No. 07-74963

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

NIKOLAY IVANOV ANGOV,Petitioner,

– v. –

ERIC H. HOLDER, Jr., Attorney General,Respondent.

On Petition for Review of an Order of theBoard of Immigration Appeals

BRIEF OF THE AMERICAN IMMIGRATION COUNCIL,CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL

LAW, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OFTHE SAN FRANCISCO BAY AREA, AND NATIONAL

IMMIGRATION PROJECT OF THE NATIONAL LAWYERSGUILD AS AMICI CURIÆ IN SUPPORT OF

THE PETITION FOR REHEARING EN BANC

Eugene R. FidellYale Law SchoolSupreme Court Clinic127 Wall StreetNew Haven, CT 06511(203) 432-4852

Charles A. RothfeldMichael B. KimberlyPaul W. Hughes

Mayer Brown LLP1999 K Street NWWashington, DC 20006(202) 263-3127mkimberly@mayerbrown.com

Counsel for amici curiæ

i

CORPORATE DISCLOSURE STATEMENTS

The American Immigration Council, Center for Human Rights and

Constitutional Law, Lawyers’ Committee for Civil Rights of the San Fran-

cisco Bay Area, and National Immigration Project of the National Lawyers

Guild all are non-profit corporations that do not issue stock or have parent

corporations.

ii

TABLE OF CONTENTS

Corporate Disclosure Statements .................................................... i

Table of Authorities ........................................................................ iii

Interest of the Amici .........................................................................1

Preliminary Statement.....................................................................1

Argument...........................................................................................6

I. Angov’s statutory rights were violated......................................6

A. Uncorroborated double-hearsay reports like theBunton letter are not substantial evidence ........................6

B. Angov’s statutory cross-examination right wasviolated............................................................................... 12

II. Angov’s constitutional rights were violated........................... 13

A. Paroled asylum-seekers like Angov are protectedby the Due Process Clause................................................ 14

B. Denying asylum based solely on unreliableevidence violates a noncitizen’s due process rights......... 16

Conclusion ...................................................................................... 20

APPENDIX

Cooper memorandum ....................................................................A1

Bunton letter ..................................................................................A8

Tongour letter ..............................................................................A10

iii

TABLE OF AUTHORITIES

Cases

Alexandrov v. Gonzales,442 F.3d 395 (6th Cir. 2006)......................................................... 9, 11

Anim v. Mukasey,535 F.3d 243 (4th Cir. 2008)............................................... 8, 9, 10, 11

Baliza v. INS,709 F.2d 1231 (9th Cir. 1983)........................................................... 13

Banat v. Holder,557 F.3d 886 (8th Cir. 2009)......................................................... 8, 11

Brown v. Plata,131 S. Ct. 1910 (2011) ....................................................................... 10

Calhoun v. Bailar,626 F.2d 145 (9th Cir. 1980)................................................................7

Cinapian v. Holder,567 F.3d 1067 (9th Cir. 2009)..................................................... 14, 15

Clemente v. United States,766 F.2d 1358 (9th Cir. 1985)..............................................................9

Ezeagwuna v. Ashcroft,325 F.3d 396 (3d Cir. 2003) .......................................................... 9, 11

Greene v. McElroy,360 U.S. 474 (1959)............................................................................ 18

Guo v. Ashcroft,361 F.3d 1194 (9th Cir. 2004)....................................................... 2, 12

Haitian Ctrs. Council v. McNary,969 F.2d 1326 (2d Cir. 1992) ............................................................ 15

Huang v. Attorney General,376 F. App’x 253 (3d Cir. 2010)........................................................ 20

iv

Cases—continued

Huang v. Holder,493 F. App’x 220 (2d Cir. 2012)........................................................ 19

Karim v. Holder,596 F.3d 893 (8th Cir. 2010)............................................................. 20

Kiyemba v. Obama,561 F.3d 509 (D.C. Cir. 2009) ........................................................... 17

Lanza v. Ashcroft,389 F.3d 917 (9th Cir. 2004)....................................................... 17, 18

Lin v. Dep’t of Justice,459 F.3d 255 (2d Cir. 2006) .................................................... 9, 10, 11

Malave v. Holder,610 F.3d 483 (7th Cir. 2010)............................................................. 13

Marincas v. Lewis,92 F.3d 195 (3d Cir. 1996) ................................................................ 16

Mathews v. Eldridge,424 U.S. 319 (1976)............................................................................ 16

Morton v. Ruiz,415 U.S. 199 (1974)...............................................................................9

Nadarajah v. Gonzales,442 F.3d 1069 (9th Cir. 2006)........................................................... 13

Nat’l Archives & Records Admin. v. Favish,541 U.S. 157 (2004)............................................................................ 10

Oliva-Ramos v. Attorney General,694 F.3d 259 (3d Cir. 2012) .............................................................. 13

Oshodi v. Holder,729 F.3d 883 (9th Cir. 2013)....................................................... 14, 17

Richardson v. Perales,402 U.S. 389 (1971)................................................................ 2, 7, 8, 10

v

Cases--continued

Rodriguez v. Robbins,715 F.3d 1127 (9th Cir. 2013)........................................................... 13

Saidane v. INS,129 F.3d 1063 (9th Cir. 1997)....................................................... 2, 12

Shah v. BIA,314 F. App’x 326 (2d Cir. 2008)........................................................ 19

Yiu Sing Chun v. Sava,708 F.2d 869 (2d Cir. 1983) .............................................................. 16

Statutes & Treaties

8 U.S.C. §1202(F)....................................................................................2

8 U.S.C. §1225(b)(1)(B)(ii)............................................................ 2, 13, 15

8 U.S.C. §1229a(b)(4)(B) ................................................................ 2, 5, 12

8 U.S.C. §1231(b)(3)(A) .......................................................................... 15

8 U.S.C. §1252(b)(4)(B) ........................................................................ 2, 6

Protocol Relating to the Status of Refugees,19 U.S.T. 6223, art. 33(1) (1968) ........................................................ 15

Miscellaneous

Executive Office for Immigration Review, FY 2012Statistical Year Book (Rev. March 2013)(available at http://perma.cc/5XBJ-EU9B) ........................................ 19

John Guendelsberger, Circuit Court Decisions forJanuary 2014, 8 Immigration Law Advisor 3 (Feb. 2014)(available at http://perma.cc/8AGP-E5JB) ........................................ 18

Office of Immigration Statistics, 2011 Yearbook ofImmigration Statistics (Sept. 2012)(available at http://perma.cc/ZLW3-KEKH)...................................... 19

vi

Miscellaneous—continued

Jaya Ramji-Nogales, Andrew I. Schoenholtz & Phillip G. Schrag,Refugee Roulette: Disparities in Asylum Adjudication,60 Stan. L. Rev. 295 (2007)(available at http://perma.cc/9USJ-MFT9)........................................ 19

