s credibility b y comparison with an

ex trins i c source. F or ex ample, the B unton L etter’s estimate that Ang ov comes from a community that is only twe n t y to thirty percent Roma is s i m i lar to the kind of d emog raphic estimates made by the State Department in i t s c o u n try reports, on w hich w e and the B I A r ely all the time. See, e.g. , Dhillon v. Holder

, 485 F ed. App’x 252, 253 (9th Cir. 2 012); Patel v

. Holder

, 474 F

. App’x 5 84, 585 (9th Cir. 2012); Sesay

v. Holder

, 469 F

. App’x 617, 617 (9th Cir. 2012) ; s e e also Sowe v

. Mukasey

, 538 F .3d 1281, 1285 (9th Cir. 2008) (“U.S. Department of State c ountry reports are the most appropriate and p erhaps the best r esource f or information o n p olitical situations in foreig n nations.” (i n ternal quotation marks omitted)); cf. 8 U.S.C. § 1158(b)(1)(B )(iii).

W e re we to hold that we can’t rely on this estimate in the B unton L etter, we’d be casting d oubt on a m u l t i tude o f

c o u n t ry reports that have no better support for their demog raphic estimates than the B unton L etter. The country reports are, after all, prepared by t h e v e r y same consular officials, using some of the same methods, as th e Bu n ton L etter. S e e B ureau of Democracy
, Human Rig hts & L abor, U.S. Dep’t of S t a t e , Country Reports on Human Rights Practices for 2 01 2 : Appendix A : Notes on Preparation of Reports
, at 1 (2012). I ndeed, Cy nthia B unton’s title when she
wrote her letter was director o f the Department of State’s “Office of Country Reports a nd Asy lum Affairs.” (emphasis added). Nadia Tong our is her successor. Adopting Ang o v’s objection t o t h e finding s in the B unton L etter c ould render country reports inadmissible in immig ration proceeding s.

Ang ov complains that the B u n ton L etter mig ht have relied

on reports f

r om foreig n service nationals (F SNs). SeeA N G O V V

. H O L D E R 22

Ezeagwuna
, 325 F .3d at 406. W h at if it did? Our embassy in Sofia, as el s e where, employ s roug hly the same number o f F SNs and Americans. U.S. Sec’y of State, 1 Congressional Budget Justification, Department of State Operations, Fiscal Y e a r 2013
, at 306 ( 2012). Our short-staffed c onsular o ffices

no doubt use F SNs, who are fluent in the local lang uag e a nd familiar with local conditions, to do some of the l eg work. W e see nothing wrong with that. W hether the inves t i ga t ion

was conducted by U.S. c itiz ens, F SNs or H ercule P o i r ot, it resulted in certain factual conclusions that can be refuted.

Submissions such as the B unton L etter and th e v arious country reports on wh i c h w e routinely rely aren’t just a collection of statements b y disconnected individuals. Rather, they are the unified work product of a U.S. g overnment ag ency carry

ing out g overnmental responsibilities. As such, the report itself, a n d t h e acts of the various individuals w ho h e l p ed p repare it, are clothed with a presumption of
reg ularity

. See Nat’l Archives & R ecords A d m i n. v. Favish

, 541 U.S. 1 5 7
, 174 (2004); see also Kohli v. G onzales

, 473 F .3d 1061, 1068 (9th Cir. 2007). “ [ I ] n the absence o f clear evidence to the contrary , courts presume that [ these individuals] have properly discharg ed their official d uties.” Favish

, 541 U.S. at 174 (quoting United States v. Armstrong
, 517 U.S. 456, 464 (1996)).

The presumption of reg ularity has been applied fa r a nd wide to many functions performed by g overnment officials. See, e.g. , U.S. Postal Serv. v. Gregory
, 534 U .S. 1, 1 0 (2001) (Post O ffice disciplinary p rocedures); Uni t e d States v. Armstrong
, 517 U.S. 456, 464 (1996) (prosecutorial decision making ); FCC v. Schreiber

, 3 81 U.S. 279, 296 (1965) ( F CC’s decision making process); c f

. INS v. Miranda

, 459 U.S. 14, 16–18 (1982) (per curiam) (processing of visa application).A N G O V V

. H O L D E R 23

T h e B unton L etter is entitled to the presumption th at those who participated in its preparation, be they F SNs, consular officers or o f

f i c ials a t the State Department in W ashing ton, did their jobs f airly

, conscientiously a n d thoroug hly ; that each officer in the chain relied on the work of someone down the chain in whom he had confidence; that

no one had a personal stake in the substance o f the report; a nd that no o ne lied or fabricated evidence. Without this presumption, country reports w o u l d be no more u seful than the F armers’ Almanac or Perez hilton.com.

The dissent arg ues that the p resumption of r e gu larity doesn’t apply here because “[ t] h e key hearsay statement in the B unton L etter comes from a B u lg arian police employ ee, not a U .S. g overnment official.” B ut that would remain true,

even with the procedural pr o t e c tions the Second Circuit advocates. Those protections don’t prevent B ulg arian police

o f ficers f r om ly ing

, they simply make it easier for a n I J t o

assess the quality of investig a tion conducted by our consular officials—the very officials w e presume re l i a b le. As with a country report, the information in a c o n s u lar letter may be based, in part, on hard-to-verify st atements made by local officials. That’s a reason to take the information contained in such letters w ith a g rain of salt—as an I J i s entitled to do—not a reason to d e e m them inadmissible in their entirety

.

