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Badasa v. Mukasey: IMMIGRATION - remand; immigration judge used Wikipedia for evidence at Department of Human Service's urging

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2276
___________
Lamilem Badasa, *
*
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
Michael B. Mukasey, Attorney *
General of the United States, *
*
Respondent. *
___________
Submitted: March 14, 2008
Filed: August 29, 2008
___________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Lamilem Badasa entered the country illegally using a fraudulent Italian
passport. She later applied for asylum under 8 U.S.C. 1158 and for relief under
Article III of the Convention Against Torture. The Immigration Judge (IJ) found that
Badasa had submitted fraudulent documents designed to establish her identity, and
that her claim was not credible. The Board of Immigration Appeals (BIA) initially
dismissed her administrative appeal, concluding that Badasa had failed to establish her
identity. Badasa moved to reopen her case based on a travel document recently
acquired from the Ethiopian government, known as a laissez-passer, which Badasa
-2-
alleged would establish her identity. Noting that the Department of Homeland
Security (DHS) concurred in the motion, the BIA reopened the case and remanded it
to the IJ for further consideration.
On remand, the DHS submitted several documents designed to explain the
purpose of a laissez-passer, and argued that the document did not establish identity
and nationality, but rather was simply the granting of the authorization for an alien
to travel to or from that country. After considering evidence presented by the parties,
including information submitted by the DHS from an Internet website known as
Wikipedia, the IJ found that the laissez-passer is a single-use, one-way travel
document that is issued based on information provided by the applicant. On this basis,
the IJ concluded that the Ethiopian governments issuance of the travel document did
not change her prior decision regarding Badasas failure to prove her identity, and
therefore denied the application for asylum.
The BIA dismissed Badasas appeal, concluding that the IJs determination that
the laissez-passer travel document was insufficient to establish Badasas identity was
not clearly erroneous. The BIA stated that it did not condone or encourage the use
of resources such as Wikipedia.com in reaching pivotal decisions in immigration
proceedings, and commented that the IJs decision may have appeared more solid
had Wikipedia.com not been referenced. The BIA declined, however, to find that
Badasa was prejudiced, because without considering Wikipedia, the BIA believed the
IJs conclusion was supported by enough evidence to find no clear error.
We conclude that the case must be remanded for further proceedings, because
the BIA failed adequately to explain its conclusion that Badasa did not establish her
identity. See SEC v. Chenery Corp., 318 U.S. 80, 94-95 (1943). The BIA did not
adopt the entirety of the IJs reasoning for rejecting Badasas claim. Rather, the BIA
acknowledged that it was improper for the IJ to consider information from Wikipedia
in evaluating Badasas submission on remand, and the government does not dispute
-3-
that conclusion here. Wikipedia describes itself as the free encyclopedia that anyone
can edit, urges readers to [f]ind something that can be improved, whether content,
grammar or formatting, and make it better, and assures them that [y]ou cant break
Wikipedia, because [a]nything can be fixed or improved later. Wikipedia:
Introduction, http://en.wikipedia.org/wiki/Wikipedia:Introduction (last visited August
7, 2008). Wikipedias own overview explains that many articles start out by
giving one perhaps not particularly evenhanded view of the subject, and it is after
a long process of discussion, debate, and argument that they gradually take on a
consensus form. Wikipedia: Researching with Wikipedia, http://en.wikipedia.org/
wiki/Wikipedia:Researching_with_Wikipedia (last visited August 7, 2008). Other
articles, the site acknowledges, may become caught up in a heavily unbalanced
viewpoint and can take some time months perhaps to regain a better-balanced
consensus. Id. As a consequence, Wikipedia observes, the websites radical
openness means that any given article may be, at any given moment, in a bad state:
for example, it could be in the middle of a large edit or it could have been recently
vandalized. Id. The BIA presumably was concerned that Wikipedia is not a
sufficiently reliable source on which to rest the determination that an alien alleging
a risk of future persecution is not entitled to asylum. See also Campbell v. Secy of
Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006) (observing that a
review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing
set of disclaimers); R. Jason Richards, Courting Wikipedia, 44 Trial 62 (Apr. 2008)
(Since when did a Web site that any Internet surfer can edit become an authoritative
source by which law students could write passing papers, experts could provide
credible testimony, lawyers could craft legal arguments, and judges could issue
precedents?).
The BIA did say that Badasa was not prejudiced by the IJs reliance on
Wikipedia, but it made no independent determination that Badasa failed to establish
her identity. Whereas the BIA sometimes applies a harmless error standard when
an IJ considers improper evidence or makes other procedural error, see Matter of
-4-
Santos, 19 I. & N. Dec. 105 (BIA 1984); In re Samuel Cardona, 2008 WL 1734684
(BIA 2008); In re Juan Jose Flores-Amezcua Eulalia Pereda, 2004 WL 2943392
(BIA 2004), and thereby evaluates whether the error affected the IJs ultimate
conclusion, the BIA here determined only that there was sufficient evidence, other
than Wikipedia, to establish that the IJs finding was not clear error. This is the
correct scope of review when an IJ has made findings of fact based on proper
evidence, 8 C.F.R. 1003.1(d)(3)(i), but application of the deferential clear error
standard to this situation leaves us without a determination by the agency as to
whether Badasa proved her identity. We know only that the BIA thinks that if,
hypothetically, the IJ had not considered Wikipedia and reached the same conclusion,
then that conclusion would not be clearly erroneous. But we do not know whether the
IJ would have reached the same conclusion without Wikipedia, or whether (and, if so,
why) the BIA believes that the IJs consideration of Wikipedia was harmless error, in
the sense that it did not influence the IJs decision. Because the BIAs ultimate
conclusion that Badasa failed to establish her identity is not adequately explained, we
must remand for further proceedings. See Shahinaj v. Gonzales, 481 F.3d 1027, 1029
(8th Cir. 2007).
The petition for review is granted, and the case is remanded to the BIA.
______________________________
 

 
 
 

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