UN High Commissioner for Refugees, Country of OriginInformation: Towards Enhanced International Cooperation(Feb. 2004) (available at http://tinyurl.com/Angov1) ...........................3

U.S. Courts of Appeals—Appeals Terminated on the Merits, byCircuit, During the 12-Month Period Ending March 31, 2013(available at http://perma.cc/Y3MC-YZH9) ....................................... 18

1

INTEREST OF THE AMICI

The American Immigration Council, Center for Human Rights and

Constitutional Law, Lawyers’ Committee for Civil Rights of the San Fran-

cisco Bay Area, and National Immigration Project of the National Lawyers

Guild advocate for the rights of noncitizens and have extensive experience

with the issues presented here. Fuller descriptions of the amici and their

interests are presented in the motion accompanying this brief.1

PRELIMINARY STATEMENT

This case presents a recurring question of tremendous practical

importance to asylum-seekers throughout the circuit: whether uncorro-

borated, anonymous hearsay evidence can form the sole basis for denying

asylum to an otherwise eligible noncitizen. In an opinion that brushed

aside the very serious statutory and constitutional rights at stake here

(along with several prior decisions of this Court and the authoritative

holdings of five other circuits), the panel majority concluded that it could.

That decision has distorted the Nation’s immigration laws and is upsetting

their uniform administration. En banc review is therefore imperative.

1. Congress has enacted a number of procedural requirements to

ensure that removal proceedings are fundamentally fair. Two are relevant

1 Amici have moved for leave to file this brief. No party’s counselauthored this brief in whole or in part. No party, party’s counsel, or otherperson contributed money for the preparation or submission of this brief.

2

here. First, reversal of an IJ’s findings of fact is required when “any

reasonable adjudicator would be compelled to” reject them. 8 U.S.C. §1252-

(b)(4)(B). That means that an IJ’s findings must be supported by “substan-

tial evidence.” Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir. 2004). One

example of material that “does not constitute substantial evidence” is

“[m]ere uncorroborated hearsay” lacking “rational probative force.” Rich-

ardson v. Perales, 402 U.S. 389, 407 (1971).

Second, an “alien shall have a reasonable opportunity to examine the

evidence against [him]” and “to cross-examine witnesses presented by the

Government.” 8 U.S.C. §1229a(b)(4)(B). The government must “make a

reasonable effort” to produce adverse witnesses; that burden “is not

satisfied where” the government “ma[kes] no efforts at all to produce” a

witness or “effectively shifts the burden of producing its witness onto the

alien.” Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997).

2. To rebut the claims of asylum applicants, the government often

seeks the assistance of U.S. consulates abroad to investigate factual

claims. See 8 U.S.C. §1202(f); 9 FAM 40.4 N2(2). Consular reports sub-

mitted in response to such requests ordinarily must be supported by the

sworn, written statements of those who participated in the investigation. 9

FAM 40.4 N10.3. An internal directive prepared by the then-INS general

counsel, Bo Cooper, dictates that consular investigation reports also “must

3

contain” certain basic details, including: “the name and title of the

investigator”; a statement concerning “the competency of the investigator,”

including “education” and “years of experience in the field”; “the name(s)

and title(s) of the people spoken to in the course of the investigation”; “the

circumstances, content and results of each relevant conversation or

search[]”; and the “methods used to verify” information obtained in any

interviews. A6-7. “[A] short statement that an investigator has determined

an application to be fraudulent,” without more, is insufficient. A6.

International norms reflect similar standards. The UNHCR, for

example, generally condemns the use of “anonymous evidence” in asylum

proceedings and prescribes the disclosure of similar details in investiga-

tive reports. See http://tinyurl.com/Angov1 (¶¶ 32-34, 37).

3. Petitioner Nikolay Angov is a Bulgarian gypsy who claims to have

been harassed, arrested, and beaten by Bulgarian police officers because of

his ethnicity. After the beatings left him barely able to walk, Angov fled

his home, turned himself into United States border authorities, and

requested asylum. CAR71-74. He passed a credible fear interview

(CAR92), was placed into Section 240 removal proceedings (CAR65), and

was paroled into the country pending determination of his eligibility for

asylum (CAR75).

4

After Angov offered as evidence of his persecution two subpoenas

summoning him to a Bulgarian police precinct, ICE asked the State

Department to investigate Angov’s case. CAR66. A State Department

official in Washington D.C., Cynthia Bunton, responded with a three-

paragraph letter. A8-9. The letter relayed the unsworn, double-hearsay

conclusions of anonymous, foreign witnesses that: (1) Angov’s documents

were forged, (2) the police officers whom Angov identified as his tormen-

ters never worked at the police station, and (3) the address where Angov

claims to have lived did not exist.

Angov objected to the Bunton letter on both statutory and constitu-

tional grounds. See CAR312-357. He requested production of the docu-

ments obtained in the course of the investigation, the names of the wit-

nesses interviewed, the identities of the investigators, and an opportunity

to cross-examine Bunton by telephone. CAR319-321, 332-334, 456.

In response, the government submitted another letter from Bunton’s

successor, Nadia Tongour, stating that the government was “unable to

meet [Angov’s] request” because it “generally does not provide additional

information or follow-up inquiries” to “immigration judges regarding the

results of an investigation.” A10-11.

4. An immigration judge denied Angov asylum. Although the IJ

recognized that, “in the absence of [the Bunton] report, [Angov] is other-

5

wise credible” (CAR308), he concluded—based exclusively on the Bunton

letter—that “the subpoenas submitted by [Angov] are fraudulent” and that

Angov accordingly “is not credible” (CAR82-83). In rejecting Angov’s cross-

examination argument, the IJ reasoned that because it was not “the usual

practice” for the State Department to produce witnesses for cross-examina-

tion, the witness was simply “unavailable.” CAR83.

The Board of Immigration Appeals affirmed, adopting the IJ’s opin-

ion as its own. CAR2.

A divided panel of this Court denied Angov’s petition for review. The

majority “quickly dispatched” Angov’s statutory arguments, observing

simply that Angov “was allowed to examine the Bunton Letter” and that

“[t]he government here did make a reasonable effort,” as required by

Section 1229a(b)(4)(B), to make Bunton available, “but was prevented

from doing so by State’s policy of not” producing such witnesses. Slip op. 8-

9. Concerning Angov’s constitutional argument, the majority concluded

that Angov has no due process rights (slip op. 18-21) and that, even if he

did, they were not violated here (slip op. 22-29). The majority labeled

“absurd” the contrary decisions of five other courts of appeals. Slip op. 14.

Judge Thomas dissented. “[W]hether we cast the issue as one of due

process or of substantial evidence,” he explained, “the Bunton letter falls

6

far short of satisfying the standards of reliability established by our sister

circuits and the agency should not have relied upon it.” Slip op. 45.

