FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NIKOLAY IVANOV ANGOV,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 07-74963

Agency No.

A096-227-355

ORDER AND

AMENDED

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 5, 2012—Pasadena, California

Filed December 4, 2013

Amended June 8, 2015

Before: Sidney R. Thomas, Chief Judge, Alex Kozinski

and Stephen S. Trott, Circuit Judges.

Opinion by Judge Kozinski;

Dissent by Chief Judge Thomas
2 ANGOV V. HOLDER

SUMMARY*

Immigration

The panel withdrew its prior opinion and dissent, filed an

amended opinion and dissent, denied a petition for panel

rehearing, and denied on behalf of the court a petition for

rehearing en banc in a case in which the Board of

Immigration Appeals denied an application for asylum and

related relief on adverse credibility grounds based on a State

Department overseas investigation indicating that petitioner

had submitted fraudulent evidence.

The panel held that, on the record, the immigration judge

acted within his discretion in admitting into evidence a letter

prepared by the Director of Department of State’s Office of

Country Reports and Asylum Affairs in Bulgaria (“Bunton

Letter”), and in relying on it to find that police subpoenas

petitioner submitted were fraudulent.

The panel held that as an alien who never formally

entered the United States, petitioner had no constitutional

right to procedural due process, and thus the IJ’s reliance on

the Bunton Letter could not violate procedural due process. 

The panel held that the IJ did not violate petitioner’s statutory

rights to examine evidence or cross-examine witnesses by

admitting the letter.

The panel also held that the IJ’s adverse credibility

finding based on the fraudulent subpoenas was supported by

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ANGOV V. HOLDER 3

substantial evidence and went to the heart of petitioner’s

claim of persecution by the Bulgarian police, and that he

failed to present other evidence to meet his burden of proof.

Dissenting, Chief Judge Thomas would hold that

unsworn, unauthenticated, hearsay letters—prepared for

litigation by the government and not subject to any form of

cross-examination—cannot form the sole basis for denying

asylum to an otherwise qualified applicant. 

COUNSEL

Nicolette Glazer (argued), Law Offices of Larry R. Glazer,

Century City, California, for Petitioner.

Gregory G. Katsas, Assistant Attorney General, Barry J.

Pettinato, Assistant Director, Jesse Lloyd Busen (argued) and

Charles E. Canter, Attorneys, United States Department of

Justice, Civil Division, Washington, D.C., for Respondent.

ORDER

The opinion and dissent filed on December 4, 2013, and

published at 736 F.3d 1263, are hereby withdrawn and

replaced by the amended opinion and dissent filed

concurrentlywith this order. With these amendments, Judges

Kozinski and Trott have voted to deny the petition for panel

rehearing, Judge Kozinski has voted to deny the petition for

rehearing en banc and Judge Trott has so recommended. 

Chief Judge Thomas has voted to grant the petition for panel

rehearing and the petition for rehearing en banc. The full

court has been advised of the petition for rehearing en banc,
4 ANGOV V. HOLDER

and no judge requested a vote on whether to rehear the matter

en banc. Fed. R. App. P. 35. The petitions for panel

rehearing and rehearing en banc are denied. No further

petitions for panel rehearing or rehearing en banc will be

entertained.

OPINION

KOZINSKI, Circuit Judge:

Does an immigration judge err by relying on a State

Department investigation of an asylum petitioner’s claim?

I. BACKGROUND

Nikolay Angov, a Bulgarian citizen, claims he was

persecuted by the Bulgarian government because he is

Roma.

1 He alleges repeated abuse at the hands of the

Bulgarian police, including beatings, false accusations of

crimes and illegitimate arrests. After three years of this

treatment, he fled Bulgaria and sought asylum in the United

States.

An IJ conducted asylum hearings in early 2004, during

which Angov presented several documents, including two

Bulgarian subpoenas that ordered him to appear at a Sofia

police station. The immigration judge (“IJ”) allowed the

government to obtain a State Department investigation of

Angov’s allegations. See 8 C.F.R. § 208.11. The

investigation was conducted by our consulate in Sofia, and

1 Angov’s brief refers to him as “Roma” or “gypsy” interchangeably. So

do we.
ANGOV V. HOLDER 5

the results were summarized in a letter signed by Cynthia

Bunton, Director of Department of State’s Office of Country

Reports and Asylum Affairs.

The IJ admitted the Bunton Letter, which stated that the

Embassy had contacted “an official in the Archive

Department at the 5th Police District in Sofia.” The official

found a number of errors in the subpoenas, suggesting that

they were forgeries: (1) Three officers named in the

subpoena—Captain Donkov, Lieutenant Slavkov and

Investigator Vutov—never worked for the police department;

(2) the case and telephone numbers were wrong; and

(3) although the subpoenas mentioned room 4 on the second

floor of the department and room 5 on the first floor, there are

no rooms by those numbers. The official also explained

(4) that the seal on the subpoena was too small.

Bunton also stated that the embassy investigator (5) was

unable to locate Angov’s claimed past residences; and (6) that

the neighborhood where Angov lived was only twenty to

thirty percent Roma, though Angov claimed that he lived in

a “gypsy neighborhood.” Attached to the letter were five

photographs of the places the investigator had visited while

trying to verify the addresses.

Angov’s industrious lawyer submitted a plethora of

rebuttal evidence, including photos, maps, an article about

Angov’s neighborhood and a letter apparently signed by

someone named Daniela Mihaylova, who identified herself as

the legal programs director of a Roma human rights

organization in Bulgaria. Angov also argued that, without the

opportunity to cross-examine the investigator, the admission

of the Bunton Letter would violate his statutory and

constitutional rights.
6 ANGOV V. HOLDER

In response to Angov’s objection, the government

attorney asked the State Department to produce an employee

to testify about the investigation. State responded with a

letter authored by Nadia Tongour, Bunton’s successor. The

Tongour Letter provided some general background

information on State’s investigation procedures, but

explained that it’s State’s policy to refrain from providing

further specific information about an overseas investigation.

Based on the Bunton Letter, the IJ made an adverse

credibility finding and denied Angov’s applications for

asylum, withholding of removal and relief under the

Convention Against Torture. The Board of Immigration

Appeals (“BIA”) adopted and affirmed the IJ’s ruling denying

relief, and his determination that the subpoenas are

fraudulent. The BIA also denied Angov’s motion to

supplement the record with a recent Sixth Circuit opinion that

Angov claimed constituted new evidence of a “pattern and

practice” of law-breaking by officials in the Sofia consulate. 

See Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir. 2006).

II. ANALYSIS

A. Motion to Remand

Angov claims the BIA abused its discretion by denying

his motion. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098

(9th Cir. 2005). His brief before the BIA spent just two

sentences explaining this argument:

Respondent respectfully submits a copy of

Alexandrov v. Gonzales to supplement the

record in this case. The document is

submitted to document a pattern and practice
ANGOV V. HOLDER 7

of procedural and substantive violations of the

law and applicable regulations by the

consulate in Sofia during overseas

investigations and in divulging the identity of

asylum applicants to the authorities in

Bulgaria in violation of C.F.R. 208.6 [sic].

“Since a motion to remand is so similar to a motion to

reopen, the motion to remand should be drafted in conformity

with the regulations pertinent to motions to reopen . . . .” 

Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1988) (internal

quotation marks omitted). The applicable regulation provides

that a motion to reopen shall state “the new facts that will be

proven at a hearing to be held if the motion is granted” and be

supported by affidavits or other “evidentiary material.” 

8 C.F.R. § 1003.2(c)(1). But Angov didn’t provide any

evidence supporting his motion nor did he even explain why

he believed that section 208.6 had been violated.2 The BIA

did not abuse its discretion in denying Angov’s motion to

remand.