The similarities between the B u nton L etter and the litany of documents u sed, and accepted, in ev e r y day asy lum adjudications s p eaks to a f undamental misapprehension on the part of the Second Circuit and the dissent. I mmig r ation adjudication necessarily r equires consideration of a ll manner of i m p erfect sources. B ut we do neither immig rants nor the immig ration authorities a s e r v ice by cabining the rang e o f permissible documents o n which a trier of fact can rely inA N G O V V

. H O L D E R 24

making his decision. I n asse s s i n g whether an incident

o ccurred y ears ag o in a f araway country with an unfamili a r

c u lture and political sy stem, an immig ration judg e must b e able to read, assess and weig h as much information a s possible. True, dismissing a petition in reliance o n an

unsworn letter mig ht seem harsh; b u t s o is dismissing a petition based on relatively minor testimonial inconsistencies in the convoluted story of a n immig rant who may have only

a weak command of E n g lish and a haz y memory of his flig ht from terror. H a r s hness is e ndemic to any asy lum sy stem. Here, the I J came to the conclusion that the u n r e f u ted
contents o f the B unton L e tter c as t doubt on the subpoenas Ang ov presen t e d a s evidence. Do we really better serve justice, or t he immig ration process more g enerally

, b y compelling the I J to either accept the dubious subpoenas a s g enuine, or base his review solely on h is instincts as to what a B ulg arian subpoena “should” look like?

An implicit assumption of the Second Circuit’s approach is that the ex clusion of documents such as the B unton L etter will lead, not to reliance on capricious information, but to the proliferation of more comprehensive and reliable State Department investig ations. There’s n o reason to believe that will happen. The asy lum unit of t h e Department of State’s Office of Country Reports a n d Asy lum A ffairs “has suffered from long s t a n d i n g resource p roblems.” O ffice o f the I nspector Gen., U .S. Dep’t of S t at e , Report of Inspection: Bureau o f Democracy, Human Rights and Labor 23 (2003). Many of i t s s t affers a re interns, a

nd even its reg ular employ e es are often “pressed into service to work ” o n the Office’s other main responsibility : country rep o r ts. I d

. at 23–24. A nd the c o nsular officers tasked with verify i ng asy lum applicants’ c laims a re also overworked a n d

u n d e r s t a f f ed

. T h e T o ng our L e t t e r e x p r e s s e s t h eA N G O V V

. H O L D E R 25

g overnment’s positio n o n providing additional information about the results of an overseas inv e s t i ga tion: “Such additional demands are further burdens o n Consular Officers in t h e p erformance of their reg ular responsibilities and a re particularly onerous for F SNs who may be subject to local reprisal.” T he State Department tells us it’s doing the best it

can with the sca n t r esources allocated to it and our consular corps abroad.

D emanding that the reports contain a multitude o f additional details, such as “the identity and qualifications o f
t he investig ator(s),” “the objective and ex tent of t h e i n v estig ation” and “the methods used to verify t h e information d iscovered,” see Lin
, 4 59 F .3d at 271, transforms

a process that is swift, efficient and informal into on e that’s ponderous, time-consuming and ex pensive.

I nsisting on these procedures would paraly z e the process, making it impossible for our consular officers to do many o f these investig ations b ecause they ’re too busy filling in all the jots and tittles our sister circuit enshrines as pre-requisites for

a document’s admission. Comply ing w ith such requirements considerably leng thens the time it takes to write most reports, and may make it impossible t o write others for fear o f disclosing sensitive information th at could c ompromise sources or impair relations with local officials.

Nor is it realistic for the g o vernment to produce such information in camera. T hese reports are prepared b y Department of State officials statione d i n foreig n countries, and a r e then turned over to another ag ency in another department, which then releases them to an a dverse p a rty

. These disclosures a

r e mad e i n the contex t of immig r ation
court proc e ed i n gs, not in district c ourt, and the immig r ationA N G O V V

. H O L D E R 26

court, despite its name, is an ex ecutive branch ag ency

. I t has

no cont empt powers a

n d can’t have any one arrested for violati n g i t s orders, including confidentiality orders. See S t e p h e n H

. Le g o m s k y , R e s t r u c t u r i n g I m m i g r a t i o n A d j u dication

, 59 Duke L .J

. 1635, 1674, 1714 (2010); D a n a L eig h Marks, Still a Legal “ C i nderella”? W hy the Immigration Courts R e main an Ill-Treated S tepchild Today

, 59 F ed. L aw., Mar. 2 012, 25, a t 30. T here’s a g oo d c hance the informati o n w i l l fall into the hands of people who have little reg ard f

or U.S. law a

n d find themselves repatriated with

a motive for reveng e. Cons u lar officials forced to d isclose sensitive information in these circumstances would probably leave the information o ut of the report r ather than risk burning their sources, offending local o fficials or losing their lives.

I f we make the job of c ompiling these repo r ts substantially more risky and onerous, the State Department
may stop writing them. The United States g e ts close to 74,000 asy lum cases a y ear, far more than any other industrializ ed nation. S

ee United Nations Hig h Comm’r for Refug ees, Asylum Levels and Trends in Indust r i a lized Countries 3, 8 & n.14 ( 2011). (That’s more than three times the number of Social Security cases the Suprem e Court

c o n sidered massive in Perales ). The use of reports from consular off

i cials g ives the g overnment the ability to check facts and puts at l e a s t s ome constraint o n how far from the truth asy lum ap p l i c a n ts will stray

. Knocking out even this
most basic c heck on f

raud and fabrication would subvert the
asy lum process, g iving charlatans a free pass into the United States.