ARGUMENT

The majority opinion is wrong in every relevant respect. Documents

like the Bunton letter do not constitute substantial evidence. The

government may not nullify a statutory cross-examination right by

adopting a blanket policy not to produce witnesses. And individuals like

Angov do have a constitutional right to test hearsay evidence like the

Bunton letter.

In reaching its contrary conclusions, the panel went out of its way to

decide a difficult question of constitutional law that—in light of the

independent statutory grounds for disposing of this appeal—it did not

need to reach. En banc review is imperative to bring this Court’s

precedents in line with every other court of appeals to consider these

questions.

I. ANGOV’S STATUTORY RIGHTS WERE VIOLATED

A. Uncorroborated double-hearsay reports like the Buntonletter are not substantial evidence

1. In “quickly dispatch[ing]” Angov’s statutory arguments (slip op. 8-

9), the majority disregarded Angov’s argument that the Bunton letter is

not sufficiently reliable to satisfy 8 U.S.C. §1252(b)(4)(B). That omission is

striking, because it is settled that “[m]ere uncorroborated hearsay” like the

7

Bunton letter very often “does not constitute substantial evidence.’”

Perales, 402 U.S. at 407.

To be sure, there is no “per se rule that holds that hearsay can never

be substantial evidence”; the question, instead, is whether the evidence

bears sufficient “indicia of reliability.” Calhoun v. Bailar, 626 F.2d 145,

149 (9th Cir. 1980). While there is “no bright line test” concerning relia-

bility, the Supreme Court has “isolate[d] a number of factors that may be

helpful” to the analysis. Id. Among theme are:

whether the hearsay declarant is an “independent” and impartial

“adjudicator” or instead a partisan “advocate or adversary”;

whether the document is based on “personal consultation and per-

sonal examination”;

whether the document reflects the result of a “typical,” “routine,” or

“standard” investigation, revealing “a patient and careful endeavor

by the state agency and the examiner to ascertain the truth”;

whether past practice demonstrates “traditional and ready accep-

tance” of such hearsay documents in administrative proceedings; and

whether the “administrative burden” of excluding hearsay and

requiring cross-examination “would be a substantial drain” on

limited resources.

Perales, 402 U.S. at 402-406. The Bunton letter falls short with respect to

each of these factors.

First, the witnesses interviewed as part of the consular investiga-

tion—foreign police officials accused of ethnic bias by Angov himself—are

8

a far cry from the impartial physicians whose statements were relied upon

in Perales. There certainly is no objective basis for believing that the

declarants whose statements are relayed in the Bunton letter are

impartial.

Second, Bunton had no personal role in the investigation.

Third, the Bunton letter assuredly is not a standard report reflecting

a careful investigation. As we have noted, State Department policy

requires that, when information is gathered “for use in petition cases and

other proceedings,” oral statements “must, whenever possible, be reduced

to writing and sworn to before a consular officer.” 9 FAM 40.4 N10.3. That

was not done here. Moreover, none of the details required by the Cooper

memo is present: There is no indication of “the name and title of the

investigator” or that person’s qualifications, the identities “of the people

spoken to in the course of the investigation,” or “the circumstances,

content and results of each relevant conversation or search[].” A6-7. Thus,

as in other cases involving similar deficient reports, “[t]he Bunton letter

does not meet even the minimum standards prescribed by DHS.” Anim v.

Mukasey, 535 F.3d 243, 258 (4th Cir. 2008).

Fourth, the other courts of appeals uniformly have rejected uncorro-

borated, anonymous, double-hearsay reports like the Bunton letter as

“glaringly deficient” (Banat v. Holder, 557 F.3d 886, 893 (8th Cir. 2009)),

9

“markedly insufficient” (Anim, 535 F.3d at 257), “insufficiently detailed”

(Lin v. Dep’t of Justice, 459 F.3d 255, 270 (2d Cir. 2006)), not meeting basic

“standards of trustworthiness” (Alexandrov v. Gonzales, 442 F.3d 395, 405

(6th Cir. 2006)), and “troubling” and “untrustworthy” (Ezeagwuna v.

Ashcroft, 325 F.3d 396, 406-408 (3d Cir. 2003)).

Finally, the administrative burden of furnishing the information

that Angov requested, and of providing an opportunity for telephonic

cross-examination, hardly would be “crippl[ing]” (slip op. 27). After all, the

government’s own procedures already direct investigators to provide the

requested information in detailed reports, supported by sworn statements.

Not only do those procedures reflect what the government itself judges to

be reasonably manageable—a judgment entitled to some deference—but

“an executive agency must be rigorously held” to its own “defined proce-

dure[s]” (Clemente v. United States, 766 F.2d 1358, 1365 n.10 (9th Cir.

1985)), especially “[w]here the rights of individuals are affected” (Morton v.

Ruiz, 415 U.S. 199, 235 (1974)). Adding a simple telephonic interview to

the kind of detailed report that the government already prescribes for

itself is not unreasonably burdensome.

The Second Circuit agrees. Using the Cooper memo “as a guide,” that

court has held that requiring the government to prepare more detailed

reports is not “unduly burdensome,” and that reports like the Bunton

10

letter are “highly unreliable and therefore insufficient to satisfy the

substantial evidence requirement.” Lin, 459 F.3d at 269-272.

2. In response to all this, the majority reasoned that government

reports like the Bunton letter are presumptively reliable because they “are

clothed with a presumption of regularity” (slip op. 26) and that, in any

event, “[r]equiring the Department of State to disclose more details will

[not] materially enhance the reliability of the resulting report” (slip op.

30). That is doubly incorrect.

The regularity doctrine is not a “rule of evidence,” but the “general

working principle” that official acts of public officers are presumed legiti-

mate, and not “negligent[]” or “improper[].” Nat’l Archives & Records

Admin. v. Favish, 541 U.S. 157, 174 (2004). The question here is not

whether Bunton “properly discharged [her] official duties.” Brown v. Plata,

131 S. Ct. 1910, 1965 (2011). It is, instead, whether the anonymous,

double-hearsay declarations contained in her letter are reliable as an

evidentiary matter. That is a different issue altogether.

And there is good reason to think that the Bunton letter is not

reliable, even aside from Perales. There is no dispute, for example, that the

anonymous investigator spoke with officials from the same police precinct

accused of persecuting Angov. It goes without saying that such officials

“‘have powerful incentives to be less than candid’” (Amin, 535 F.3d at 257

11

(quoting Lin, 459 F.3d at 269-270)), and that relying on their statements

therefore is “particularly dangerous” (Alexandrov, 442 F.3d at 405 n.7).

