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Media Alerts - Nicolay Ivanov Angov v. Loretta E. Lynch, Attorney General - Ninth Circuit
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September 15, 2015
  Nicolay Ivanov Angov v. Loretta E. Lynch, Attorney General - Ninth Circuit
Headline: Alien seeking asylum in the U.S. denied the right to cross-examine an investigator who wrote a report showing he submitted fraudulent documents in support of his alleged persecution.

Area of Law: Constituional Law; Immigration Law; Asylum Law

Issues Presented:

(1) Whether an Immigrant who has never entered the United States is afforded procedural due process rights under the constitution.

(2) Whether Angov was denied his right to examine evidence against him pursuant to 8 U.S.C. § 1229a(b)(4)(B) when the government failed to produce foreign police officials and U.S. State Department of Asylum Affairs officials to be cross examined by an asylum applicant.

(3) Whether Angov "presented evidence so compelling that no reasonable factfinder could find that [Angov] was not credible."
Brief Summary: Alleged persecution by Bulgarian officials led Nikolay Angov to seek asylum here in the United States. At his asylum hearing, the government presented an investigation report that tended to show Angov produced fraudulent documents as evidence for his asylum. Angov requested that the investigating officer be present at his hearing so Angov could cross-examined him. Angov argued that admitting the investigators report, without availing the investigator, deprived him of due process and statutory rights to cross-examine a witness who testified against him. The court rejected Angov's argument holding immigrants who have not 'entered' the United States are not afforded the same constitutional rights as those who have 'entered' the country. The Ninth and Second Circuits are split on admitting evidence of this nature.

Significance

Immigrants seeking asylum in the United States cannot bring due process challenges in the Ninth Circuit if they have not 'entered' this county, nor do they have statutory rights to cross-examine the witnesses against them if it would be unreasonable to require the witness to testify.

Extended Summary:

Nikolay Angov, a Bulgarian citizen, claimed he was consistently persecuted by Bulgarian police because of his gypsy lifestyle. Angov stated he was subjected to police beatings, false accusations and illegitimate arrests. Angov sought asylum in the US to escape the hostile environment in his home country of Bulgaria. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) ("When granted asylum the alien may be eligible for adjustment of status to that of a lawful permanent resident . . . subject to numerical limitations and the applicable regulations."). Angov never formally entered the United States before submitting his application for asylum.

At his asylum hearing, Angov presented several documents as evidence of police misconduct including two Bulgarian subpoenas that ordered him to appear at a police station.

In response to Angov's application for asylum, the government conducted its own investigation through a U.S. consult in Bulgaria. The results of the investigation were summarized in a report which revealed countless flaws in Angov's documents, specifically the subpoena's, which included names of police officers who did not exist, stated the wrong case number, and were stamped with seals that were too small. While technically hearsay, the letter was highly probative of Agnov committing fraud to gain access to the U.S.

Angov and his attorney submitted a plethora of rebuttable evidence in response to the governments incriminating letter. Angov also requested the opportunity to cross-examine the investigators who wrote the letter, but the State Department refused. In its response, the Department explained it is State policy to refrain from disclosing specific information from an overseas investigation except for general procedural aspects of the investigation. Angov argued he was denied his procedural due process rights because he was not given the opportunity to cross-examine the witness who testified against him. Over Angov's objections, the Immigration Judge made an adverse credibility finding based on the letter, and denied Angov's application for asylum in the United States.

Angov appealed to the Board of Immigration Appeals but the board affirmed the Immigration Judge's decision not granting Angov asylum. Angov took his case up a second time claiming (1) he was denied his due process rights, (2) that he was denied statutory right and (3) that he provided enough evidence to overturn the Immigration Judge's decision.

Whether an Immigrant who has never entered the United States is afforded procedural due process rights under the constitution.

Once an alien has entered the United States, even if illegally, they are afforded full procedural due process protections. An alien who has not formally entered the United States however, has no constitutional right to procedural due process. "An alien seeking admission has not 'entered' the United States, even if the alien is in fact physically in the US."

