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Banat v. Holder: IMMIGRATION - State Department letter deficient; immigration law judge erred relying on it; immigration law judge & courts have duty to not just accept blindly

United States Court of Appeals
No. 08-1298
Bassel R. Banat,
Eric H. Holder, Jr., Attorney
General of the United States of
Petition for Review of an
Order of the Board of
Immigration Appeals.
Submitted: November 13, 2008
Filed: March 6, 2009
Before RILEY, HANSEN, and MELLOY, Circuit Judges.
HANSEN, Circuit Judge.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr. is automatically substituted for former Attorney General Michael
B. Mukasey as respondent in this case.
Bassel Banat petitions for review of the Board of Immigration Appeals' (BIA)
order denying him asylum, arguing that his due process rights were violated when the
Immigration Judge (IJ) based his adverse credibility determination on a State
Department investigation report that Banat claims was inherently unreliable. We
agree that the report was unreliable, and we grant the petition.
Bassel Banat is a Palestinian refugee who was born and lived most of his life
in Beirut, Lebanon. He finished college in Beirut and visited his brother, a United
States citizen, in Minnesota in January 2001, where he attended college classes and
applied for admission into graduate programs in the United States. He was not
accepted to any graduate programs and originally planned to leave the United States
on September 6, 2001, with his father, who was also visiting the United States. For
unstated reasons, Banat decided to stay in the United States and did not return to
Beirut until December 30, 2001, when his visitor visa expired.
Banat returned to the United States less than four weeks later on January 25,
2002, using a Lebanese passport. Banat applied for asylum with the Immigration and
Naturalization Service (INS) on August 28, 2002. A hearing was held on October 4,
2005, and Banat testified on his own behalf. Banat testified that upon his return to
Beirut on January 1, 2002, he was approached at the Beirut airport by two men with
Syrian accents. He was told to go with the men to answer some questions, and he was
blindfolded, handcuffed, and driven away in a car. Lebanese officials at the airport
witnessed his abduction but did nothing to stop it. According to Banat's story, he was
held for several days at a Palestinian refugee camp, questioned, and beaten. His
captors spoke with Syrian accents, but he thought some were also Lebanese. The
outside of the building indicated it belonged to the Popular Front for the Liberation
of Palestine (PFLP). His captors accused him of working as a spy for the FBI or the
CIA and wanted to know why he changed his travel plans just before the terrorist
attacks of 9/11 and stayed in the United States for several months following. They
released him but did not take his passport and told him they might contact him for
further questioning. They also tried to recruit him to fight with them against Israel.
Following his release, Banat stayed at his family's home for about two weeks.
His father bought him a plane ticket and encouraged him to return to the United
States. Banat arrived back in the United States on January 25, 2002. After arriving
in the United States, Banat's father sent him a handwritten letter purporting to be from
the PFLP that had been sent to Banat's Lebanon address prior to his return to the
United States. The letter commanded Banat to return for questioning on January 26,
2002, and threatened that if Banat failed to report, "the arms of revolutionary justice
will reach you and get back at you. Death to the traitors . . . " (Pet'r's Add. at 42.)
Banat's parents allegedly received numerous threatening inquiries from the PFLP
about his whereabouts. When his father died, Banat did not attend the funeral, and
allegedly there were armed PFLP men at the funeral looking for Banat.
Banat introduced the handwritten PFLP letter at the October 4, 2005 hearing.
The IJ noted that the letter "purport[ed] on its face to be a letter addressed to [Banat]
from a recognized terrorist organization, the PFLP, which is one of the worst operators
. . . among the Palestinian terrorist organizations" (Pet'r's App. at 73), and that it
"ha[d] what purport[ed] to be an original seal of the PFLP" (id. at 75). The
Department of Homeland Security (DHS) had not verified the authenticity of the
letter, and the IJ inquired with the State Department about its authenticity. The State
Department responded with a letter dated March 22, 2006, wherein it acknowledged
that the U.S. Embassy in Beirut had not had any previous experience with that type
of document, but that its investigation suggested that the letter had been fabricated.