Without further details, the IJ could only speculate concerning the

reliability of the investigation. There was no way to know, for example,

whether the unidentified police official (“Ludmilla Bogdanovich,” in the

majority’s imagining (slip op. 30)) was newly hired and unlikely to know

former officers, had been accused of perjury, or had committed hate crimes

against Roma Bulgarians. See slip op. 32. There also was no way to know

“whether the ‘investigator’ was experienced or had any particular training

in conducting such investigations” (Banat, 557 F.3d at 893), “whether (or

how) the investigator attempted to verify [his] conclusions” (Anim, 535

F.3d at 258), and whether Bunton had any personal basis for “judg[ing]

the credibility of the investigator” (Ezeagwuna, 325 F.3d at 406). Angov’s

counsel could have investigated these matters—but only with the “jots and

tittles” (slip op. 28) that the majority puzzlingly dismissed as unhelpful.

Of course, an investigation might have revealed that the Bunton

letter is accurate and trustworthy. But either way, with no more than

anonymous double-hearsay—contained in a terse letter, prepared for

litigation, by an adverse party, in a manner inconsistent with government

policies—the reliability of the letter was a matter of pure speculation. And

“speculation can never replace substantial evidence as the basis for an

12

adverse credibility finding.” Guo, 361 F.3d at 1199. The panel decision

failed to grapple with these challenges and should be reviewed en banc.

B. Angov’s statutory cross-examination right was violated

The statutory violation here is compounded by the panel’s failure to

enforce Angov’s right under 8 U.S.C. §1229a(b)(4)(B) to cross-examine

Bunton. Again, the government has “the burden of producing its

witnesses” for cross-examination under Section 1229a(b)(4)(B), and it must

make “a good faith effort” to produce them. Saidane, 129 F.3d at 1066.

Here, however, the government made no effort at all to produce Bunton.

Instead, in response to Angov’s request, it submitted the Tongour letter

(A10-11), which declared with commendable candor that the State Depart-

ment simply does not make officers who conduct overseas investigations

(or even those who merely write up the results of such investigations)

available for cross-examination. In the majority’s view (slip op. 9), that

position is “entirely reasonable.”

In fact, that position is manifestly insupportable. The government

does not meet its obligation to make witnesses reasonably available by

adopting a blanket policy that anyone involved in a consular investigation

overseas is categorically unavailable. The statutory confrontation right

“cannot be fulfilled ... if the government’s choice whether to produce a

13

witness or to use a hearsay statement is wholly unfettered.” Baliza v. INS,

709 F.2d 1231, 1234 (9th Cir. 1983). Yet, apart from the Tongour letter,

the government has offered no explanation why Bunton could not have

answered a telephone call. Instead, the panel majority deferred to the

government’s “wholly unfettered” choice concerning whether to produce

Bunton.

The panel’s approach is particularly troublesome because Angov

requested a subpoena for document production (CAR456) and cross-exami-

nation of Bunton (CAR285-286, 483). The IJ summarily denied the sub-

poena request (CAR286) and the panel majority ignored it. That was an

independent violation of Angov’s statutory confrontation rights (see

Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010)) and supplies an

additional basis for granting relief (see Oliva-Ramos v. Attorney General,

694 F.3d 259, 273-274 (3d Cir. 2012)).

II. ANGOV’S CONSTITUTIONAL RIGHTS WERE VIOLATED

Prior to the decision in this case, it had been settled in this Circuit

that there is a “due process ‘floor’ for the treatment of aliens subject to

§ 1225(b),” like Angov, and that “§ 1225(b) is [therefore] susceptible to a

saving construction to avoid constitutional concerns.” Rodriguez v.

Robbins, 715 F.3d 1127, 1142 (9th Cir. 2013) (citing Nadarajah v.

14

Gonzales, 442 F.3d 1069 (9th Cir. 2006)). That precedent strongly suggests

that our interpretation of the two statutory provisions at issue here—an

interpretation that avoids constitutional concerns—is the better one. En

banc review is necessary not only because the panel reached a constitu-

tional question it should not have addressed, but also because it decided

that question wrongly.

A. Paroled asylum-seekers like Angov are protected by theDue Process Clause

In holding that Angov’s due process rights were not violated here,

the majority began by observing that aliens like Angov, paroled into the

United States to seek asylum, lack constitutional protection because they

are here “physically, not legally.” Slip op. 18. In the majority’s view, “the

applicable statutes and regulations” alone “define[] the process an asylum

seeker like Angov is due.” Slip op. 19, 21.

That conclusion is at odds with a recent, categorical declaration by

the en banc Court that “every individual in removal proceedings is entitled

to a full and fair hearing” guaranteed by “due process.” Oshodi v. Holder,

729 F.3d 883, 889 (9th Cir. 2013) (emphasis added). It also conflicts with

Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009), where the petitioner—a

paroled asylum-seeker like Angov—was held to enjoy, not just a statutory

right to a hearing, but a constitutional entitlement to “a full and fair

15

hearing” protected by “the Due Process Clause.” Id. at 1073-1074. The

panel’s contrary rule cannot be squared with those clear holdings.

Even if that were not so, the line the majority draws between

“physically” and “legally” present individuals is not one that makes any

difference here. Noncitizens, like Angov, who are deemed to have “a

credible fear of persecution” are guaranteed “further consideration of

[their] application[s] for asylum” by statute. 8 U.S.C. §1225(b)(1)(B)(ii).

That entitlement creates a constitutionally protected liberty interest in

two respects.

First, when Congress guarantees consideration of a claim, the Cons-

titution requires that it be fair consideration. The right conferred by

Section 1225(b)(1)(B)(ii) would be meaningless if IJs may deny relief to

paroled asylum-seekers based on whim rather than reliable evidence.

Thus, when noncitizens are “found by the governmental officials to have a

credible fear of persecution,” their “status is changed,” and they become

“entitled to due process.” Haitian Ctrs. Council v. McNary, 969 F.2d 1326,

1345 (2d Cir. 1992), vacated as moot, 509 U.S. 918 (1993).

Second, both statute and treaty forbid repatriation to a country

where a noncitizen’s life or freedom would be threatened. See 8 U.S.C.

§1231(b)(3)(A); Protocol Relating to the Status of Refugees, 19 U.S.T. 6223,

art. 33(1) (1968). Once the government initially determines that a non-

16

citizen has a credible fear of persecution, those laws confer a “protectable

interest” in not being returned arbitrarily. Yiu Sing Chun v. Sava, 708

F.2d 869, 877 (2d Cir. 1983). Thus, other “[c]ourts have recognized that

[paroled] aliens seeking asylum are entitled to some due process protec-

tion.” Marincas v. Lewis, 92 F.3d 195, 203 & n.8 (3d Cir. 1996).

B. Denying asylum based solely on unreliable evidenceviolates a noncitizen’s due process rights

Concluding that Angov is protected by the Due Process Clause

requires the Court to determine what process is due. That inquiry turns on

(1) the interests of the individual, together with “the probable value” of

“additional ... safeguards,” weighed against (2) the “administrative burden

and other societal costs” of requiring those safeguards. Mathews v.

