Circuit Split on Due Process in Asylum

The 9th Circuit Court of Appeals broke with five other circuits Wednesday to allow immigration judges to consider unsworn, unauthenticated hearsay letters in denying asylum to someone otherwise qualified.

The panel split 2-1 to hold that consideration of such a letter did not violate due process, although five other circuits have found that it does.

This decision rejects asylum for a Bulgarian gypsy who alleged he was subjected to repeated beatings and false accusations of crimes by Bulgarian police.  The State Department submitted the hearsay letter that his claims were likely fraudulent.

Nikolay Angov fled Bulgaria for the U.S. and sought asylum.  He presented two Bulgarian subpoenas that ordered him to appear at a local police station as evidence of discrimination.

But a U.S. Department of State investigation in Sofia, Bulgaria, contacted police to verify his claims.  Police said the subpoenas appeared to be forgeries and the U.S. investigator could not find Angov’s address in Sofia.

The information was detailed in a State Dept. letter to the asylum judge.  Angov wanted the U.S. to produce an employee to testify about the investigation but received only a letter with general information.

He argued he was denied his right to cross-examine the witesses against him and his due process rights were violated.

The immigration judge found Angov’s asylum claims lacked credibility and denied his request.

In rejecting Angov’s appeal, Chief Judge Alex Kozinski said the five other circuits have given the “already shaky system” of unchecked asylum petition claims “a swift kick in the gut.”  He said, “The rulings make it pretty much impossible for the immigration authorities to carry out even the little bit of fact checking they now manage to do.”

“The government here did make a reasonable effort to obtain a witness from the Department of State, but was prevented from doing so by State’s policy of not releasing follow-up information regarding its overseas investigations,” wrote Kozinski.

As for Angov’s constitutional due process violation claim, Kozinski said, “We see little merit in this argument, but, surprisingly, five of our sister circuits disagree.”

“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 applications fall prey,” he said.

Kozinski continued his rant about the asylum system by pointing out another Bulgarian who claimed persecution as a gypsy, Pavel Pavlov, had to admit his asylum application was a “tissue of lies” and that he wasn’t even a gypsy.

“Americans galore wind up in federal prison every year for far less significant lies on government forms or bank loan applications,” he said.

The majority held the immigration judge acted within his discretion when he admitted the State Department letter as evidence that Angov’s subpoenas were frauds.

In dissent, Judge Sidney Thomas said he would join the five other circuits that consider these unauthenticated hearsay letters cannot form the sole basis for denying asylum.

“We have long criticized the practice of using anonymous hearsay as the basis for denying constitutional rights, without affording due process,” he said, pointing to a 1955 case.

Case:  Angov v. Holder, No. 07-74963

 

 

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