B. Admission of the Bunton Letter

Angov claims that the admission of, and the IJ’s and

BIA’s reliance on, the Bunton Letter violated his statutory

and constitutional rights. See 8 U.S.C. § 1229a(b)(4)(B);

2

8 C.F.R. § 208.6(a) provides that “[i]nformation contained in or

pertaining to any asylum application . . . shall not be disclosed without the

written consent ofthe applicant.” Angov argues that Alexandrov “exposed

the improprieties that have riddled overseas investigations in the Sofia

consulate,” including that investigations were often conducted by foreign

service nationals, that someone other than a consular officer could have

authored embassy reports and that consular officials often signed reports

written by others. None of these arguments were presented to the BIA.
8 ANGOV V. HOLDER

8 C.F.R. § 1240.10(a)(4); Cinapian v. Holder, 567 F.3d 1067,

1074–75 (9th Cir. 2009). In considering Angov’s argument,

we review the IJ’s decision, except for the portion that the

BIA didn’t clearly adopt—here, the IJ’s conclusion that the

Department of State’s inability to verify Angov’s addresses

supported an adverse credibility finding. See Joseph v.

Holder, 600 F.3d 1235, 1239–40 (9th Cir. 2010). On that

issue, we review the BIA’s decision.

While we review legal questions de novo, “[t]he BIA’s

interpretation and application of the immigration laws are

generally entitled to deference.” Hernandez-Mancilla v.

Holder, 633 F.3d 1182, 1184 (9th Cir. 2011); Zetino v.

Holder, 622 F.3d 1007, 1011–12 (9th Cir. 2010). The

agency’s factual findings—such as its adverse credibility

determination—are reviewed for substantial evidence and can

be reversed only if the evidence “compels” a contrary

conclusion. See Rizk v. Holder, 629 F.3d 1083, 1087–88 (9th

Cir. 2011) (emphasis omitted).

(i) Due Process

Angov claims that the IJ’s reliance on the Bunton Letter

violated his constitutional right to procedural due process. 

But Angov has no such right. He is an alien who has never

formally entered the United States. He presented himself at

the San Ysidro port of entry without valid entry documents

and sought asylum. “[A]n alien seeking admission has not

‘entered’ the United States, even if [he] is in fact physically

present.” Kwai Fun Wong v. United States, 373 F.3d 952,

971 (9th Cir. 2004). “[O]ur immigration laws have long

made a distinction between those aliens who have come to

our shores seeking admission . . . and those who are within

the United States after an entry.” Leng May Ma v. Barber,
ANGOV V. HOLDER 9

357 U.S. 185, 187 (1958). Aliens “who have once passed

through our gates, even illegally,” are afforded the full

panoply of procedural due process protections, and “may be

expelled only after proceedings conforming to traditional

standards of fairness.” Shaughnessy v. United States ex rel.

Mezei, 345 U.S. 206, 212 (1953). But those, like Angov, who

have never technically “entered” the United States have no

such rights. Id. For Angov, procedural due process is simply

“[w]hatever the procedure authorized by Congress” happens

to be. Id. (internal quotation marks omitted); see also Landon

v. Plasencia, 459 U.S. 21, 32 (1982) (“[A]n alien seeking

initial admission to the United States requests a privilege and

has no constitutional rights regarding his application . . . .”).

Angov’s claim of a procedural due process violation

simply can’t be squared with the Supreme Court’s teachings

in Mezei and Landon, nor with our circuit’s settled precedent. 

See Barrera-Echavarria v. Rison, 44 F.3d 1441, 1449 (9th

Cir. 1995) (“[E]xcludable aliens have no procedural due

process rights in the admission process . . . .”).3

3 We note that four circuits have held that reliance on documents like the

Bunton Letter in asylum proceedings violates due process. See Banat v.

Holder, 557 F.3d 886, 892–93 (8thCir. 2009); Anim v. Mukasey, 535 F.3d

243, 256–58 (4th Cir. 2008); Alexandrov, 442 F.3d at 407; Ezeagwuna v.

Ashcroft, 325 F.3d 396, 405–08 (3d Cir. 2003). Because Angov does not

have a constitutional right to procedural due process, that question is not

before us. We also note that two other circuits have held that asylum

applicants like Angov are entitled to certain “minimumdue process” rights

in the application of their statutory rights. See Marincas v. Lewis, 92 F.3d

195, 203–04 (3d Cir. 1996); Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.

1984); see also Meachum v. Fano, 427 U.S. 215, 226 (1976). Whether

asylum applicants are owed such “minimum due process” is an open

question in our circuit, but it is not one we need to resolve here. Angov

was clearly given fair access to all his statutory rights. What he asks for

instead are due process protections that go beyond those which Congress
10 ANGOV V. HOLDER

(ii) Statutory Rights

Angov’s challenge to the admission of the Bunton Letter

is therefore purely statutory. In assessing such a challenge,

we must first ask whether the IJ made legal error by denying

Angov any of his statutory rights. Angov claims that he was

denied his right to examine evidence against him. See

8 U.S.C. § 1229a(b)(4)(B). But the record tells a different

story. He was allowed to examine the Bunton Letter, and

given ample time to produce substantial evidence to rebut it. 

See p. 5 supra; cf. Cinapian, 567 F.3d at 1076 (had the

government given petitioners a chance to examine forensic

reports before hearing, they may have been able to produce

rebuttal evidence).

Angov also argues that he was denied his statutory right

to cross-examine the witnesses against him. We’ve held that,

before hearsay statements made by an absent witness can be

admitted into an immigration hearing, “‘the government must

make a reasonable effort . . . to afford the alien a reasonable

opportunity to confront the witnesses against him or her.’” 

Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th

Cir. 2005) (quoting Saidane v. INS, 129 F.3d 1063, 1065 (9th

Cir. 1997)); see also § 1229a(b)(4)(B); Baliza v. INS,

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

The government is, of course, not required to produce

Bulgarian police officials at an immigration hearing in the

United States. Such a requirement would make it virtually

impossible for the government to introduce evidence

rebutting an alien’s claims relating to conduct abroad. 

has provided him. But, as an alien who has never entered the United

States, those protections are unavailable to him.
ANGOV V. HOLDER 11

Instead Angov, and the dissent, claim that the immigration

authorities should have obtained a witness from the

Department of State to verify the letter’s contents. But

hauling State Department officials into court wouldn’t

ameliorate the dissent’s concerns, because the letters they

author inescapably rely on foreign officials who aren’t

amenable to cross-examination.

In any event, the government here did make a reasonable

effort to obtain a State Department witness, but was

prevented from doing so by State’s policy of not releasing

follow-up information regarding its overseas investigations. 

The dissent claims that “allowing one executive branch

agency to rely on another executive branch agency’s blanket

policy of refusing to provide certain information is

tantamount to granting the government the kind of unfettered

discretion we repudiated in Baliza.” But Baliza offers no

support to the dissent’s position. There the government relied

on the affidavit of an alien’s ex-wife as the basis for a

fraudulent marriage charge while barely even trying to

investigate her whereabouts. The declarant was not a

government official and the government gave no justification

for failing to find her. By contrast, the declarant here is a

government official speaking in her official capacity. And

the immigration authorities’ decision not to present her in

person was made pursuant to a coordinate department’s

reasonable policy governing the secrecy and safety of its

officers. Because neither the immigration authorities nor the

State Department acted unreasonably in failing to compel

Bunton to testify, Angov’s statutory rights were not violated.
12 ANGOV V. HOLDER

(iii) Substantial Evidence

Because the IJ did not erroneously deny Angov a

statutory right, our review is limited to whether the IJ’s

adverse credibility finding was supported by substantial

evidence. “This strict standard bars a reviewing court from

independently weighing 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 generally flexible—and highly deferential—

nature of substantial evidence review, Angov appears to

argue for a per se rule under which immigration judges must

blind themselves to the findings of a State Department letter,

unless it provides particular information regarding how an

investigation was conducted. Surprisingly, Angov’s radical

proposal accords with the view of the Second Circuit, which

has held that a document akin to the Bunton Letter was

“inherently unreliable” because it didn’t reveal the

qualifications of the investigator, the extent of the

investigation or the methods used to verify the information. 

Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 271–72 (2d Cir.