Eldridge, 424 U.S. 319, 333-335 (1976).

But, first, a point of clarification: Through most of its analysis, the

majority focuses on the admissibility of the Bunton letter, observing the

“mere admission of evidence” generally does not “violate[] due process.”

Slip op. 15. That is a straw man. The question here is not whether the

Bunton letter is admissible; it is, instead, whether use of the letter to deny

an otherwise credible applicant relief violates due process. It does, for

many of the same reasons that reliance on the letter violates the

substantial-evidence requirement.

17

1. On one side of the scale, individuals’ interests in fair asylum

proceedings are profound. For someone like Angov, who first arrived here

in 2002, removal is “a drastic measure” that “visits a great hardship,”

depriving him “of the right to stay and live and work” in the country that

has been his home for more than a decade. Lanza v. Ashcroft, 389 F.3d

917, 927 (9th Cir. 2004). That hardship is heightened in cases like this

one, where an individual’s “interest in avoiding torture or mistreatment by

a foreign nation is [a] ‘matter of serious concern.’” Kiyemba v. Obama, 561

F.3d 509, 518 (D.C. Cir. 2009) (Kavanaugh, J., concurring). In short, “[t]he

liberty interests involved in removal proceedings” against paroled asylum-

seekers “are of the highest order” (Lanza, 389 F.3d at 927) and “weigh

heavily” in Angov’s “favor” (Oshodi, 729 F.3d at 894).

And the value of the commonsense safeguards we advocate—prohi-

biting denials of relief based exclusively on anonymous hearsay evidence

and guaranteeing a meaningful opportunity for cross-examination—is

obvious. As we already have shown, with nothing to go on but anonymous

compound hearsay, it was “impossible for the immigration court to assess

the report’s probative value.” Id. at 891. Use of the Bunton letter alone,

without offering Angov a meaningful “opportunity to show that [its

conclusions were] untrue,” was especially problematic because, as is often

the case, “the evidence consist[ed] of the testimony” of witnesses who

18

themselves may have been “motivated by ... intolerance [and] prejudice.”

Greene v. McElroy, 360 U.S. 474, 496 (1959). Nonetheless, the Bunton

letter was the sole basis for dashing Angov’s hope of asylum in this

country.

Ensuring that there are basic “[procedural] checks on arbitrary

government action” (Lanza, 389 F.3d at 928) is critical in the context of

asylum proceedings, not only because the stakes are so high for those

fleeing persecution, but because the immigration adjudication system is so

flawed. The BIA is reversed in this Court in 17.5% of the cases in which its

determinations are appealed (http://perma.cc/8AGP-E5JB (page 5)), nearly

five times the 3.6% aggregate reversal rate in all other civil appeals

(http://perma.cc/Y3MC-YZH9 (page 3)). Asylum-seekers thus have a

weighty interest in faithful adherence to basic evidentiary rules that

reduce the risk of error and protect against arbitrary denials of relief.

2. On the other side of the scale, the administrative burden of the

rule adopted by five other circuits is slight. That rule simply requires that

consular reports furnish basic details that allow asylum-seekers a reason-

able opportunity to investigate and rebut a report’s conclusions. Again,

that is what the government’s own policies already require.

The panel nevertheless worried that precluding IJs from relying

exclusively on uncorroborated, anonymous, double-hearsay evidence to

19

deny asylum to otherwise deserving individuals would “hobble[] the

government’s ability to detect and combat fraud.” Slip op. 35. That is

demonstrably wrong: In the years over which five other circuits have

adopted the rule we advocate, the number of individuals receiving asylum

has fallen by over 13%. See http://perma.cc/ZLW3-KEKH (table 16).

Although that is a national figure, those circuits handle about one third of

the Nation’s asylum cases. See http://perma.cc/9USJ-MFT9 (table 2).

And there is no reason to think that our rule will render asylum

proceedings “ponderous, time-consuming and expensive” (slip op. 28),

either. Similar data show that IJs—including those in the Second, Third,

Fourth, Sixth, and Eighth Circuits—have been processing asylum applica-

tions at a speedy clip, disposing of more applications in 2012 than were

filed that year. See http://perma.cc/5XBJ-EU9B (table 7).

Nor is there any indication that, if forced to conform consular reports

with basic standards of reliability, “the State Department may stop

writing them.” Slip op. 29. On the contrary, the government is having little

trouble in other circuits providing “[t]he level of detail” necessary to “lay[]

a proper foundation for [the] conclusion[s]” it reports in consular letters,

allowing IJs to determine whether the underlying investigations were

“conducted in a reliable manner.” Shah v. BIA, 314 F. App’x 326, 327 (2d

Cir. 2008). See also, e.g., Huang v. Holder, 493 F. App’x 220, 222 (2d Cir.

20

2012) (report included “the identity and qualifications of the investigator”

and “the methods the investigator used”); Huang v. Attorney General, 376

F. App’x 253, 256 (3d Cir. 2010) (non-hearsay report); Karim v. Holder,

596 F.3d 893, 897-898 (8th Cir. 2010) (corroborating evidence).

In sum, an asylum-seeker’s interest in fair decision-making based on

reliable evidence far outstrips its modest and reasonable costs.

CONCLUSION

The Court should rehear the case en banc and grant Angov’s petition

for review.

March 31, 2014 Respectfully submitted,

/s/ Michael B. Kimberly

Charles A. RothfeldMichael B. KimberlyPaul W. Hughes

Mayer Brown LLP1999 K Street NWWashington, DC 20006(202) 263-3127

Eugene R. FidellYale Law SchoolSupreme Court Clinic127 Wall StreetNew Haven, CT 06511(203) 432-4992

Counsel for amici curiæ

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 29(c)(7), the under-

signed counsel for amici certifies that this brief:

(i) complies with the type-volume limitation of Circuit Rule 29-

2(c)(2) because it contains 4,174 words, including footnotes and excluding

the parts of the brief exempted by Appellate Rule 32(a)(7)(B)(iii); and

(ii) complies with the typeface requirements of Appellate Rule 32-

(a)(5) and the type style requirements of Rule 32(a)(6) because it has been

prepared using Microsoft Office Word and is set in Century Schoolbook

font in a size equivalent to 14 points or larger.

March 31, 2014 /s/ Michael B. Kimberly

CERTIFICATE OF SERVICE

I certify that all participants in the case are registered CM/ECF

users and that, on March 31, 2014, this motion and brief were served

electronically via the Court’s CM/ECF system upon all counsel of record.

March 31, 2014 /s/ Michael B. Kimberly

APPENDIX

;

• US. l_Ip_un_t of Jur_e

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MRMOR.ANDLrM FOR _:'ggEY WEISS

FROM: .