4. I n a ny event, even if the Second Circuit’s approach

were to e ncourag e more d etailed State Department lett ers,A N G O V V

. H O L D E R 27

such “faith in procedural choreog raphy ” as a truth-seeking device is “fundamentally flawed.” United States v. Balough

, 8 20 F .2d 1485, 1491 (9th Cir. 1 987) (Koz inski, J

. , concurring ). Requiring the D e p artment of State to d isclose

more details will neither materially enhance the reliability o f the resulting report nor d o very much to help asy lum applicants.

W e test this proposition by mod i f y i n g a portion of the B unton L ette r to comply with the requirements that would (presumably

) sa tisfy the Second Circuit; new or modified lang uag e is italiciz ed:

Agent Michael Smith, a foreign service agent with seventeen years of field experience who is fluent in Bulgarian, or dered Vladimir P o p ov, a foreign service national in t h e Embassy’s employ, to visit t h e 5th Police District station i n Sofia in order to seek authenticati o n of the two subpoenas. FSN Popov is a lifelong resident o f Sofia a nd has worked for the Embassy for two years. H e is fluent in Bulgarian a nd speaks conversational English

.

FSN Popov traveled to the s tation and,

once there, s

p o ke to Ludmilla Bogdanovich, who is the supervisor of

personnel records at
t h e station. FSN P opov c onsiders Ms. Bogdanovich a trustworthy source. After she

c o n s u l t e d t h e r e l e v a n t r e c o r d s , M s

. Bogdanovich t old FSN Popov that Captain Donkov, L ieutenant Slavkov and I nvestig ator Vutov have n ever wor k ed for the 5th PoliceA N G O V V

. H O L D E R 28

District. M

s. Bogdanovich a lso told FSN Popov that the case numbers on the subpoenas

were not correct, there was no r o o m 4 on the second floor and n o room 5 on the f irst f loor and that the tel e p h o ne numbers on the subpoenas were incorrect. W hile at the station

, F SN Popov a sked Ms. Bogdanovich for an imprint o f the police station seal

, which he brought back to the consulate. Ag e n t Smith compared it to the seal on t h e two

s u bpoenas and found the official seal to be much larg er.

After hearing FSN P o

pov’s oral report of his mee t ing with Ms. Bogdanovich, Agent Sm ith transmitted the information to the author of this letter by encrypted email.

B e st w e can tell, this r evised letter would comply with the requirements imposed b y the Second Circuit, but would it be much more valuable than what we already have? W e’d know

a bit more about Ag ent Smith, and we’d know the identity o f the person who did the leg work, but how would that help us? W e ’ d also have a name of someone who purportedly provided the information from the B ulg arians, b ut how would that b e of any use? A n gov could still complain that the I J

w as u nable to assess the B ulg arian official’s credibility

, o r

even the credibility of any of the later links in the chain. W e ’ d also know that it was Ag ent Smith who visually compared the seal on the subpoenas w ith the station’s official seal, but how does that bring us closer to the truth?

At this point, we would be faced with a whole new set o f questions: How do we know Popov really went to the policeA N G O V V

. H O L D E R 29

station instead of stopping off in a bar to chug rakia? How did Popov know whether B og d anovich was really the supervisor of personnel records a t the police station? Did he check her identification papers? H ow did Popov as s e s s B og danovich to b e trustworthy

, and h ow can w e be sure he’s rig ht? D id Popov look a t t h e personnel records himself, o r did he take B o g danovich’s word that the three officers never worked there? Can w e be sure that B og danovich c hecked all the relevant records? Can we be sure the purported personnel records w e r e a c curate and complete? How do we know Popov didn’t falsify important d e tails because he was afraid of reprisal or because he hates g y psies? And how can we be

sure Smith is telling the truth if we can’t cross-ex amine him? Did Smith have a full-si z ed c o py of the subpoena when he compared the seals or a shrunken photocopy ?

These difficulties are inherent in try ing to prove up facts related to events that occurred y ears past an d t h o usands o f miles away from where the I J is h olding his hearing

. Short o f transporting all the d eclarants a nd their underly

ing records to the United States for a hearing before an I J
, there will inevitably be g aps that can be bridg ed only by multiple levels of hearsay

.

This is not a pro b l em that plag ues only the g overnment. Almost every piece of e vidence asy lum petitioners p resent in support o f t heir cases w ould be inadmissible if subjected to the rules o f e vidence, especially those pertaining to hearsay : threats they claim to have been subjected to; r acist c omments by the police; reports of st ra n ge people looking for them; letters from family members and others. A brief scan of our caselaw shows it’s pretty much impossible to build an asy lum

case without relying o n e vidence that would be laug hed out of court if presented in a domes tic trial. See, e.g. , Meza-A N G O V V

. H O L D E R 30

Vallejos v. Holder

, 669 F .3d 920, 922 (9th Cir. 2012); Haile

v. Holder

, 658 F .3d 1122, 1124–25 (9th Cir. 2011); Singh v. Holder

, 656 F .3d 1047, 1049–50 (9th Cir. 2011); Hu v. H older

, 652 F

. 3d 1011, 1 013–15 (9th Cir. 2011); Ku m a r v

. Gonzales

, 444 F

. 3d 1043, 1047–48 (9th Cir. 2006).

T a k e, as a small ex ample, the letter from Dan i e l a Mihay lova that Ang ov presented to r e but some of the information in the B u nton L e tter. This is a two-pag e, ty p ed document, with a small emblem and a ty ped address by

way of letterhead. (W e reproduce i t i n t h e Appendix .) I t is addressed “To: W hom it may conce r n” and references Ang ov’s c ase. The letter represents that the “R o m ani B aht F oundation is a leading B ulg a rian non-profit org aniz ation for protection of Roma/Gy

psies human rig h ts, founded in 1996 and leg ally reg istered with B ulg arian court.” Mihay lova purports to be the leg a l prog r ams’ director of the F oundation.