2006). Under Second Circuit law, therefore, documents like

the Bunton Letter categorically “cannot support [an] adverse

credibility finding.” Id. at 272. We reject this approach. 

Substantial evidence review requires an appellate court to

consider the reasonableness of an agency’s conclusions; it

does not empower us to craft quasi-statutory criteria

governing the admissibility of evidence in agency

proceedings. In light of our departure from the holding of a

sister circuit—one with the second-largest immigration
ANGOV V. HOLDER 13

docket in the country—we offer a thorough explanation for

our rationale.

1. Congress and the Attorney General have accorded

aliens like Angov a variety of procedural rights, including the

right to be present at the hearing; to be represented by

counsel; to examine the evidence against him and present

counter-evidence; to cross-examine witnesses; and to have a

written record kept of the proceedings. 8 U.S.C.

§ 1229a(b)(4). But neither the statute nor the regulations give

the asylum applicant a right to a particular quality of the

evidence presented against him. Instead, he is given the right

to have an impartial adjudicator assess the evidence. When

exercising grace towards individuals entitled no procedural

rights under the constitution, Congress can set the precise

limits of what it grants and what it withholds. That then

defines the process an asylum seeker like Angov is due.

With that in mind, let’s put Angov’s claims into some

context. The IJ found that Angov presented forged

documents. This is a serious matter that, if true, should not

merely result in the immediate termination of Angov’s

asylum petition, but also in criminal prosecution for

immigration fraud. But the IJ wasn’t fazed by discovery of

the fraud; he went on to decide whether Angov’s asylum

claim could be sustained despite the forgeries. No other

adjudicator in the United States would react with such

equanimity to finding that a party had tried to bamboozle it.

This points to an unfortunate reality that makes

immigration cases so different from all other American

adjudications: Fraud, forgery and fabrication are so

common—and so difficult to prove—that they are routinely
14 ANGOV V. HOLDER

tolerated. Our circuit is no exception. See Abovian v. INS,

257 F.3d 971 (9th Cir. 2001) (Kozinski, J., dissental).

The reason for this deplorable state of affairs is not

difficult to figure out. The schizophrenic way we administer

our immigration laws creates an environment where lying and

forgery are difficult to disprove, richly rewarded if successful

and rarely punished if unsuccessful. This toxic combination

creates a moral hazard to which many asylum applicants fall

prey.

First, the reward: the opportunity to be lawfully admitted

into the United States. Those born with U.S. citizenship

cannot imagine what this is worth to the world’s poor and

oppressed billions, most of whom would come here tomorrow

if they could. Gaining a lawful foothold in America is an

incalculable benefit. It sets an immigrant on the path to a

peaceful life in a free society, economic prosperity,

citizenship and the opportunity to bring family members in

due course. A prize like this is worth a great deal of expense

and risk. Telling an elaborate lie, and coming up with forged

documents and mendacious witnesses to back it up, is nothing

at all when the stakes are so high.

And the risk of getting caught is low. As eight members

of this court pointed out in Abovian:

The specific facts supporting a petitioner’s

asylum claim—when, where, why and by

whom he was allegedly persecuted—are

peculiarly within the petitioner’s grasp. By

definition, they will have happened at some

time in the past—often many years ago—in a

foreign country. In order for the INS to
ANGOV V. HOLDER 15

present evidence “refuting or in any way

contradicting” petitioner’s testimony, itwould

have to conduct a costly and often fruitless

investigation abroad, trying to prove a

negative—that the incidents petitioner alleges

did not happen.

257 F.3d at 976. There’s very little the United States can do

to investigate obscure incidents that allegedly occurred in

countries on the other side of the globe. Even if it were

economically feasible, we can’t send the FBI into a foreign

country to conduct a full field investigation. The best we can

do is to have consular personnel check basic facts, in addition

to the many other functions they perform. And we have very

few U.S. consular personnel on the ground in most countries;

in all of Bulgaria, there are fewer than two dozen. See U.S.

Sec’y of State, 1 Congressional Budget Justification,

Department of State Operations, Fiscal Year 2013, at 306

(2012). All told, there are fewer than 6000 consular officials

in embassies and consulates spread out across more than 170

countries. Id. at 227–311.

Finally, if an alien does get caught lying or committing

fraud, nothing very bad happens to him. Sure, he may be

ordered removed, but most aliens who aren’t in custody

remain here long after their removal orders become final. 

See, e.g., Office of the Inspector Gen., U.S. Dep’t of Justice,

The Immigration and Naturalization Service’s Removal of

Aliens Issued Final Ordersiii (2003) (reporting that “the INS

removed only 3 percent of nondetained asylum 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 (discussing policy that calls for “the

exercise of prosecutorial discretion to focus removal efforts
16 ANGOV V. HOLDER

on the most high-priority cases”). And if they do get sent

back—at our expense—what’s lost? They wind up where

they started. Would-be immigrants almost never get

prosecuted for presenting forged documents in support of

asylum petitions, unless they commit some additional

misconduct. See, e.g., United States v. Jawara, 474 F.3d 565,

570 (9th Cir. 2007) (defendant charged with document fraud

and conspiracy to commit marriage fraud). Consequently,

immigration fraud is rampant.

Take, for instance, Angov’s compatriot, Pavel Pavlov. 

Pavlov sought asylum as a persecuted gypsy, just like Angov. 

They even have the same lawyer. But Pavlov’s story took a

different turn when his wife gained U.S. citizenship and he

sought adjustment of status. In the process, he had to disclose

that his asylum application was a tissue of lies. Specifically,

Pavlov admitted that he wasn’t persecuted in Bulgaria. In

fact, he’s not even a gypsy.

Americans galore wind up in federal prison every year for

far less significant lies on government forms or bank loan

applications. See, e.g., United States v. Prince, 647 F.3d

1257, 1260–61, 1265 (10th Cir. 2011); United States v.

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

v. Jack, 216 F. App’x 840, 841–43 (11th Cir. 2007). So was

Pavlov appealing his criminal conviction? Certainlynot. The

BIA barred Pavlov from obtaining any relief under our

immigration laws because he had filed a frivolous (read:

fraudulent) asylum petition—a decision he had the chutzpah

to appeal. See Pavlov v. Holder, 697 F.3d 616 (7th Cir.

2012).

Cases involving fraudulent asylum claims are

distressingly common. See, e.g.,Cheema v. Holder, 693 F.3d
ANGOV V. HOLDER 17

1045, 1046–47 (9th Cir. 2012); Dol v. Holder, 492 F. App’x

774, 775 (9th Cir. 2012); Zheng v. Holder, 672 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); Ribas v. Mukasey, 545 F.3d 922,

925–26 (10th Cir. 2008); Siddique v. Mukasey, 547 F.3d 814,

815–16 (7th Cir. 2008); Rafiyev v. Mukasey, 536 F.3d 853,

855–57 (8th Cir. 2008); Dhital v. Mukasey, 532 F.3d 1044,

1047–48 (9th Cir. 2008) (per curiam); Chen v. Mukasey,

527 F.3d 935, 938–39 (9th Cir. 2008); Ahir v. Mukasey,

527 F.3d 912, 914–16 (9th Cir. 2008). And for every case

where the fraud is discovered or admitted, there are doubtless

scores of others where the petitioner gets away with it

because our government didn’t have the resources to expose

the lie.

The Second Circuit has given this already shaky system

a swift kick in the gut. As we explain further below, its

ruling makes it pretty much impossible for the immigration

authorities to carry out even the little bit of fact checking they

now manage to do. Its decision smothers the State

Department’s informal process of checking up on asylum

petitions in layers of procedural complexity that will prove

impossible to administer in practice. Perhaps the Supreme

Court or Congress will intervene and decide who’s right.

2. The basic question that confronts us is this: In a

system where there are pervasive, structural incentives for

fraud, are we to disable our triers of fact from considering

certain evidence—which may be essential to weeding out

fraudulent claims—when that evidence lacks particular

details that may bear on its reliability? Remember, the

Second Circuit regards documents like the Bunton Letter as

inherently unreliable. We need not—and do not—conclude
18 ANGOV V. HOLDER

that such letters will always lead to adverse credibility

findings; we simply disclaim the conclusion that theymust be

excluded from an immigration judge’s consideration when

they fail to provide sufficient identifying detail.