The IJ forwarded a copy of the State Department letter to the parties and held another
hearing on May 26, 2006. Banat objected to introduction of the State Department
letter into evidence, arguing that it was "internally inconsistent, . . . inherently
unreliable, improper evidence, [a] violation of due process, [and afforded Banat] no
opportunity to cross-examine." (Id. at 91.) Although Banat's counsel stated he could
get affidavits from others contesting statements in the State Department letter, he did
not offer them at the hearing. The IJ issued an oral decision finding that Banat was
not credible based primarily on the IJ's conclusion that the PFLP letter had been
fabricated. The IJ denied Banat's request for asylum, withholding of removal, and
relief under the Convention Against Torture.
Banat appealed the IJ's decision to the BIA. The BIA dismissed the appeal,
concluding that introduction of the State Department letter did not violate Banat's due
process rights, and it affirmed the IJ's adverse credibility determination. Banat now
seeks review of the BIA's order dismissing his appeal.
In an appeal from the BIA, we review the BIA's fact-findings for substantial
evidence, and we review its legal determinations, as well as any constitutional
challenges, de novo. Ntangsi v. Gonzales, 475 F.3d 1007, 1011-12 (8th Cir. 2007).
Where the BIA adopts the IJ's reasoning, we review the IJ's decision as well. See
Bhosale v. Mukasey, 549 F.3d 732, 735 (8th Cir. 2008). The IJ determined that if
Banat's story had been credible, he would have found that Banat suffered past
persecution and would have been entitled to relief. (Pet'r's Add. at 29.) The IJ
ultimately discredited Banat's testimony, however, relying on the State Department
letter's determination that the handwritten PFLP letter had been fabricated, coupled
with the lack of any other corroboration for Banat's story. Adverse credibility
determinations, like other findings of fact, must be supported by substantial evidence.
See Mamana v. Gonzales, 436 F.3d 966, 968 (8th Cir. 2006). "An IJ making a[n
adverse] credibility determination must give reasons that are specific enough that a
reviewing court can appreciate the reasoning behind the decision and cogent enough
that a reasonable adjudicator would not be compelled to reach the contrary
conclusion." Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008) (internal marks
omitted). The BIA affirmed the IJ's credibility finding based on its conclusion that
introduction of the State Department letter did not violate Banat's right to due process.
Banat argues that his due process rights were violated when the IJ relied on the
State Department letter to make his adverse credibility determination. Although the
Federal Rules of Evidence are not controlling in an immigration proceeding, the Fifth
Amendment right to due process places limits on the evidence that may be considered
in an immigration hearing. Tamenut v. Ashcroft, 361 F.3d 1060, 1061 (8th Cir.
2004). Due process requires that the IJ consider only evidence that is "probative and
its admission fundamentally fair." Tun v. Gonzales, 485 F.3d 1014, 1025-26 (8th Cir.
2007) (internal marks omitted). The focus in a due process inquiry is on fairness. "'In
the evidentiary context, fairness is closely related to the reliability and trustworthiness
of the evidence.'" Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003) (quoting
Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996)). Thus, Banat must show that the
State Department letter was unreliable and untrustworthy and therefore improperly
considered in violation of his right to due process.
Banat's due process claim turns on the reliability of the investigation conducted
by the State Department in response to the IJ's inquiry about the authenticity of the
handwritten PFLP letter. We recognize 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. See,
e.g., Rafiyev v. Mukasey, 536 F.3d 853, 856-57 (8th Cir. 2008) (affirming IJ's
determination that documents were fraudulent based on examination by foreign
document examiner and investigation by the U.S. Embassy in Azerbaijan).
Nonetheless, when a report of an investigation concerning the authenticity of a
document is presented in an asylum hearing, sufficient evidence must be presented to
allow the IJ to determine the investigation's reliability and trustworthiness without
surrendering that function to the author of the report. See Alexandrov v. Gonzales,
442 F.3d 395, 405 (6th Cir. 2006) (reiterating that IJs and the BIA "should exercise
extreme caution in relying on" State Department reports to deny asylum claims
because "excessive deference to the government or a shallow evaluation of the
evidence by the immigration court would be unwarranted" (internal marks omitted));
cf. Averianova v. Mukasey, 509 F.3d 890, 896 (8th Cir. 2007) (affirming IJ's
conclusion that an INS investigation was trustworthy based on photographic evidence
introduced by the INS that corroborated the investigation's results).