The B I A took this letter seriously and mod i f i e d some o f the I J ’s finding s based on it and other evidence presented by Ang ov. B ut there is absolutely n o evidence in the record that there is any such person as Daniela Mihay lova and, if there is, how she went about obtaining the information detailed in her letter. F or all we know, Ang ov could have printed the letter using his computer and standard word processing software.

Compared to this letter—and the remaining evidence presented by Ang ov—the B unton L e tter seems a parag o n o f reliability

. I t was prepared by g overnment officials trained to perform this kind of investig ation; who have nothing to g ain by g iving false information; and w hose conduct is cl o t h ed

w ith the presumption of reg ularity that attaches to a l l
g overnment actors. Cf. Perales

, 402 U.S. at 402–06. The B unton L etter encloses five photog r aphs depicting locationsA N G O V V

. H O L D E R 31

mentioned in Ang ov’s asy lum petition, which c onfirms that

someone from our consulate traveled to those locations a n d made a personal inspection.

The B unton L etter also g ives specific r easons for doubting the authenticity of the addresses and p oints to several problems with the subpoenas. I t is n ot an unsupport e d assertion that Ang ov is a liar; it is a rational, apparently objective recital of observed facts. At the very least, we c a n b e sure that there is a B unton and a Tong o ur, and that they c an be disciplined or prosecute d i f t h ey neg lig ently or d eliberately f alsified their reports. And we can

r e a sonably presume that, in preparing their reports, B unton and Tong our relied on trained State Department officers a nd
ag ents who are themselves s u bject to discipline o r prosecution for incompetence or corruption.

Compare th i s t o the letter from Mihay lova (assuming there even is a Mihaylova): I t comes from some o n e w ho cannot be disciplined or prosecuted in case of a lie, and who has not been screened f

or competence, h onesty or r eliability

. I t encloses no pictures or other doc umentary evidence. I t doesn’t e x plain h ow the facts asser t e d were g athered or b y whom. I t doesn’t even c laim t o be based on first-hand knowledg e, r a ther than h e a r s a y o r rumor. The letter simply makes a series of bald factual assertions without any support. Even assuming the letter is g enuine (in the sense that it w a s actually written by its purported sig natory in B u lg aria), the I J and the B I A have absolutely n o way to evaluate how accurate or objective it is.

I n an environment where it’s p r e tty much impossible to obtain first-hand accounts of most of the relevant f a c t s, should we require the g overnment to fig ht an uphill battle onA N G O V V

. H O L D E R 32

a slippery slope with one leg a nd bot h ar m s t ied behind its back, while its adversary g ets to us e c l e a t s and brass knuckles? Of course not. I t w ould be the heig ht of cog nitive dissonance to hold the United States to standards of p r o o f derived from domestic litig a tion while allowing petitioners to present any

thing and e very

thing that doesn’t b ear the watermark “F org ery

Purchased on the B lack Market.”

F urthermore, contrary to what the dissent and the Second Circuit mig ht believe, the consequence of a rule ex cluding the consideration of d ocuments such as the B unton L etter will not be to allow more of the world’s oppressed into the land of the free. Rather, it favors the canny , the dishonest, the braz en and those who have the m e a ns and connections to purchase

or create fraudulent documents, such as Ang ov’s compatriot, Pavlov. See p. 13–14 supra

. Nor d oes such a rule ultimately help asy lum seekers, a s it’s hard to believe that Cong ress will long allow the prog r am to continue wh e n i t rewards people who lie their way into the United States. Eventually

, Cong r ess and the public will c atch o n that asy lum has become

a fast-track vehicle for immig ration f r a u d

, and the asy lum
statute w ill b e repealed or amended so as t o make it even

more difficult for honest asy lum seekers to obtain relief. The ultimate victims will be the tired, poor, huddled masses w ho will find the g o lden door slammed in their faces.

* * *

W e conclude on this record that the I J a c t ed within his discretion when he admitted the B unton L etter into evidence and relied on it to find that the subpoenas Ang ov submitted

were fraudulent. The adverse credibility finding based on the fraudulent subpoenas was supported by substantial evidence. B ecause Ang ov’s claim is based on his mistreatment b y theA N G O V V

. H O L D E R 33

B ulg arian p olice, the fact that the subpoenas were fraudulent “g oes to the h eart of [ Ang ov’s] cl a i m o f p ersecution.” See Rizk

, 629 F .3d at 1087–88. F urthermore, Ang ov’s testimony is not credible, and he d oes n ’t p resent other evidence that
meets his b urden to show t hat it’s “‘more likely than not’”
t h a t h e would be tortured if sent back to B ulg aria. See Shr e s t h a v. Holder

, 590 F .3d 1034, 1048 ( 9th Cir. 2010). Consequently

, the I J and B I A decisions d eny ing A n g ov asy lum, withholding of removal and protection u n d e r the Convention Ag ainst Torture must stand.

P ETITION DENIED.A NGOV V

. H OLDER 34A NGOV V

. H OLDER 35A N G O V V

. H O L D E R 36

THOMAS, Chief J udg e , dissenting :

I would join the Second Circuit in resolvin g t h e issue before us. Unsworn, u nauthenticated, hearsay lett e r s— p repared for litig ation by the g overnment and not subject t o

a n y form o f cross-ex a mination—cannot form the sole basis for deny ing asy lum to an otherwise qu a l ified applicant. Therefore, I

must respectfully

dissent.