We acknowledge the Bunton Letter lacks certain indicia

of reliability, but we cannot say, under our “extremely

deferential” review, that its use alone constitutes grounds to

reverse the IJ’s adverse credibility determination. Wang v.

INS., 352 F.3d 1250, 1257 (9th Cir. 2003). First of all, Angov

has the burden of proving his eligibility for asylum. See

8 C.F.R. § 1208.13(a). The government has no burden; it can

present evidence solely to rebut or impeach petitioner’s case. 

The IJ and the BIA could reasonably conclude that the

Bunton Letter is at least sufficient to cast doubt on Angov’s

evidence and force him to come up with more solid proof to

support his claim.

Angov finds fault with the Bunton Letter because it

“provides no information as to who conducted the

investigation; who obtained, stored and verified the

information underlying the conclusion expressed in the

document [or] when and under what authority the

investigation was conducted.” He notes that the Bunton

Letter offers no explanation for many of its conclusions—for

example, that both the case numbers and the telephone

numbers listed on the fraudulent subpoenas were incorrect. 

These are all interesting points to raise at the hearing, and the

absence of a satisfactoryresponse from the government might

well convince the trier of fact to disregard the letter. But in

this instance, the IJ, in his discretion, chose to credit the

letter. That was his prerogative, and our review is limited to

whether that decision is permissible in light of the evidence.
ANGOV V. HOLDER 19

The doubts as to the letter’s reliability flow from the fact

that the rules of evidence, and the hearsay rules in particular,

don’t apply to administrative proceedings. See Richardson v.

Perales, 402 U.S. 389, 400–02 (1971); HernandezGuadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005). 

This inevitably leaves some uncertainty that would be

eliminated if this were a formal trial subject to the rules of

evidence. But it doesn’t deprive the opposing party of any

and all means of rebutting the hearsay declarant’s assertions.

The Bunton Letter does come to certain factual

conclusions: that the addresses identified by Angov in his

asylum petition don’t exist; that the officers—Captain

Donkov, Lieutenant Slavkov and Investigator Vutov—and

room numbers specified in the subpoenas presented byAngov

don’t exist; that the seals on the subpoenas are the wrong

size; and that the part of the city where Angov claimed to live

was only twenty to thirty percent Roma. Each of these

assertions describes facts in the real world, so it’s possible to

rebut Bunton by presenting proof that those facts are not as

the Bunton Letter describes them.

In fact, Angov did precisely that with respect to the two

addresses. He presented a letter from someone in Bulgaria,

who explained that the Bunton Letter’s conclusions about the

addresses are wrong. See p. 5 supra; Appendix. And the BIA

seems to have been swayed, as it noted that the “record is

unclear” about whether Angov was telling the truth about the

addresses.

Angov was free to present similar evidence to undermine

the Bunton Letter’s statements about the subpoenas. He

could have had Ms. Mihaylova from the human rights

organization or some other friend in Sofia visit the police
20 ANGOV V. HOLDER

station and try to find out whether the rooms referenced in the

Bunton Letter do or don’t exist. He might also have been

able to obtain a roster of the names of police officials in Sofia

and shown that it contains the names of the officers

referenced in the subpoenas.

The Bunton Letter also asserts that the phone numbers in

the subpoenas aren’t correct. Angov or one of his friends

could have called the numbers and asked whether he’d

reached the police station—and then submitted an affidavit to

that effect. The same is true about the seals: Angov or his

friends might have tried to obtain an official copy of the

police seal from the Bulgarian government and introduced it

into evidence. He did none of these things, perhaps because

he knew that the subpoenas were forged.

Where the petitioner has the burden of proof, there’s

nothing unfair about having a U.S. government agent check

out some of his basic facts and inform the IJ of possible

discrepancies. This forces the petitioner to obtain further

evidence supporting the challenged claims. There might be

situations where obtaining further evidence is impossible,

such as where the petitioner has fled from a closed society

and can find no one willing or able to obtain the evidence he

needs. In such cases, we don’t hold the petitioner’s failure to

present evidence against him. See Singh v. Holder, 638 F.3d

1264, 1270–71 (9th Cir. 2011). But Angov has never claimed

that he couldn’t get more evidence; indeed he has resources

in Bulgaria with which to do so. Based on the almost

complete absence of rebuttal evidence on Angov’s part, the

IJ was not unreasonable to credit the allegations in the Bunton

Letter.
ANGOV V. HOLDER 21

3. There’s nothing particularly exotic about assessing an

asylum applicant’s credibility by comparison with an

extrinsic source. For example, the Bunton Letter’s estimate

that Angov comes from a community that is only twenty to

thirty percent Roma is similar to the kind of demographic

estimates made by the State Department in its country

reports, on which we and the BIA rely all the time. See, e.g.,

Dhillon v. Holder, 485 Fed. App’x 252, 253 (9th Cir. 2012);

Patel v. Holder, 474 F. App’x 584, 585 (9th Cir. 2012); Sesay

v. Holder, 469 F. App’x 617, 617 (9th Cir. 2012); see also

Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (“U.S.

Department of State country reports are the most appropriate

and perhaps the best resource for information on political

situations in foreign nations.” (internal quotation marks

omitted)); cf. 8 U.S.C. § 1158(b)(1)(B)(iii).

Were we to hold that we can’t rely on this estimate in the

Bunton Letter, we’d be casting doubt on a multitude of

country reports that have no better support for their

demographic estimates than the Bunton Letter. The country

reports are, after all, prepared by the very same consular

officials, using some of the same methods, as the Bunton

Letter. See Bureau of Democracy, Human Rights & Labor,

U.S. Dep’t of State, Country Reports on Human Rights

Practices for 2012: Appendix A: Notes on Preparation of

Reports, at 1 (2012). Indeed, Cynthia Bunton’s title when she

wrote her letter was director of the Department of State’s

“Office of Country Reports and Asylum Affairs.” (emphasis

added). Nadia Tongour is her successor. Adopting Angov’s

objection to the findings in the Bunton Letter could render

country reports inadmissible in immigration proceedings.

Angov complains that the Bunton Letter might have relied

on reports from foreign service nationals (FSNs). See
22 ANGOV V. HOLDER

Ezeagwuna, 325 F.3d at 406. What if it did? Our embassy in

Sofia, as elsewhere, employs roughly the same number of

FSNs and Americans. U.S. Sec’y of State, 1 Congressional

Budget Justification, Department of State Operations, Fiscal

Year 2013, at 306 (2012). Our short-staffed consular offices

no doubt use FSNs, who are fluent in the local language and

familiar with local conditions, to do some of the legwork. 

We see nothing wrong with that. Whether the investigation

was conducted by U.S. citizens, FSNs or Hercule Poirot, it

resulted in certain factual conclusions that can be refuted.

Submissions such as the Bunton Letter and the various

country reports on which we routinely rely aren’t just a

collection of statements by disconnected individuals. Rather,

they are the unified work product of a U.S. government

agency carrying out governmental responsibilities. As such,

the report itself, and the acts of the various individuals who

helped prepare it, are clothed with a presumption of

regularity. See Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157, 174 (2004); see also Kohli v. Gonzales,

473 F.3d 1061, 1068 (9th Cir. 2007). “[I]n the absence of

clear evidence to the contrary, courts presume that [these

individuals] have properly discharged their official duties.” 

Favish, 541 U.S. at 174 (quoting United States v. Armstrong,

517 U.S. 456, 464 (1996)).

The presumption of regularity has been applied far and

wide to many functions performed by government officials. 

See, e.g., U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001)

(Post Office disciplinary procedures); United States v.