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. See Anim v. Mukasey, 535 F.3d 243, 257 (4th
Cir. 2008). "The Department of Justice itself has recognized the need for a detailed
[investigation] report." Lin v. U.S. Dep't of Justice, 459 F.3d 255, 270 (2d Cir. 2006).
According to the Department of Justice, "'[a] report that is simply a short statement
that an investigator has determined an application to be fraudulent is of little benefit.
Instead, the report should lay a proper foundation for its conclusion by reciting those
factual steps taken by the investigator that caused the investigator to reach his or her
conclusion.'" Id. (quoting Memorandum from Bo Cooper, INS General Counsel, to
Jeffrey Weiss, INS Director of International Affairs, Confidentiality of Asylum
Applications and Overseas Verification of Documents and Application Information,
at 6 (June 21, 2001)). For purposes of assessing the reliability of an investigation
report, the Second Circuit distilled the Department of Justice's list of items that
should be included in such a report down to three useful factors, including: "(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; see also Anim, 535 F.3d at 257-58 (discussing the same Department of Justice
requirements for an investigation report); Ezeagwuna, 325 F.3d at 407-08 (expressing
concern over the INS's attempt to use the prestige of the State Department letterhead
to give credibility to an investigation report's contents); Balde v. Mukasey, 278 Fed.
Appx. 707, 709 (8th Cir. 2008) (unpublished) (citing Lin as describing the factors
courts use to assess the reliability of investigation reports).
The State Department letter in this case states that "an investigator" from the
U.S. Embassy in Beirut met with "a contact" who worked closely with the Palestine
Liberation Organization (PLO) and the PFLP; that the contact was shown a copy of
the handwritten PFLP letter; and that the contact said it was fabricated based on three
facts: the person identified as the author of the PFLP letter was unknown and would
not sign such documents, the PLO and PFLP do not issue those types of documents,
and the PFLP seal is widely available, making it easy to fabricate a letter from the
PFLP. (Pet'r's Add. at 45.) From that, the State Department concluded that the PFLP
letter had been fabricated. In the State Department report of the results of the
investigation to the IJ, the investigator is not identified. All the report conveys is that
the unidentified investigator showed the PFLP letter to an unidentified contact. There
is no indication of the qualifications or experience of either the investigator or the
contact. The extent of the investigation included merely showing the letter to the
unidentified contact. And there is no indication that any attempt was made to verify
the claims made by the unidentified contact. None of the Lin factors are met.
Investigation reports that contained even more information about their respective
investigations have been found to be too cursory to satisfy due process concerns. See
Anim, 535 F.3d at 258 ("In short, the letter's lack of information about the [unnamed]
investigator, how the investigation was conducted, and how and why the named
official reached his forgery conclusion make it practically impossible to assess the
letter's reliability."); Alexandrov, 442 F.3d at 407 (holding that reliance on a State
Department memorandum declaring documents to be fraudulent violated the
petitioner's right to due process where the memorandum did "not clarify to any degree
what type of investigation was conducted or who the investigator was"); Lin, 459 F.3d
at 271-72 (finding an investigation report unreliable where, although it named the
investigators, it provided no information about their qualifications, did not detail when
and where conversations occurred upon which the report's conclusions relied, and it
did not detail what actions were taken to verify the information provided in the
report); Ezeagwuna, 325 F.3d at 408 (concluding "that the complete dearth of
information about the investigator or the investigation undermines the [investigation]
letter as . . . untrustworthy").
Not only does the State Department letter fail to provide any details about the
investigation, it also includes multiple levels of hearsay. The letter was written by
Nadia Tongour, Office Director for the Office of Country Reports and Asylum
Affairs. In the letter, Ms. Tongour relayed information received from an unnamed
investigator from the U.S. Embassy in Beirut who discussed the PFLP letter with an
unnamed contact. There are at least three levels of hearsaythe contact to the
Embassy investigator, the investigator to Ms. Tongour, and Ms. Tongour's written
reportand likely more levels as it is not clear from the State Department letter that
Ms. Tongour received the information she reported directly from the investigator.