I

A

F ive of our sister circuits have held that the g overnment may not d eny a sy lum solely on the basis of conclusory letters prepared f

or litig ation in reliance o n m ultiple lay ers o f unauthenticated hearsay

, without aff ording the p etitioner

some rig ht of confronting the charg es. F our of those c ircuits reached this result o n constitutional g rounds, holding that the admission of unauthenticated consular lett e r s ag a inst an asy lum a pplicant violates that applicant ’ s procedural d ue process rig hts. Banat v

. Holder

, 5 5 7 F.3d 886, 892–93 (8th Cir. 2009); Anim v. Mukasey

, 535 F .3d 243, 256–58 (4th Cir. 2008); Alexandrov v. Gonzales

, 442 F .3d 395, 407 (6th Cir. 2006); Ezeagwuna v. Ashcroft

, 325 F .3d 396, 405–08 (3d Cir. 2003). The S e c o n d Circuit declined to reach the constitutional issue but held that such letters, standing alone, could n o t provide a basis for deny ing asy lum u nder the substantial e vidence standard because they lacked suffici e n t indicia o f reliability and trustworthiness. Lin v. U.S. Dep’t of Justice
, 459 F .3d 255, 2 68–72 (2d Cir. 2006); see also Balachova v. Mukasey

, 547 F .3d 374, 382–83 (2d Cir. 2 008) (apply ing Lin ). Althoug h I w ould resolve the present case p u r ely on statutory g rounds, as the Second Circuit did, t h eA N G O V V

. H O L D E R 37

cases decided by our other sister circuits also provide useful
g uidance here.

I n Banat , for instance, the E ig h th Circuit rejected a n I J ’s

r e liance on a consular letter that c ited an unidentif i e d i nvestig ator from the U.S. embassy in B eirut because the letter contained “multiple levels of hearsay ” and omitted any mention of the investig ator’s qualificatio n s , ex perience, o r “contact.” 557 F .3d a t 891–92. The c o urt acknowledg ed that “overseas investig ations by State Depa r t ment officials concerning the authenticity o f documents purportedly orig inating in foreig n c o untries are often necessary for the adjudication of a

n asy lum c laim, ” i d

. at 890; however, it concluded that “ the I J ’s reliance o n the State Department letter, which provided no details about the investig ation that would allow the I J to assess the investig ation’s reliability o r trustworthiness and which contain e d multiple levels o f hearsay

, violated B anat’s rig ht to a f u n d a mentally fair hearing

. ” Id. at 893. The court reasoned:

Reliance on reports o f investig ations that do not provide sufficient information about how
t h e i n v e s t i g a t i o n w a s c o n d u c t e d a r e fundamentally unfair b ecause, without that informati o n , it is n early impossible for the immig ration court to assess the r eport’s probative value and the asy lum applicant is
not a llowed a meaning ful o p portunity to rebut the investig ation’s alleg ations.

Id . at 891.

Th e Fo u r t h Circuit relied on similar log ic in Anim when it rejected a State Depa r t ment letter authored by the sameA N G O V V

. H O L D E R 38

official involved in our case. The court noted that the official’s letter was “comprised entirely of multip l e hearsay statements.” 535 F .3d at 257. I t also p ointed out that “letter does n ot ex plain how B u nton received the information she relates, nor does the letter disclose t h e identities of some o f the individuals involved in the chain of communication.” Id .;

see also id. (“W ithout the details o f the inves t i ga tion, it is impossible for an immig ration judg e, the B I A, or a c ourt to evaluate the reliability of the letter’s conclusions.” (citations omitted)). B ased on these deficiencies, the Anim court concluded that “the B u nton letter contains insufficient indicia of reliability a

nd, as a result, its use was f u n d a m en tally unfair.” Id. at 256.

The courts in both Ani m and Banat relied heavily on the Second Circuit’s reasoning in Lin
, 4 59 F .3 d a t 268–72. I n Lin
, the Second Circuit rejected a c o nsular report almost identical to the letter at issue here. T h e consular r e port was based on the opinions of Chinese g overnment officials who,

as the Lin court noted, “appear to have powerful incentives to be less than candid on the subject of their go v ernment’s persecution of political dissidents.” Id. at 269–70. The court also observed that the report lacked o ther traditional markers of reliability

, nam e l y : “(i) the identity and q ualifications o f the investig ator(s); (ii) the objective and ex t en t of the investig ation; and (ii i ) the methods used to verify the information discovered.” Id. at 271. The Lin court distilled these factors from the Department of J ustice’s own g uidelines for e valuating the reliability of documents produced

overseas. 1 No t i n g that the consular letter failed to satisfy

1 T h e J u stice Dep artm en t’ s g u id elin es stated th at, in th e case o f a f rau d u l en t d o cu m en t, th e “ rep ort m u st co n tain

, at a m in im

u m : (i) th e n am e

an d title o f

th e in v estig ato r; (ii) a statem en t th at th e in v estig ato r is f lu en tA N G O V V

. H O L D E R 39

these basic criteria, the court held that t h e report was “insufficiently

detailed to permit a reviewing court to assess i ts reliability ” and, as such, c ould not support a finding th at t he petitioner had forg e d documents submitted with h i s asy lum application. Id. at 270.