Armstrong, 517 U.S. 456, 464 (1996) (prosecutorial decision

making); FCCv. Schreiber, 381 U.S. 279, 296 (1965) (FCC’s

decision making process); cf. INS v. Miranda, 459 U.S. 14,

16–18 (1982) (per curiam) (processing of visa application).
ANGOV V. HOLDER 23

The Bunton Letter is entitled to the presumption that

those who participated in its preparation, be they FSNs,

consular officers or officials at the State Department in

Washington, did their jobs fairly, conscientiously and

thoroughly; 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 of the report; and

that no one lied or fabricated evidence. Without this

presumption, country reports would be no more useful than

the Farmers’ Almanac or Perezhilton.com.

The dissent argues that the presumption of regularity

doesn’t apply here because “[t]he key hearsay statement in

the Bunton Letter comes from a Bulgarian police employee,

not a U.S. government official.” But that would remain true,

even with the procedural protections the Second Circuit

advocates. Those protections don’t prevent Bulgarian police

officers from lying, they simply make it easier for an IJ to

assess the quality of investigation conducted by our consular

officials—the very officials we presume reliable. As with a

country report, the information in a consular letter may be

based, in part, on hard-to-verify statements made by local

officials. That’s a reason to take the information contained in

such letters with a grain of salt—as an IJ is entitled to

do—not a reason to deem them inadmissible in their entirety.

The similarities between the Bunton Letter and the litany

of documents used, and accepted, in everyday asylum

adjudications speaks to a fundamental misapprehension on

the part of the Second Circuit and the dissent. Immigration

adjudication necessarily requires consideration of all manner

of imperfect sources. But we do neither immigrants nor the

immigration authorities a service by cabining the range of

permissible documents on which a trier of fact can rely in
24 ANGOV V. HOLDER

making his decision. In assessing whether an incident

occurred years ago in a faraway country with an unfamiliar

culture and political system, an immigration judge must be

able to read, assess and weigh as much information as

possible. True, dismissing a petition in reliance on an

unsworn letter might seem harsh; but so is dismissing a

petition based on relativelyminor testimonial inconsistencies

in the convoluted story of an immigrant who may have only

a weak command of English and a hazy memory of his flight

from terror. Harshness is endemic to any asylum system. 

Here, the IJ came to the conclusion that the unrefuted

contents of the Bunton Letter cast doubt on the subpoenas

Angov presented as evidence. Do we really better serve

justice, or the immigration process more generally, by

compelling the IJ to either accept the dubious subpoenas as

genuine, or base his review solely on his instincts as to what

a Bulgarian subpoena “should” look like?

An implicit assumption of the Second Circuit’s approach

is that the exclusion of documents such as the Bunton Letter

will lead, not to reliance on capricious information, but to the

proliferation of more comprehensive and reliable State

Department investigations. There’s no reason to believe that

will happen. The asylum unit of the Department of State’s

Office of Country Reports and Asylum Affairs “has suffered

from long standing resource problems.” Office of the

Inspector Gen., U.S. Dep’t of State, Report of Inspection:

Bureau of Democracy, Human Rights and Labor 23 (2003). 

Many of its staffers are interns, and even its regular

employees are often “pressed into service to work” on the

Office’s other main responsibility: country reports. Id. at

23–24. And the consular officers tasked with verifying

asylum applicants’ claims are also overworked and

understaffed. The Tongour Letter expresses the
ANGOV V. HOLDER 25

government’s position on providing additional information

about the results of an overseas investigation: “Such

additional demands are further burdens on Consular Officers

in the performance of their regular responsibilities and are

particularly onerous for FSNs who may be subject to local

reprisal.” The State Department tells us it’s doing the best it

can with the scant resources allocated to it and our consular

corps abroad.

Demanding that the reports contain a multitude of

additional details, such as “the identity and qualifications of

the investigator(s),” “the objective and extent of the

investigation” and “the methods used to verify the

information discovered,” see Lin, 459 F.3d at 271, transforms

a process that is swift, efficient and informal into one that’s

ponderous, time-consuming and expensive.

Insisting on these procedures would paralyze the process,

making it impossible for our consular officers to do many of

these investigations because they’re too busy filling in all the

jots and tittles our sister circuit enshrines as pre-requisites for

a document’s admission. Complying with such requirements

considerably lengthens the time it takes to write most reports,

and may make it impossible to write others for fear of

disclosing sensitive information that could compromise

sources or impair relations with local officials.

Nor is it realistic for the government to produce such

information in camera. These reports are prepared by

Department of State officials stationed in foreign countries,

and are then turned over to another agency in another

department, which then releases them to an adverse party. 

These disclosures are made in the context of immigration

court proceedings, not in district court, and the immigration
26 ANGOV V. HOLDER

court, despite its name, is an executive branch agency. It has

no contempt powers and can’t have anyone arrested for

violating its orders, including confidentiality orders. See

Stephen H. Legomsky, Restructuring Immigration

Adjudication, 59 Duke L.J. 1635, 1674, 1714 (2010); Dana

Leigh Marks, Still a Legal “Cinderella”? Why the

Immigration Courts Remain an Ill-Treated Stepchild Today,

59 Fed. Law., Mar. 2012, 25, at 30. There’s a good chance

the information will fall into the hands of people who have

little regard for U.S. law and find themselves repatriated with

a motive for revenge. Consular officials forced to disclose

sensitive information in these circumstances would probably

leave the information out of the report rather than risk

burning their sources, offending local officials or losing their

lives.

If we make the job of compiling these reports

substantially more risky and onerous, the State Department

may stop writing them. The United States gets close to

74,000 asylum cases a year, far more than any other

industrialized nation. See United Nations High Comm’r for

Refugees, Asylum Levels and Trends in Industrialized

Countries 3, 8 & n.14 (2011). (That’s more than three times

the number of Social Security cases the Supreme Court

considered massive in Perales). The use of reports from

consular officials gives the government the ability to check

facts and puts at least some constraint on how far from the

truth asylum applicants will stray. Knocking out even this

most basic check on fraud and fabrication would subvert the

asylum process, giving charlatans a free pass into the United

States.

4. In any event, even if the Second Circuit’s approach

were to encourage more detailed State Department letters,
ANGOV V. HOLDER 27

such “faith in procedural choreography” as a truth-seeking

device is “fundamentally flawed.” United States v. Balough,

820 F.2d 1485, 1491 (9th Cir. 1987) (Kozinski, J.,

concurring). Requiring the Department of State to disclose

more details will neither materially enhance the reliability of

the resulting report nor do very much to help asylum

applicants.

We test this proposition by modifying a portion of the

Bunton Letter to comply with the requirements that would

(presumably) satisfy the Second Circuit; new or modified

language is italicized:

Agent Michael Smith, a foreign service

agent with seventeen years of field experience

who is fluent in Bulgarian, ordered Vladimir

Popov, a foreign service national in the

Embassy’s employ, to visit the 5th Police

District station in Sofia in order to seek

authentication of the two subpoenas. FSN

Popov is a lifelong resident of Sofia and has

worked for the Embassy for two years. He is

fluent in Bulgarian and speaks conversational

English.

FSN Popov traveled to the station and,

once there, spoke to Ludmilla Bogdanovich,

who is the supervisor of personnel records at

the station. FSN Popov considers Ms.

Bogdanovich a trustworthy source. After she

consulted the relevant records, Ms.

Bogdanovich told FSN Popov that Captain

Donkov, Lieutenant Slavkov and Investigator

Vutov have never worked for the 5th Police
28 ANGOV V. HOLDER

District. Ms. Bogdanovich also told FSN

Popov that the case numbers on the subpoenas

were not correct, there was no room 4 on the

second floor and no room 5 on the first floor

and that the telephone numbers on the

subpoenas were incorrect. While at the

station, FSN Popov asked Ms. Bogdanovich

for an imprint of the police station seal, which

he brought back to the consulate. Agent

Smith compared it to the seal on the two

subpoenas and found the official seal to be

much larger.

After hearing FSN Popov’s oral report of

his meeting with Ms. Bogdanovich, Agent

Smith transmitted the information to the

author of this letter by encrypted email.

Best we can tell, this revised letter would comply with the

requirements imposed by the Second Circuit, but would it be

much more valuable than what we already have? We’d know

a bit more about Agent Smith, and we’d know the identity of

the person who did the legwork, but how would that help us?