SUB_CT:

, .plgF.CTC_ 0FFIC_ OF II_,RNATIONAL ,k_AIgS,

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This mcnzorarglum di_ussc_, the cm_atiality reqgircm .cn_ that apply _ informationcontaincd In or l:cr_iaiaZ to ss_'lum applica_/oa.z zad Siv_ _aldsacc to/mmi_raziaa _dNazuniizazio_ Servicc (I1¢S] ovm'scas ixa_aucl cos_ucti_ vaifica_ons of _ _d factscontained iu o_hca application. O,,crseaa verification of documents or facts submitted ins_grportof asylum applications iS essential to comba_ f_ud in the asylum procczs sad insure theimegriry Of the e_ltl/n pru_am..IN_ a_ya arc _ralcfu] for t.h¢ invaluable ag_i_iar, e-_ thatyour o flicks have providd and continue to pru,d_ in fimbea'_ce ofthe,e goals. The follcnsdnglrui.danccis intcadcd m assis_ in th* accompli_,braent of these goals while min.imizing the risk ofcma.Cidcafiality hrcaches. Th_c rnm_o cup¢_c_ all prior g_dance l_rovlcled by this of'fi,_: onthis _pic.. I

LF__L FRAMEWORK

TI_ r%n,_on g_vca'ning lhc co,u.fidcatizUtyof_yk_n at_licarion_ is fo_,d at g C,F.R.§ 208.6 (2000).as_.cndcd z_65 F_cnI R_t_" 7_121, "]6133(D_:.6,2000).Th_ regulationcontaint mmdt_or7 lsm_aSe _d i, binding on all INS pm'sonncl. Thc regulation/movides:

(a) intoanafi_ can_n_ in or pmalnlng w any _ylum _plicatlon, r_co_'ds pe_lainingto a_y cr_iblc gvar detm'minalion ¢0ra_cted pu_tl_n_ to § g08.30, and _ecords pertainingto _ny rea_nablo f_r _iet_rralalRl¢l_ a_cted pm'_.nt to _ 20L31. ,r.h_[ t.o_becli_closed wit_o_l _ w'fitum consent of the app!icanL cc_cq:_l as permitted by _is sectionor at the disca_on of the Ae,omcy General.

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(b) Tl_ ¢on_d_dal_of mi'_:m:o_ _ bY the Se_,vio_and the ExeozTiv¢ Offiac for_mrai_'adon Rcvtaw tha¢ !ndic_. tb_..a s_c _ has applied for asyla_, rcc_w.d acrediblefear or x_sombl¢ .fearmte_¢_, _r xccc_v_ n orphic _ Or_:_abl¢ f_ar_vi_ _ al_ bcFomar._ifrom _. The$¢.-vicewi,lZcoordia_ wir.btheDepartment of Sta_ to _ ._ d_ coafu_tialRy ¢ff thosc s¢co_!.$ b mah_ if

(c)This Scction ;hall ao_ apply_ my d/sclosu_c to:

(1), AnyUnitedSta_ Govcngnca_ol_-ial_ court.or havi_'a nccd to¢_u_iae_oa in comu:ctic_with:

(i) The alj_icuioaofasy;um applictdom;(ii)T]_ _io_ ofa rcquczzrat a credible fear or reasonable fearime.rvi_, or z _.d_l_ fr._z or n-.asea_lefcsr rcvlew:

of. or f-ailum to adjud/Cs_ the aaylam appl_atloa, c_ from e_crcdlbl¢ fear.d_-_miamion or rcasonsblc fear dmm_on under § 208.30 or

(iv) Th_ _ of nay legal acdoa o'f which the ¢syR_"n.app]_callo_,¢rcdibl_ fear _tarmi .uation, m re_onablc fear _terminationls a pe_; or(iv) Aay..Uai_ Stax_ Govemm_ iuvesdgaxlon concerning any criminalm civil mm_. or

(2) Az_y Federal, sm_, 9r local court in the Umted Stales c.o_ide..fiag any legalaction:

-Ci)Arising,f_m _ adjudicafionof,.or _m'luxc to aCjudic.atc, th_ asylum.... _pplication, .or from a.cr¢_i_ fea_ Orraa_anabXe_ de;ca'ufioadon under

§ ._8._o:_ § 20_.31;c_.. • " " " • •(ii) Arising from d_c p/oce._ags, of w.l_b d_¢ asylum application,

• cxcdlbh'fcar det_mdnafion, or rcasouabk; fc_r de.,tcsminatioa is a pa._. • •8 C.F.R, § 208,6.

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As a gcncr_ rnatr,'r, the rogul_ian Brohihils_TS pm3ormcl from commenting to azty thirdparty on the _c Or eve._ r_heegitxe.nce ofingividual zpplicaLion$ [or ll_|Ulx'h ariatcqukcs _atthe INS refit,rain the confidear.iality of any I_iS _._r_ that indicate tl',_ s_ alien has applied forasylum o_ withholding of rcmovs/. Scc $ C,F,R- § 20E.6('o). The regulations, however,cnumc_atc several cxoeption$ to _¢ _nend tale. First, t_e rccot_ may be disclosed at thedi_rczion a_ the Attorney General. _ 8 C.F.R. | 20g.6(a). 'The INS has inzerp_ezed the

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cou_m_i_ ofA_mm Appl_om md ""Ovm-.e_V_flr._u_Dommmns ._ Appl_.""cslufonamion • • "

AU_n_ Gem_', disu_uMur ddspm_ioa u no_ezcuc_ m INSmmunAl. Pur_u,_to_ _ bo.cv=, dz Amx_ _ml !_ m_upspmi_c g_ fc,r _ nelaa_ of_sylum_ m th_Ft_kralBumm of_w_dgzt_ m_lI_uuly bsue _ It_eli_f_ d¢ sv.lc.uscof sxch lnfotmaxion m speci_ ramies _ u th_ Dqmmmu_ af }[ea_ _lHumanSezvices. Seczm¢ then¢o_ my 1_dlsclo_ m m.vUnitedSines GOvmm_toff'_e/_ _=-aclc¢ havi_ a uc_l to _ infom_ou In _.with _ adJudir_oaof the xl_ltcuioa, i_ ¢dm_. ofaayI,Q__ m__iucfrom_ aetli_iun, mraay u_States Govemmen_ iuve4_ _ou_cui_ m_ _fimmal_ civil mauu: _ 8 C,I_.K. §208.6(c_(1Xi).(iv), TIlL,d, _ mcb_ my b¢ dim!.mt.dto any F_xs_ ,t_:, or 1o_ _ in t_URiee.dSmZe__g _uy l_d mxkm _C _ the adjudl_iam or fa_uz¢ to _ljuzlics__t¢ a_ylum applicafim_ arisingfrom.thepmcscdiu_s ofwhichth__ylum _)lie.azian i_ z paySee 8 C.F.R_ | 208,6(cX2Xi),(ii,}. _ wld]e tlseAttmuc_ _ has RrnRlcas ¢Lmmt_ontodiscloseinfom_on inu,/lam_lesto}l_ paz_. I_S m_Nolmes,ssu_zlla_xnyso_,_f_:ixl,.a,-= lim_cdr,odb=lmingtnformadou_ asylum_l_sm b'_tnd S_uusgo_t oEu:i_luorcou_z'._t_,,c__ b • limitednumbaoFmxcxtmsta_ _ ate_pecICu:_l__ byxb__gu_. Disclm_ ispx_bi_ to_I _ _e_o_.