Critically

, the Second Cir c u i t reached this conclusion a s

a stat u t o ry matter, holding that the consular r eport was “hig hly unreliable and therefore insu f f icient to satisfy the substantial evidence requirement.” I d. at 269. The court noted that the Third and Six th Circuits had recently rejected similar reports as procedural due p rocess violations 2 but,

in th e relev an t lan g u ag e(s) o r th at h e o r sh e u sed a tran slato r w h o is f lu en t in th e relev an t lan g u ag e(s); (iii) a n y o t h er statem en ts o f th e co m peten cy

o f th e in v estig ato r an d th e t r a n s l ato r d eem ed ap p ro p riate u n d er th e circu m s tan ces (su ch as ed u catio n , y ears o f ex p erien ce in t h e f ield

, f am iliarity w ith th e g eo g rap h ic t errain

, etc.); (iv ) th e sp ecif ic o b j ectiv e of th e in v estig atio n ; (v ) th e lo catio n (s) o f an y co n v ersatio n s o r o th er search es

co n d u cted ; (v i) th e n a m e ( s ) an d title(s) o f th e p eo p le sp o k en to in th e

c o u r s e o f th e in v estig atio n ; (v ii) th e m eth o d u sed to v erif y th e in f o rm atio n ; (v iii) th e circu m s tan ces, co n ten t, an d resu lts of each relev an t

co n v ersatio n o r s earch [ ]; an d (ix ) a statem en t th at th e Serv ice in v estig ato r is aw are o f t

h e co n f id en tiality p ro v isio n s f

ou n d in 8 C.F.R. § 20 8 .6 .” Mem o ran d u m f

ro m B o C o o p er (“ C o o p er Mem o ”), Gen

. Co u n sel, Im m i g ratio n & Natu ralizatio n

Serv
., to J ef

f rey W eiss, Dir., Im m ig ratio n & Natu ralizatio n

Serv . Of f i ce o f In t ’ l A f

f airs, Co n f id en tiality o f

A sy lu m A p plicatio n s an d Ov erseas Verif icati o n o f Do cu m en ts an d A p p licatio n In f o rm atio n (J u n e 21
, 2 0 0 1 ), ava ila b le a t h ttp ://j u d iciary .h o u s e.g o v / leg acy /8 2 2 3 8 .p d f

at 3 9

– 4 5

.

2 S ee Alexa nd

ro v , 4 4 2 F.3 d at 4 0 7 (h o ld in g th at m em o ran d a p rep ared b y

a U.S. em

b assy o f f i cial i n So f

ia d id “ n o t m eet o u r stan d ard s of
tru s tw o rth i n ess an d reliab ility an d w ere th eref o re im p ro p erly relied u

p on b y t h e im m ig ratio n co u

rt”); Ezea g w u n a , 3 2 5 F .3 d at 4 0 6

– 0 8 (h o ld in g th at

a letter prep ared b y a U .S. em b assy o f f icial in Yao u n de co n tain ed

“ m u ltip l e h earsay o f th e m o st t ro u b lin g k in d” an d

, th eref

o re, w as “ n eith er reliab le n o r tru s tw o rth y ”).A N G O V V

. H O L D E R 40

ultimately

, the Lin court h eld that it was u nnecessary to reach the constitutional issue. Id. ( “ A lthoug h we find the log ic o f these cases [ concerning p rocedu r a l due process] persuasive,

we do not reach the constitutional issue presented because the

s tatutory standard of review requires vacatur.” (emphasis i n orig inal))

. T he c ourt later took the same approach in Balachova

. 547 F .3d at 383 (concludi ng that a consular report that “contain[ e d] n o information concerning the qualifications of the investig a tors, the identity of the Russian officials who p repared the respo nse to the consular inquiry

, or the methods, if any , used to verify the information supplied by the foreig n official” was “unreliable and cannot contribute to a finding of substantial evidence”).

Our c ase cannot be disting uished from Lin or Balachova

. The I J relied on a short, u nsworn letter from a State Department official to support his finding that Ang ov forg ed parts o f his asy lum application. The letter was devoid of any information concerning the methodolog y employ ed i n the investig ation or the qualifications of t h e investig a tors. I nstead, it was bas e d on the unauthenticated, hearsay
statements of an unidentified B ul g a r i an police official w ho worked at the police station where Ang ov claims to have been severely beaten. L ike t h e g overnment o fficials in Lin
, that police official—whose dep a r t ment had been accused o f ethnically motivated b rutality —had a strong incentive to be “less than candid.” 459 F .3d at 269.

I n sum, the B unton L etter was comprise d o f conclusory
statements o f fact, none of which were supported by the basic information required under Lin and B a lachova

. W e are left,

as was the Second Circuit, with a d o c u ment that is “insufficiently detailed to permit a reviewing court to assess its reliability .” Lin , 459 F

. 3d at 270. I n d eed, in many way s,A N G O V V

. H O L D E R 41

there is less information in the B unton L etter than in the letters rejected as unreliable by ou r s ister circuits. According ly

, because the B u nton L e t t e r lacks the indicia o f reliability set forth in Lin
, the ag ency could not have r e lied on it under the substantial evidence standard.

B

Neither Lin nor Balachova d i scussed the specific procedural p rotections g uaranteed to aliens in removal proceeding s under 8 U .S.C. § 1 229a(b)(4)(B ). That provision, however, offers independent g rounds f o r barring the g overnment from rely ing on unsworn, u nauthenticated hearsay letters as the sole b a s i s for deny ing an alien relief from removal.