We’d also have a name of someone who purportedly

provided the information from the Bulgarians, but how would

that be of any use? Angov could still complain that the IJ

was unable to assess the Bulgarian official’s credibility, or

even the credibility of any of the later links in the chain. 

We’d also know that it was Agent Smith who visually

compared the seal on the subpoenas with 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 of

questions: How do we know Popov really went to the police
ANGOV V. HOLDER 29

station instead of stopping off in a bar to chug rakia? How

did Popov know whether Bogdanovich was really the

supervisor of personnel records at the police station? Did he

check her identification papers? How did Popov assess

Bogdanovich to be trustworthy, and how can we be sure he’s

right? Did Popov look at the personnel records himself, or

did he take Bogdanovich’s word that the three officers never

worked there? Can we be sure that Bogdanovich checked all

the relevant records? Can we be sure the purported personnel

records were accurate and complete? How do we know

Popov didn’t falsify important details because he was afraid

of reprisal or because he hates gypsies? And how can we be

sure Smith is telling the truth if we can’t cross-examine him?

Did Smith have a full-sized copy of the subpoena when he

compared the seals or a shrunken photocopy?

These difficulties are inherent in trying to prove up facts

related to events that occurred years past and thousands of

miles away from where the IJ is holding his hearing. Short of

transporting all the declarants and their underlying records to

the United States for a hearing before an IJ, there will

inevitably be gaps that can be bridged only by multiple levels

of hearsay.

This is not a problem that plagues only the government. 

Almost every piece of evidence asylum petitioners present in

support of their cases would be inadmissible if subjected to

the rules of evidence, especially those pertaining to hearsay:

threats they claim to have been subjected to; racist comments

by the police; reports of strange people looking for them;

letters from family members and others. A brief scan of our

caselaw shows it’s prettymuch impossible to build an asylum

case without relying on evidence that would be laughed out

of court if presented in a domestic trial. See, e.g., Meza-
30 ANGOV V. HOLDER

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.

Holder, 652 F.3d 1011, 1013–15 (9th Cir. 2011); Kumar v.

Gonzales, 444 F.3d 1043, 1047–48 (9th Cir. 2006).

Take, as a small example, the letter from Daniela

Mihaylova that Angov presented to rebut some of the

information in the Bunton Letter. This is a two-page, typed

document, with a small emblem and a typed address by way

of letterhead. (We reproduce it in the Appendix.) It is

addressed “To: Whom it may concern” and references

Angov’s case. The letter represents that the “Romani Baht

Foundation is a leadingBulgarian non-profit organization for

protection of Roma/Gypsies human rights, founded in 1996

and legally registered with Bulgarian court.” Mihaylova

purports to be the legal programs’ director of the Foundation.

The BIA took this letter seriously and modified some of

the IJ’s findings based on it and other evidence presented by

Angov. But there is absolutely no evidence in the record that

there is any such person as Daniela Mihaylova and, if there is,

how she went about obtaining the information detailed in her

letter. For all we know, Angov could have printed the letter

using his computer and standard word processing software.

Compared to this letter—and the remaining evidence

presented by Angov—the Bunton Letter seems a paragon of

reliability. It was prepared by government officials trained to

perform this kind of investigation; who have nothing to gain

by giving false information; and whose conduct is clothed

with the presumption of regularity that attaches to all

government actors. Cf. Perales, 402 U.S. at 402–06. The

Bunton Letter encloses five photographs depicting locations
ANGOV V. HOLDER 31

mentioned in Angov’s asylum petition, which confirms that

someone from our consulate traveled to those locations and

made a personal inspection.

The Bunton Letter also gives specific reasons for

doubting the authenticity of the addresses and points to

several problems with the subpoenas. It is not an

unsupported assertion that Angov is a liar; it is a rational,

apparently objective recital of observed facts. At the very

least, we can be sure that there is a Bunton and a Tongour,

and that they can be disciplined or prosecuted if they

negligently or deliberately falsified their reports. And we can

reasonably presume that, in preparing their reports, Bunton

and Tongour relied on trained State Department officers and

agents who are themselves subject to discipline or

prosecution for incompetence or corruption.

Compare this to the letter from Mihaylova (assuming

there even is a Mihaylova): It comes from someone who

cannot be disciplined or prosecuted in case of a lie, and who

has not been screened for competence, honesty or reliability. 

It encloses no pictures or other documentary evidence. It

doesn’t explain how the facts asserted were gathered or by

whom. It doesn’t even claim to be based on first-hand

knowledge, rather than hearsay or rumor. The letter simply

makes a series of bald factual assertions without any support. 

Even assuming the letter is genuine (in the sense that it was

actually written by its purported signatory in Bulgaria), the IJ

and the BIA have absolutely no way to evaluate how accurate

or objective it is.

In an environment where it’s pretty much impossible to

obtain first-hand accounts of most of the relevant facts,

should we require the government to fight an uphill battle on
32 ANGOV V. HOLDER

a slippery slope with one leg and both arms tied behind its

back, while its adversary gets to use cleats and brass

knuckles? Of course not. It would be the height of cognitive

dissonance to hold the United States to standards of proof

derived from domestic litigation while allowing petitioners to

present anything and everything that doesn’t bear the

watermark “Forgery Purchased on the Black Market.”

Furthermore, contrary to what the dissent and the Second

Circuit might believe, the consequence of a rule excluding the

consideration of documents such as the Bunton Letter 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 brazen

and those who have the means and connections to purchase

or create fraudulent documents, such as Angov’s compatriot,

Pavlov. See p. 13–14 supra. Nor does such a rule ultimately

help asylum seekers, as it’s hard to believe that Congress will

long allow the program to continue when it rewards people

who lie their way into the United States. Eventually,

Congress and the public will catch on that asylum has become

a fast-track vehicle for immigration fraud, and the asylum

statute will be repealed or amended so as to make it even

more difficult for honest asylum seekers to obtain relief. The

ultimate victims will be the tired, poor, huddled masses who

will find the golden door slammed in their faces.

* * *

We conclude on this record that the IJ acted within his

discretion when he admitted the Bunton Letter into evidence

and relied on it to find that the subpoenas Angov submitted

were fraudulent. The adverse credibility finding based on the

fraudulent subpoenas was supported by substantial evidence. 

Because Angov’s claim is based on his mistreatment by the
ANGOV V. HOLDER 33

Bulgarian police, the fact that the subpoenas were fraudulent

“goes to the heart of [Angov’s] claim of persecution.” See

Rizk, 629 F.3d at 1087–88. Furthermore, Angov’s testimony

is not credible, and he doesn’t present other evidence that

meets his burden to show that it’s “‘more likely than not’”

that he would be tortured if sent back to Bulgaria. See

Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). 

Consequently, the IJ and BIA decisions denying Angov

asylum, withholding of removal and protection under the

Convention Against Torture must stand.

PETITION DENIED.
Appendix: Mihaylova Letter 

34 ANGOV V. HOLDER
ANGOV V. HOLDER 35
36 ANGOV V. HOLDER

THOMAS, Chief Judge, dissenting:

I would join the Second Circuit in resolving the issue

before us. Unsworn, unauthenticated, hearsay letters—

prepared for litigation by the government and not subject to

any form of cross-examination—cannot form the sole basis

for denying asylum to an otherwise qualified applicant. 

Therefore, I must respectfully dissent.

I

A

Five of our sister circuits have held that the government

may not deny asylum solely on the basis of conclusory letters

prepared for litigation in reliance on multiple layers of

unauthenticated hearsay, without affording the petitioner

some right of confronting the charges. Four of those circuits

reached this result on constitutional grounds, holding that the

admission of unauthenticated consular letters against an

asylum applicant violates that applicant’s procedural due

process rights. Banat v. Holder, 557 F.3d 886, 892–93 (8th

Cir. 2009); Anim v. Mukasey, 535 F.3d 243, 256–58 (4th Cir.