_.vuti_ oft clxim. Tbe'pm_c_ _n iw, ust_lpz;W. Foe=alum will vary _ n'J_y ",X_L_mces.f_ompo_ topost,andu_n/cameo_.mmplbm_wi_ a_ mSu]sa_ win prtm.u'izyd_M _m_,.,,,+.t,tmInv_sa.x_ i.spm'_m"m_.TUe_.uo,mng.mdomme,_eoi+ereAto _Ip ium.,'1_tlmercquireJnc_csmd KtxidcINS _ pm'sc_ct us d_ unclcm_ ver;.fmdons of evldeucesub_u=l in sul_x_ of sylum _.adom.

P.mm_ugl.be.. co_P._¢idit'y of ul4um xl_plica£iom mt_ _w_Lvs bca px'i_c_nsi_raS_ in pmcer_ rcque_ for invo_tig<iou_. Th_ tollowing guide.li_s will assist in

i_r_on of SC.F_Z.f _0_.6andhe_ _S ovasms_el inweavetl__onnd_nti_ty.of appU_.ions. In tm_r m ,_sure coherency in cvide_ISry suhrnipions toimmi_r_rlo_ co_,tr'._,th_l _ddeUnes e_eLnUmd_ w b_ similar _ud, in some cases, idemb;al mchose is_uM, afmr r.,_tult_tioowith t_i$ of 5c¢. by the ]_lJ_ut of State's Office of AsylumAKin m _ cOns_laz otf_.ms l_rrorminS invcstiCazlan_ ofasyluma_l_c_ions,A r,_yofthecableis.attmchcd.

(I) It"an itxves_izmi_n cacmo_be accomt_li_l_ wi_0ut comFomLdng the ¢on_lcuSzlt_yof the Wplic,azian,the invetdgmiou shmdd be abando_d.and tt_ iuvm_igamrshouldinform _c mqtmstor of de. lnv_stig_ of m_ fa_,

(2) C_ne._ly, _ufidendxlity oran _sylum application is bre_iwd wh_x _forms_io.coutdm, cl _ or lxn_Jning theretois disclosed m a [hkd _u'W, and th_ disclosure isofa nansrc _U allows the third pe._ tdliuk tbc identity of tire applicant to: {l) _h¢facethat _¢ al_ticm_t has applied for asylum; (2) specific f_ts or a.Uc_tio_s p0rtsinl.ng to tho

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1 f-A3

Mcmor_duta for Jeffrey Weiss " • . " "coraa zlityotAs,A aVp.z!cations'ana " -. -O.vor;e_ VcdfiCatl_ of .DoCu._.aeJ..U ..and..AppliCation'lllfo_aation .-"Page'4 "

indivichJ_ _y..13_ chtim oonttiucd in an asylum al_llcadan; or (3)facts or allegations 'that are suffici_t to give _ to z rear.noble Jnfetmace that the _[allcanl has aR_lied forasylum. If one o_ the othcrpa_ ofzhislinkis misstng, then no bre_ch has occuned.

'rh¢ pmpr_ty of *_ iz_rve¢tJ_ativeprooed.ttr_will vazy in u'zany inatazzcos fzom post to post,and Successftllcompliance with rig regulatiouwillprimarilydepend upon t/_ typeofinformationt9 be v_flP,,dand upon flowtheinvestig_onisporfonncd.An INSinver,,iga/o,r may rcqUcst informatio_ frnm the host goven'tmcnt or third pardesconce-ming an applicant for asylum ot application _on_afion, so 1Qng as the investl_t:ordoes not disclose izformad'on that would allow a third p_'_y _ link r,_ idcnttt'y or theapplicant to either t_ fact that the'al_llcant has appli_ _r a_ylum, to spirit facts oratleg_oas con!niucd in dze asylum applicationorto oralle ,,,uiom sufficient

to give rise to a reason_le Inference thai tile atRalJc_t ltas applied for asyhxm_

Disclosure of tim appl;cant's kl_tity aright be psmaissiblz if the request for in/'ormationis made where simil!f t_itmsa foriuformation a,re roudrtely made by the U_ted Satesg=vermn.n_ for ot_r pu_oses - ¢.t;-, fos-',,is:, applic_ts, pm:;Fective employees, e¢. -and t/ae_ is no menti_ of asylum. Many aspects ofml asylum claim - including theo,.--'curtenceof evonz.,_ceni'r41to_hc claim, the adok"csse.sznd locations of stw..hsvent_ etc.- cottld be verified ar disprov_ _itlmut disclosing thei&ndty of the R_pli_t or anyd_tailS of his or her claim to anyone, lfp0_ible, such an approach is p_f_'abl¢. Inparticularly sensitive cases, or wl_e similar requests for inform_on are not routinelymade, it may not be prt_nt _ approach the hast government or third pa.,dr.s at all.

Overseas verification of docurnen_ P_escnmd io soppor_of a_ylur_ applicsdon_ mayprcscnt uniqu_ difficulties.. For _ample, if _ Assistallt Dbt_ic_ Counsel _nds a bL_ce.fdficamincludedby an #,sylumapplicantirthit_ her asylum applic_on totheoverseas OIE for-verification oldie eth._ status list_I thea'eon, the blab ezC,.iflcat¢ couldbc verified in a number of way_:.._crme of which would breach the confidenziMity of theapplication, while othcr_ would nol, If tlae OIC provid_ _e'birth cetliflcam dinctly toforeign government offidtds for verificad0n of ir_ con_ents, this would be a breachbecause tie birth ce_fu;alle discloscsboth the apl_licant'_ identity ,,rid info_mafiou -indeed, an t¢'lua ! document - contaLm_din the asylum application. In zddltion, thepossession and mve:¢ti_atlon of certain pez_cm_ clocume_¢s b 7 the "US _vernrncnt n'dglat

be _,fficicnt to give rise toa reasonable infeicncc that the applicant sabmitzcd thedocumen¢._o the US goveramcm, to buttress a0..asylum claim. This would I_ estx:ciallytruc if a document submitted directly, to a for¢!gn goycrm'n=n_ were the type of document-sUch asa PRC hospitd'reeord pe_.alningtocoercive.familYplanningtoe,sores- thatcvidt.naccseventsco_rtrnonlyknown toform thebasisOf asylum clalrn_in tileUnitedStatP._.