Section 1229a(b)(4)(B ) ex pressly provides that every alien “shall have a reasonable opportunity to ex amine the evidence ag ainst [ him or her] , to present evidence on [ his or her] own b ehalf, and to cross-ex amine witnesses p resented b y the G overnment” dur ing removal proceeding s. See also 8 C.F .R. § 1240.10(a)(4) (requiri n g the I J to “[ a] dvise the respondent that he or she will have a reasonable opportunity
to ex amine and object t o the e vidence ag ainst him or her, to p resent e vidence in his or her own behalf a n d t o

cross-ex amine witnesses presented by the g overnment”). W e have re c o gn i z ed the “importance o f the rig ht to confront evidence and cross-ex a mine witnesses” under this statute. 3

3 T h e m aj o rity su g g ests t

h at, becau se f

oreig n o f f icials are n o t th em selv es

“ am en ab le t o cro s s- ex am in atio n ,” allo w in g State Dep artm en t o f f icials to b e cro ss -e x am in ed w

h en th ey “ in escap ab ly rely ” o n in f o rm atio n f

ro m f o reig n o f f icials w o u l d n o t sig n if

ican tly en h an ce th e cred i b i lity o f th at in f o rm atio n

. Slip Op

. at p

. 1 1. T h i s v iew o v e r l o o k s th e f act th at StateA N G O V V

. H O L D E R 42

Cinapia n v. Holder

, 567 F .3d 1 067, 1074 (9th Cir. 2 009) (listing “se v e r a l cases” hig hlig hting the importance of this rig ht). As we ex plained in those cases, the “ p u r p ose of this statutory g u arantee cannot be fulfilled

. . . if the g overnment’s choice whether to produce a w i t n e ss or to use a hearsay
statement is wholly unfet t e r ed.” Baliza v. INS
, 709 F .2d 123 1
, 1 2 34 (9th Cir. 1983). Rather, to comply with this provision, the g overnment must “make a reasonable effort to present the witness” f

or cross- e x amination. Cinapian
, 567 F .3d at 1074.

The majority asserts that the “g overnment here did make

a reasonable effort to obtain a witness” for cross-ex amination but, u ltimately

, was sty

mied by the State Department’s p olicy of not releasing f

o l low-up information about overseas investig ations

. S

e e s upra , Slip Op. at p. 11. This “effort”
cannot be sufficient to satisfy the g o vernment’s burden under the statute. I ndeed, allowing one ex e cutive branch ag ency to rely on another ex e cutive branch ag e n cy ’s b l a n ket policy o f refusing to provide certain information is t antamount to g ranting the g overnment the kind of unfettered d iscretion we repudiated in Baliza

. As for the p o licy i tself, whatever log istical obstacles mig ht have once justified the S t ate Department’s blanket refusa l t o p r o d u c e o v e r s eas g overnment witnesses for removal proceeding s, those obstacles can surely

Dep artm en t of

f icials w o u ld be less lik ely to accep t u n reliab le in f o rm atio n

as tru e if th ey k

n ew th at th ey m i g h t later be su b j ect to cro s s- ex am in atio n

. Fu rth erm o r e, if State Dep artm en t o f f icials d id rely on in f

o rm atio n

o b tain ed f

ro m f o r e i g n o f f icials, th ey w o u l d b e p rep ared to ex p lain w h y th at in f o rm atio n w as tru stw o rth y

.A N G O V V

. H O L D E R 43

be overcome in an ag e of video conferenci n g. 4 I ndeed, federal law specifically

allows I J s to conduct entire hearing s

v i a t e l e p h o n e o r v i d e o c o n f e r e n c e

. 8 U

. S

. C

. § 1229a(b)(2)(A); see also 8 C.F .R. § 1003.25(c) (“An I mmig r a tion J u d ge may conduct hearing s throug h video conference t o t h e same ex tent as h e or she may conduct hearing s in person.”).

B e cause the g overnment did not make a reasonable effort
to produce B unton for cross-ex amination, I would hold that its reliance on the B unton L et t er violated Ang ov’s rig hts under § 1229a(b)(4)(B ). 5

C

The g o vernment arg

u es that the B u nton L etter should be credited as trustworthy by emplo y i n g the presumption o f
reg ularity —that is, that g o vernment officials accurately perform their reporting duties without bias. See Espinoza v.

4 A t th e v ery least, th e State Dep artm en t sh o u ld b e req u ired to p ro d u ce

so m e sp ecif

ic h ard sh ip o r reaso n w

h y it can n o t p ro d u ce t

h e w itn ess f

or

cro ss- ex am in atio n , rath er th an rely in g o n

a g en eral p o licy

.

5 T h e fo u r o f o u r sister circu its to reso lv e th i s issu e o n co n stitu tio n al
g ro u n d s d id n o t d iscu ss t h e p ro ced u r a l rig h ts g u aran teed u n der § 1 2 2 9 a(b )(4 )(B ). Ho w ev er, th e reaso n in g t h ey u sed in co n clu di n g (u n an i m o u sly ) th at th e ad m issio n o f u nau th en ticated

, h earsay letters d u rin g rem o v al pro ceed in g s v io lates an alien ’ s p ro ced u ral d u e p ro ce s s rig h ts co u n sels t o w ard h old in g th at su ch letters also v io l a t e th e alien ’ s statu to ry rig h ts u n d er § 1 22 9 a(b )(4 )(B ). W e h av e reco g n i zed th at t h e du e p ro c e ss rig h t is clo sely related to th e statu t o ry rig h t in t h is co n tex t. S

ee Bo n d a ren ko v. Ho ld

er , 7 3 3 F .3 d 8 99
, 9 0 7 (9 th Cir. 2 0 1 3) (“ T h e du e p ro cess rig h t, i n co rp o ra ted in to 8 U.S .C. § 1 2 2 9 a ( b ) ( 4) ( B)

, in c l u d e s,

am o n g o t h er t h in g s, ‘ a reaso n ab le o p p o rtu n ity to ex am in e th e ev id en ce ag ain st th e alien .’ (em

p h asis ad d ed ; citatio n s o m itted )).A N G O V V

. H O L D E R 44

INS
, 45 F .3d 308, 310 (9th Cir. 1995) (holding that “information on an authenticated immig ration form is presumed to be reliabl e i n t h e absence of evidence to the contrary presented by

the alien”).