2008); Alexandrov v. Gonzales, 442 F.3d 395, 407 (6th Cir.

2006); Ezeagwuna v. Ashcroft, 325 F.3d 396, 405–08 (3d Cir.

2003). The Second Circuit declined to reach the

constitutional issue but held that such letters, standing alone,

could not provide a basis for denying asylum under the

substantial evidence standard because they lacked sufficient

indicia of reliability and trustworthiness. Lin v. U.S. Dep’t of

Justice, 459 F.3d 255, 268–72 (2d Cir. 2006); see also

Balachova v. Mukasey, 547 F.3d 374, 382–83 (2d Cir. 2008)

(applying Lin). Although I would resolve the present case

purely on statutory grounds, as the Second Circuit did, the
ANGOV V. HOLDER 37

cases decided by our other sister circuits also provide useful

guidance here.

In Banat, for instance, the Eighth Circuit rejected an IJ’s

reliance on a consular letter that cited an unidentified

investigator from the U.S. embassy in Beirut because the

letter contained “multiple levels of hearsay” and omitted any

mention of the investigator’s qualifications, experience, or

“contact.” 557 F.3d at 891–92. The court acknowledged that

“overseas investigations by State Department officials

concerning the authenticity of documents purportedly

originating in foreign countries are often necessary for the

adjudication of an asylum claim,” id. at 890; however, it

concluded that “the IJ’s reliance on the State Department

letter, which provided no details about the investigation that

would allow the IJ to assess the investigation’s reliability or

trustworthiness and which contained multiple levels of

hearsay, violated Banat’s right to a fundamentally fair

hearing.” Id. at 893. The court reasoned:

Reliance on reports of investigations that do

not provide sufficient information about how

the investigation was conducted are

fundamentally unfair because, without that

information, it is nearly impossible for the

immigration court to assess the report’s

probative value and the asylum applicant is

not allowed a meaningful opportunity to rebut

the investigation’s allegations.

Id. at 891.

The Fourth Circuit relied on similar logic in Anim when

it rejected a State Department letter authored by the same
38 ANGOV V. HOLDER

official involved in our case. The court noted that the

official’s letter was “comprised entirely of multiple hearsay

statements.” 535 F.3d at 257. It also pointed out that “letter

does not explain how Bunton received the information she

relates, nor does the letter disclose the identities of some of

the individuals involved in the chain of communication.” Id.;

see also id. (“Without the details of the investigation, it is

impossible for an immigration judge, the BIA, or a court to

evaluate the reliability of the letter’s conclusions.” (citations

omitted)). Based on these deficiencies, the Anim court

concluded that “the Bunton letter contains insufficient indicia

of reliability and, as a result, its use was fundamentally

unfair.” Id. at 256.

The courts in both Anim and Banat relied heavily on the

Second Circuit’s reasoning in Lin, 459 F.3d at 268–72. In

Lin, the Second Circuit rejected a consular report almost

identical to the letter at issue here. The consular report was

based on the opinions of Chinese government officials who,

as the Lin court noted, “appear to have powerful incentives to

be less than candid on the subject of their government’s

persecution of political dissidents.” Id. at 269–70. The court

also observed that the report lacked other traditional markers

of reliability, namely: “(i) the identity and qualifications of

the investigator(s); (ii) the objective and extent of the

investigation; and (iii) the methods used to verify the

information discovered.” Id. at 271. The Lin court distilled

these factors from the Department of Justice’s own guidelines

for evaluating the reliability of documents produced

overseas.1 Noting that the consular letter failed to satisfy

1 The Justice Department’s guidelines stated that, in the case of a

fraudulent document, the “report must contain, at a minimum: (i) the name

and title of the investigator; (ii) a statement that the investigator is fluent
ANGOV V. HOLDER 39

these basic criteria, the court held that the report was

“insufficiently detailed to permit a reviewing court to assess

its reliability” and, as such, could not support a finding that

the petitioner had forged documents submitted with his

asylum application. Id. at 270.

Critically, the Second Circuit reached this conclusion as

a statutory matter, holding that the consular report was

“highly unreliable and therefore insufficient to satisfy the

substantial evidence requirement.” Id. at 269. The court

noted that the Third and Sixth Circuits had recently rejected

similar reports as procedural due process violations2but,

in the relevant language(s) or that he or she used a translator who is fluent

in the relevant language(s); (iii) any other statements of the competency

of the investigator and the translator deemed appropriate under the

circumstances (such as education, years of experience in the field,

familiarity with the geographic terrain, etc.); (iv) the specific objective of

the investigation; (v) the location(s) of any conversations or other searches

conducted; (vi) the name(s) and title(s) of the people spoken to in the

course of the investigation; (vii) the method used to verify the

information; (viii) the circumstances, content, and results of each relevant

conversation or search[ ]; and (ix) a statement that the Service investigator

is aware of the confidentiality provisions found in 8 C.F.R. § 208.6.” 

Memorandum from Bo Cooper (“Cooper Memo”), Gen. Counsel,

Immigration & Naturalization Serv., to Jeffrey Weiss, Dir., Immigration

& Naturalization Serv. Office of Int’l Affairs, Confidentiality of Asylum

Applications and Overseas Verification of Documents and Application

Information (June 21, 2001), available at http://judiciary.house.gov/

legacy/82238.pdf at 39–45.

2

See Alexandrov, 442 F.3d at 407 (holding that memoranda prepared by

a U.S. embassy official in Sofia did “not meet our standards of

trustworthiness and reliability and were therefore improperly relied upon

by the immigration court”); Ezeagwuna, 325 F.3d at 406–08 (holding that

a letter prepared by a U.S. embassy official in Yaounde contained

“multiple hearsay of the most troubling kind” and, therefore, was “neither

reliable nor trustworthy”).
40 ANGOV V. HOLDER

ultimately, the Lin court held that it was unnecessary to reach

the constitutional issue. Id. (“Although we find the logic of

these cases [concerning procedural due process] persuasive,

we do not reach the constitutional issue presented because the

statutory standard of review requires vacatur.” (emphasis in

original)). The court later took the same approach in

Balachova. 547 F.3d at 383 (concluding that a consular

report that “contain[ed] no information concerning the

qualifications of the investigators, the identity of the Russian

officials who prepared the response to the consular inquiry,

or the methods, if any, used to verify the information supplied

by the foreign official” was “unreliable and cannot contribute

to a finding of substantial evidence”).

Our case cannot be distinguished from Lin or Balachova. 

The IJ relied on a short, unsworn letter from a State

Department official to support his finding that Angov forged

parts of his asylum application. The letter was devoid of any

information concerning the methodology employed in the

investigation or the qualifications of the investigators. 

Instead, it was based on the unauthenticated, hearsay

statements of an unidentified Bulgarian police official who

worked at the police station where Angov claims to have been

severely beaten. Like the government officials in Lin, that

police official—whose department had been accused of

ethnically motivated brutality—had a strong incentive to be

“less than candid.” 459 F.3d at 269.

In sum, the Bunton Letter was comprised of conclusory

statements of fact, none of which were supported by the basic

information required under Lin and Balachova. We are left,

as was the Second Circuit, with a document that is

“insufficiently detailed to permit a reviewing court to assess

its reliability.” Lin, 459 F.3d at 270. Indeed, in many ways,
ANGOV V. HOLDER 41

there is less information in the Bunton Letter than in the

letters rejected as unreliable by our sister circuits. 

Accordingly, because the Bunton Letter lacks the indicia of

reliability set forth in Lin, the agency could not have relied on

it under the substantial evidence standard.

B

Neither Lin nor Balachova discussed the specific

procedural protections guaranteed to aliens in removal

proceedings under 8 U.S.C. § 1229a(b)(4)(B). That

provision, however, offers independent grounds for barring

the government from relying on unsworn, unauthenticated

hearsay letters as the sole basis for denying an alien relief

from removal.