Although hearsay in and of itself is not prohibited in immigration proceedings, see 8
C.F.R. 1240.7(a), "[h]ighly unreliable hearsay might raise due process problems."
Alexandrov, 442 F.3d at 405. "Multiple hearsay, where the declarant is steps removed
from the original speaker, is particularly problematic because the declarant in all
likelihood has been unable to evaluate the trustworthiness of the original speaker."
Anim, 535 F.3d at 257. These concerns played out in this case. During the hearing,
Banat questioned the reliability of the contact based on his alleged close ties to both
the PFLP and the PLO, two groups who, according to Banat, are at odds with each
other. Without more information about the contact or what the Embassy investigator
did to corroborate the contact's reasons for concluding that the PFLP letter was
fabricated, Banat is not able to effectively challenge the contact's credibility, and the
IJ has no information on which to base a credibility assessment of the contact, the
original speaker who concluded that the PFLP letter had been fabricated.
We understand that hearsay in the form of a report of an investigation
conducted by State Department officials is often the only practical method for
addressing the authenticity of foreign documents, and such hearsay evidence is
allowed in immigration hearings where it is otherwise shown to be trustworthy. We
fully recognize that divulging more information concerning the particulars of the
investigations undertaken may, in some cases, run the very real risk of compromising
and jeopardizing the physical safety of the clandestine sources, confidential contacts,
and investigators (whether undercover or not) used by the State Department and the
other agencies of the Executive Branch in foreign countries, particularly in the
dangerous and shadowy world of dealing with violent terrorist organizations; and we
readily admit that a proper balancing of the risks involved in such undertakings and
in what to report openly about them is not within the ken (or the constitutional
responsibility) of federal courts so far removed from the scene. However, as in this
case, it does become the business of immigration judges and reviewing authorities like
us to assess the reliability of the reports that are produced, and the report in this case
was glaringly deficient in providing the most basic indicia of its circumstantial
probability of reliability. There is no information provided about whether or not the
Embassy had used either the "investigator" or the "contact" as a source of information
in the past; whether the "investigator" was experienced or had any particular training
in conducting such investigations; whether or not the "investigator" or the "contact"
had provided any information that had proved to be correct and reliable in the past;
and there is no representation that the Embassy itself considered the "contact" to be
either reliable or well informed, or even knowledgeable about the reported matters.
We conclude 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.
To be entitled to relief based on a due process violation, Banat must also show
prejudice, or that the procedural error "had the potential for affecting the outcome."
Tun, 485 F.3d at 1026 (internal marks omitted). "[W]here a hearsay document is
admitted but not primarily relied upon and the petitioner receives the opportunity to
rebut the document's conclusions through his witnesses, the fundamental fairness of
the proceedings has not been impinged." Alexandrov, 442 F.3d at 406-07 (internal
marks omitted). The State Department letter clearly had an effect on the outcome of
Banat's asylum hearing. The IJ's conclusion that Banat was not entitled to asylum
"turn[ed] entirely on issues of credibility." (Pet'r's Add. at 29.) The PFLP letter was
the only contemporaneous corroboration for Banat's story, and the IJ relied heavily on
the State Department letter to find that the PFLP letter had been fabricated. The IJ
then relied primarily on the fabricated PFLP letter to support his conclusion that
Banat's story was not credible. The IJ stated that if he would have found Banat
credible, he would have been entitled to relief. (Id.) We agree with Banat that if the
IJ did not consider the unreliable State Department letter, the proceeding may well
have had a different outcome. See Anim, 535 F.3d at 258-59 (finding prejudice from
an IJ's reliance on an unreliable investigation report where the IJ stated that the fraud
investigation would determine whether he believed the petitioner's story or not);
Alexandrov, 442 F.3d at 407 (finding prejudice where the unreliable investigation
report was the sole piece of evidence relied upon by the IJ for its adverse findings).
Banat was prejudiced when the IJ relied on the State Department letter to find
Banat not credible in violation of Banat's right to due process during his asylum
hearing. We therefore grant the petition for review, vacate the BIA's decision, and
remand for further proceedings not inconsistent with this opinion. See Tun, 485 F.3d
at 1031.


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