However, the presumption o f reg ularity does n ot a pply whe n the source of information “was neither a g overnment

o f f i c i a l n o r t h e s u b j e c t o f t h e r e p o r t

. ” Hernandez-Guadarrama v. Ashcroft

, 394 F .3d 674, 6 8 1 n.9 (9th Cir. 2 0 0 5) (citing Espinoza
, 4 5 F .3d at 310). The key hearsay statement in t h e B unton L etter comes from a B ulg arian police employ ee, not a U .S. g overnment official o r Ang ov. Statements made by third persons under no business duty to r eport are not entitled to the presumption of reliability and cannot be considered subject to the presumption, even if included in a document tha t e njoy s such a presumption. United States v. Pazsint
, 703 F .2 d 4 20, 424-25 (9th Cir. 1983); see also Pouhova v. Holder

, 7 26 F .3d 1007, 1014–15 (7th Cir. 2013) (rejecting application o f p resumption o f reliability to hearsay statements of third parties rec o rded in official d ocuments); Jordan v. Binns
, 71 2 F .3d 1 1 23, 1133 (7th Cir. 2013) (“[ T ] he presumption of reliability that serves

as the premise for the public-records ex ception doe s n o t attach to third parties who themselves have n o public duty to report.”).

Second, the presumption of reliability

, similar t o the
tr a ditional hearsay ex ception for public records, a pplies to d o c u m e n t s “ p r e p a r e d i n a c c o r d a n c e w i t h n o r m a l recordkeeping requirements.” Espinoza
, 45 F .3d at 310; see also Lopez-Chavez v. INS
, 2 59 F .3d 1176, 1 181 ( 9 t h Cir. 2001) (“I t must be shown that the d ocum e n t h a s been certified by the I

NS District Director as a true an[ d] accurate reflection of I

NS records.”). The B u nton L etter, summariz ingA N G O V V

. H O L D E R 45

the results of an investig ation involving multiple individuals and carried out at the behest of a party involved in litig ation, is not comparable to an authenticated immigr a t i on form

ro u t inely filled out by border ag ents. Espinoza
, 45 F .3d at 309. I t is not a “business record” which is prepared in t h e usual and ordinary course of business. I t w a s not authenticated or c e r t i fied. I t did n ot even conform with the
ag ency ’s o wn reporting procedures, as described and set forth in the Co o p er Memo. Thus, the ad hoc B unton L etter does
not qualify a s a g o vernment document produced in accordance with reg

ular ag ency procedure.

Fo r these reasons, I find the g o vernment’s arg ume n t s unpersuasive.

I I

Adjudicating asy lum claims is necessaril y an imperfect endeavor. W itnesses to alleg ed foreig n persecution are rarely available; documents a

re often impossib l e to locate. The immig ra t i o n judg e is o ften left with assessing witness credibility as the only means of res o l v i n g the r equest for relief. W e are often limited to seeing throug h a g lass, darkly

.

As to po s t-REAL I D Act asy lum seekers, the I J may requ ire corroboration, even when presented with credible testimony

. See Aden v. Holder

, 589 F

. 3d 1040, 1044 ( 9th Cir. 2009) (“W here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony

, such evidence mus t be provided unless the applicant does not h ave the e v idence and cannot reasonably obtain the evidence.” (quoting 8 U.S.C. § 1158(b)(1)(B )(ii))). W e have sustained the B I A’s denial of relief founded on theA N G O V V

. H O L D E R 46

inability of an asy lum seeker to obtain corroboration. Shrestha v. Holder

, 590 F .3d 1034, 1047–48 (9th Cir. 2010).

I n the post-REAL I D Act world, when corrobo r a ting evidence has a ssumed mor e importance, it is not unfair o r unduly burdensome to r equire the go v e rnment to identify bas i c , rudimentary information about its sources when it challeng es c orroborating evidence so that the I J can properly weig h it. The information our sister circuits have demanded is modest. They d o not require that every detail be uncovered

or e v e r y riddle solved, they merely ask that very basic foundational questions—already i n the hands of the Ex ecutive B ranch—be answered. The Ex ecutive B ranch invests sig n i ficant resources in forensic document analy sts, who provide detailed declarations in immig ration cases. I t is
not much to a sk that in the case o f r o u t i n e foreig n factchecking

, the g overnment simply tell us how it a c q u ired the facts upon which it asks us to deny asy lum.

The alternative is a decision founded solely on anony mous hearsay

, o ften—as in this case—produced by the
very foreig n g overnment actors the asy lum-seeker a ccuses o f persecution. W e should be wary of re l y i ng on “secret informers, whisperers and talebearers” to decide leg al rig hts in this contex t, especially w hen their word is used as the sole b a s i s to d eny relief to an otherwise qualified applicant. See Parker v. Lester
, 227 F .2 d 708, 719 (9th Cir. 1 955) (cautioning ag ainst rely ing o n u n trustworthy sources in awarding security clearances to Coast Guard e mploy ees). The immig ration sy stem is fraug ht with e noug h risk of error. W h en it is r easonably possible, we need to minimiz e that risk.

I respectfully

dissent.