The court held Angov never entered the United States. Due process rights did not kick in just because Angov showed up at a port in San Diego without valid entry documents seeking asylum. The court makes a distinction between immigrants living in the United States and immigrants seeking to live in the United States. The former are afforded constitutional due process protections while the latter are not. For this reason, Angov had no due process challenge because he has no due process rights as an immigrant seeking admission into the United States. The court was short in its due process analysis, simply concluding Angov did not 'enter' the United States.

Whether Angov was denied his right to examine evidence against him pursuant to 8 U.S.C. § 1229a(b)(4)(B) when the government failed to produce foreign police officials and the Director of the U.S. State Department of Asylum Affairs to be cross examined by an asylum applicant.
Angov claims he was denied his right to examine the witnesses against him pursuant to 8 U.S.C. § 1229a(b)(4)(B). But during an immigration hearing, the judge is not required to present every possible foreign witness who will testify against an immigrant, such would make it impossible to present adverse evidence against the immigrant. Instead, the government must only make reasonable efforts to provide an immigrant with the opportunity to confront the witnesses against him.
It was Angov's position that the author of the investigative report, the Bulgarian police officials, and the Director of the U.S. State Department of Asylum Affairs should have been brought to his hearing for an opportunity to be cross-examined. The court quickly and logically dispensed of this theory based on the tremendous burden this would place on all immigration hearings. If that were the case, it would be nearly impossible to present rebuttable evidence at an immigration hearing because the source of any information would need to be present. The onerous hurdles are obvious.
Whether Angov presented substantial evidence so compelling that no reasonable factfinder could find that Angov was not credible.
As a final effort to reverse the immigration judge's decision, Angov attempted to rebut the government's letter by presenting substantial evidence "so compelling that no reasonable factfinder could find that Angov was not credible." If Angov were able to meet this strict standard, the Ninth Circuit would reverse the immigration boards decision based solely on the evidence presented. During its analysis, the court again went into a discussion about the admissibility of the investigative report, addressing a jurisdictional split with the Second district.

Angov cited a per se Second Circuit rule in arguing the Ninth Circuit "must blind themselves" of the State Departments letter unless "it provide[d] particular information regarding how an investigation was conducted." The Ninth Circuit eagerly ignored the Second Circuit's per se rule requiring further explanation calling it an invitation to "craft quasi-statutory criteria [for] governing the admissibility of evidence in agency proceedings." Unlike the Second District, this court does not believe documents of this nature are inherently unreliable.

The majority opinion noted that Congress and the Attorney General have given immigrants seeking admission to the United States a variety of procedural rights, such as the right to a hearing represented by counsel, the right to examine evidence against him, and the right to cross examine the witnesses against him. The court refused to extend these rights to include barring a reliable State Department letter which provided clear evidence of fraud just because the investigator (who will likely always be in a foreign country) is not present. There is no reason to generally cast doubt on countless US agency documents unless there is something particularly unreliable about a specific one document. There are obvious incentives for entering the United States, and the Ninth Circuit court refused to reward fraudulent activities to open the door.

Dissent

The dissent would join the Second Circuit in reviewing the State Departments letter. Chief Judge Thomas believes "unsworn, unauthenticated, hearsay letters - prepared for litigation by the government an not subject to any form of cross examination - cannot form a sole basis for denying asylum to an otherwise qualified applicant." To Thomas, admitting a report that was formed for litigation purposes, without presenting the investigator who prepared the document, gives the executive agency an unfair amount of unchallenged authority. He also feels Angus should have the right to due process challenges.

The dissent also showed concern with the lack of information the agency provided to support the contents of the investigative report. Essentially the government agency, in this case the Department of State's Office of Country Reports and Asylum Affairs, will perform an investigation and report its findings without providing any information as to how the investigation was conducted or establishing the credibility of the investigator. The dissenting opinion was unhappy with the lack of information required to support a document of this kind.

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/06/08/07-74963.pdf

Panel: Sidney R. Thomas, Chief Judge, Alex Kozinski and Stephen S. Trott, Circuit Judges

Date of Issued Opinion: June 8, 2015

Docket Number: 07-74963

Decided: Affirmed the Board of Immigrations Appellate decision, which affirmed the Immigration Judge's decision to deny asylum.

Case Alert Author: Brian D. Shapiro

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.

Author of Majority Opinion: Judge Kozinski

Author of Dissenting Opinion: Chief Judge Thomas

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/15/2015 03:42 PM     9th Circuit  

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