Section 1229a(b)(4)(B) expressly provides that every

alien “shall have a reasonable opportunity to examine the

evidence against [him or her], to present evidence on [his or

her] own behalf, and to cross-examine witnesses presented by

the Government” during removal proceedings. See also

8 C.F.R. § 1240.10(a)(4) (requiring the IJ to “[a]dvise the

respondent that he or she will have a reasonable opportunity

to examine and object to the evidence against him or her, to

present evidence in his or her own behalf and to

cross-examine witnesses presented by the government”). We

have recognized the “importance of the right to confront

evidence and cross-examine witnesses” under this statute.3

3 The majority suggests that, because foreign officials are not themselves

“amenable to cross-examination,” allowing State Department officials to

be cross-examined when they “inescapably rely” on information from

foreign officials would not significantly enhance the credibility of that

information. Slip Op. at p. 11. This view overlooks the fact that State
42 ANGOV V. HOLDER

Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009)

(listing “several cases” highlighting the importance of this

right). As we explained in those cases, the “purpose of this

statutory guarantee cannot be fulfilled . . . if the government’s

choice whether to produce a witness or to use a hearsay

statement is wholly unfettered.” Baliza v. INS, 709 F.2d

1231, 1234 (9th Cir. 1983). Rather, to comply with this

provision, the government must “make a reasonable effort to

present the witness” for cross-examination. Cinapian,

567 F.3d at 1074.

The majority asserts that the “government here did make

a reasonable effort to obtain a witness” for cross-examination

but, ultimately, was stymied by the State Department’s policy

of not releasing follow-up information about overseas

investigations. See supra, Slip Op. at p. 11. This “effort”

cannot be sufficient to satisfy the government’s burden under

the statute. Indeed, allowing one executive branch agency to

rely on another executive branch agency’s blanket policy of

refusing to provide certain information is tantamount to

granting the government the kind of unfettered discretion we

repudiated in Baliza. As for the policy itself, whatever

logistical obstacles might have once justified the State

Department’s blanket refusalto produce overseas government

witnesses for removal proceedings, those obstacles can surely

Department officials would be less likely to accept unreliable information

as true if they knew that they might later be subject to cross-examination. 

Furthermore, if State Department officials did rely on information

obtained from foreign officials, they would be prepared to explain why

that information was trustworthy.
ANGOV V. HOLDER 43

be overcome in an age of video conferencing.4Indeed,

federal law specifically allows IJs to conduct entire hearings

via telephone or video conference. 8 U.S.C.

§ 1229a(b)(2)(A); see also 8 C.F.R. § 1003.25(c) (“An

Immigration Judge may conduct hearings through video

conference to the same extent as he or she may conduct

hearings in person.”).

Because the government did not make a reasonable effort

to produce Bunton for cross-examination, I would hold that

its reliance on the Bunton Letter violated Angov’s rights

under § 1229a(b)(4)(B).5

C

The government argues that the Bunton Letter should be

credited as trustworthy by employing the presumption of

regularity—that is, that government officials accurately

perform their reporting duties without bias. See Espinoza v.

4 At the very least, the State Department should be required to produce

some specific hardship or reason why it cannot produce the witness for

cross-examination, rather than relying on a general policy.

5 The four of our sister circuits to resolve this issue on constitutional

grounds did not discuss the procedural rights guaranteed under

§ 1229a(b)(4)(B). However, the reasoning they used in concluding

(unanimously) that the admission of unauthenticated, hearsay letters

during removal proceedings violates an alien’s procedural due process

rights counsels toward holding that such letters also violate the alien’s

statutory rights under § 1229a(b)(4)(B). We have recognized that the due

process right is closely related to the statutory right in this context. See

Bondarenko v. Holder, 733 F.3d 899, 907 (9th Cir. 2013) (“The due

process right, incorporated into 8 U.S.C. § 1229a(b)(4)(B), includes,

among other things, ‘a reasonable opportunity to examine the evidence

against the alien.’ (emphasis added; citations omitted)).
44 ANGOV V. HOLDER

INS, 45 F.3d 308, 310 (9th Cir. 1995) (holding that

“information on an authenticated immigration form is

presumed to be reliable in the absence of evidence to the

contrary presented by the alien”).

However, the presumption of regularity does not apply

when the source of information “was neither a government

offi c i a l nor the subj e c t of the r eport. ” 

Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 n.9

(9th Cir. 2005) (citing Espinoza, 45 F.3d at 310). The key

hearsay statement in the Bunton Letter comes from a

Bulgarian police employee, not a U.S. government official or

Angov. Statements made by third persons under no business

duty to report are not entitled to the presumption of reliability

and cannot be considered subject to the presumption, even if

included in a document that enjoys such a presumption. 

United States v. Pazsint, 703 F.2d 420, 424-25 (9th Cir.

1983); see also Pouhova v. Holder, 726 F.3d 1007, 1014–15

(7th Cir. 2013) (rejecting application of presumption of

reliability to hearsay statements of third parties recorded in

official documents); Jordan v. Binns, 712 F.3d 1123, 1133

(7th Cir. 2013) (“[T]he presumption of reliability that serves

as the premise for the public-records exception does not

attach to third parties who themselves have no public duty to

report.”).

Second, the presumption of reliability, similar to the

traditional hearsay exception for public records, applies to

documents “prepared in accordance with normal

recordkeeping requirements.” Espinoza, 45 F.3d at 310; see

also Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th Cir.

2001) (“It must be shown that the document has been

certified by the INS District Director as a true an[d] accurate

reflection of INS records.”). The Bunton Letter, summarizing
ANGOV V. HOLDER 45

the results of an investigation involving multiple individuals

and carried out at the behest of a party involved in litigation,

is not comparable to an authenticated immigration form

routinely filled out by border agents. Espinoza, 45 F.3d at

309. It is not a “business record” which is prepared in the

usual and ordinary course of business. It was not

authenticated or certified. It did not even conform with the

agency’s own reporting procedures, as described and set forth

in the Cooper Memo. Thus, the ad hoc Bunton Letter does

not qualify as a government document produced in

accordance with regular agency procedure.

For these reasons, I find the government’s arguments

unpersuasive.

II

Adjudicating asylum claims is necessarily an imperfect

endeavor. Witnesses to alleged foreign persecution are rarely

available; documents are often impossible to locate. The

immigration judge is often left with assessing witness

credibility as the only means of resolving the request for

relief. We are often limited to seeing through a glass, darkly.

As to post-REAL ID Act asylum seekers, the IJ may

require corroboration, even when presented with credible

testimony. See Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir.

2009) (“Where the trier of fact determines that the applicant

should provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless the

applicant does not have the evidence and cannot reasonably

obtain the evidence.” (quoting 8 U.S.C. § 1158(b)(1)(B)(ii))). 

We have sustained the BIA’s denial of relief founded on the
46 ANGOV V. HOLDER

inability of an asylum seeker to obtain corroboration. 

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

In the post-REAL ID Act world, when corroborating

evidence has assumed more importance, it is not unfair or

unduly burdensome to require the government to identify

basic, rudimentary information about its sources when it

challenges corroborating evidence so that the IJ can properly

weigh it. The information our sister circuits have demanded

is modest. They do not require that every detail be uncovered

or every riddle solved, they merely ask that very basic

foundational questions—already in the hands of the

Executive Branch—be answered. The Executive Branch

invests significant resources in forensic document analysts,

who provide detailed declarations in immigration cases. It is

not much to ask that in the case of routine foreign factchecking, the government simply tell us how it acquired the

facts upon which it asks us to deny asylum.

The alternative is a decision founded solely on

anonymous hearsay, often—as in this case—produced by the

very foreign government actors the asylum-seeker accuses of

persecution. We should be wary of relying on “secret

informers, whisperers and talebearers” to decide legal rights

in this context, especially when their word is used as the sole

basis to deny relief to an otherwise qualified applicant. See

Parker v. Lester, 227 F.2d 708, 719 (9th Cir. 1955)

(cautioning against relying on untrustworthy sources in

awarding security clearances to Coast Guard employees). 

The immigration system is fraught with enough risk of error. 

When it is reasonably possible, we need to minimize that risk.

I respectfully dissent.