On the ot_r b_nd, If the OlC only.scat the nartm of the *,pplic_t _ the foreigngovernment authorities witha request tha_ they inspect their bxrth records for'information

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PASE.OSA4

Meme_m_dumfar1_/_y W_sCom'ic_ry of,,_yhm __. m_d

or Ap iauiouInfcr. Page $ .. -

rouanray¢mxl_ xo_emum_ _ to_m ul4um q_plkm_on,suchu for an

_t'_ Idsm_y, _ n_ _ _pcci_ facts vr ILl_gado_s conmin_ in d_ uylumapplicaxim_, no_ doe_ it dlsc.Jose facts _ut_:ieat tOiliv* ri_, to a rcemonablc la/cmace thatd_capplicanthas qpUcd for asyZum,Themdyfa_ dlvzlgcd is that d_ ffni_cdSmxca8o_t is immn:t_ed ia _he bizt_ rcr.,x_ ofd_ alien. In a similar vein, fir, he OICpersonally iuspc_ d_ Io_ in Wbi_ bL,lh _ WOuld t_ couudned, theconfideadalivj of me_ytum apldicaZi_ wouldn;main;,,tact. Thi_1_ al_roa_

• rcr,ourccs Ix,_xaiui_,is t_ _ appma_ fromthe su_h_,,_ or__;confidentiality.

_yuau mayamy_ muumim_ito INs pore in othercounxxicsot bctWcen_r_'_ i_stsbyoffu:ial_ mtiM_lemeanS,.This incbxdcs.unclmi4_! goveanmcat_, officialfax muiqq_mvedDOlI INS _ mail. Witb_intheUnimdSuu_.s,_ maybe_mlladlzed by rmdL mit_ar far.. of t_ zpproved DO/I D_T_elc_muic mail. Sp_:lflc

asylum cases shoed _ be d/ncuss_., ov._ pro'sold e.leccrmdc n_l accounts.

(4);:o i s, iCZ ic, em,plo INs ms .be m• informa_u_ conminr, d _ _.pextai.._..zo _qflum Wplicaxiuas.at the di_'redon oftbcD_ct _.havingjuti. _cdmovez theINS over,eu Di_tx_:xo_:_. 0:_gub.Officc

• ia'which they axe e.mployczL. In Cx_.is_J thi_.d,iscxedo_, thc Di_tr_t Dh'eclor shouldcoasidct any facr_" which may _ t_-_ ma_ a_ylun_ infoxmaz_, may beimproperly discloscd _ a $ivea INS ovcracas post or by a given FSN' c_ployee

-inc.lu_ng, bUtpot limJted m: (1) thc ln_g_' and compctcuc_ of a given FSN emp]oye_;(2) wt,_r dv.rc is s hlsCory or pracd_ of cormpckm, impropriety or un_a_ho_ldi_losureof _ information at a giv_ p_r.; and O) _: ti_ between FSNemployees at a given po_t and thc hM goveeml_t.

(_) INS ov©r_cas pctsonncl may aiscJose Inform_ioa con_edn_l in or .p_. e_ning masylum applic_lon; to en_ployccs of the Dep_t of S_e (DOS) w_th the need toknow. The rcgu_ons spccificaUy contemphue such a disclmm'e fo_- the purpose orconducd, ng an crvce_zs inv_d,g_o_. See S C.F.R. § 2Og._(b). _ noted sbo_c, _c DOShas issued, a c_le to i_s ovcr_c,_ posts _vemlng d_ _nlia]iO of a_yl_mappli_dons. If an INS offlc_r u'an_nils such information to a DOS employee with aneed to know, the INS olTw_ rnmt inform the DOS employc*c oftl_ requimmcnu of 8C.F.IC _ 208.d. Over.as _S pcrsom'_l may also discio_ an asylum application to anyUaiw.d 5tar_ govcrnmcnt ot'fictal m' contractor haviag need coc.xamiuc the i.u.fo_nmatianin com_cctlonv,ith m_yofthc simmons'dcscribca in 8 C.ff,R. § 20$.O(¢)(l)0)-0v). Any •Such government official or cm_ractor should be _pp.dued of xhc coafidcnti;dly:equitT4ncnts of § 208.5.

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MemorandumIo: Jef_y WeissConfick_n_ty of Asylum AppUcuionsand. . ,Ove_e_ Vr.rifm,tiott of Do_..ur_nu._d AppUe,_mt I_forma_on.

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Page6 • • , ..

•. (6) "'A.ILINS o v_5_ pelsouneJ wl_. handle infom_tiorLcom_ned in or pe_i-ing to_ylumapp!i_d_s must be in.t_.._.on _e confidenti_iw requi_.men_ tb_d in 8C.I:.R._ 208.6. - .... .... *

. -o, .., . • .

i7) In c_ even! of., gun.eral disclosure of the asylum application - for example, if theappU_at holds-_ prr,ssca._'m_._c mdiscuss.his claim- an ;_ rr_p,:,_mm,., _ss_ ..the claimmay be appropriatein sn..q_;ci_umgan_. 13¢fon:preptringany such:esponse, however, INS =nploy_ nmu re_r.lwapprovalfrom th__S Office ofIvt_m_pnal Affsks. which will consult whh the Office of _; GeneralCoun,_el.

(8) In tv,sponding to reque.sts for ir_form_on or for verificafiou of documon_ o_ factualkdormt_ion, ove_.._ officers should ioclude, at s miuimu_

(i) th=appl_:ant'sname;(ii) _ epl_c.ant's A-n_ber;(iii) . _ anduldress of therequiting officer (eitherINS or Enid);(iv) _mne of respondingofl-_.-ersod zide: and(v). eat invcstiga_vc report _ outlim_:_ir. number (9) below.

. , . . .

(9) The extent of the inve_._dgativ¢ rcpO_ is _ic, a._If it is to ¢ffec,tivr,iy _nvcyi_formation to t_ Mj_l_g official,be it an _ylum O_ce_ or an immigration j_lg_.

_:oosedmgs before m imm_gratiou judge, for example, _ quality of th_ Investigativerepartcan determineth=relsoWsm:l_bility atevidenceand,Lfadmitted.Ow.we48h__he immi_'adonjudge will _c_ to it. A .re, ore tl_ is.simp_y.a shor_ smr.eme_c ¢b.ataniuv._dga_r h_; de_rrmned _n app_ tO be gmuduleT_t.is of little l>el_efiL I/lS_azl,

'reports should lay a p_pcr fou_adon for ks conclusion by n_fi_ those f_al ¢tepsttkcn by z_ investigator d_¢aused _ investigator to reach his or h¢_ conclusion. Inad_tion,the_nclusion oftheinvestigate" shouldbe s_ed h_neutraland unbia,_ed

language- In [he case of a fraudulca_ do,'ument, z comprehensive _d, then,.fote,effr._iv_ _tpOH will ]t,_d the _judica1_ down the path taken by the investigator, andhopcf_flly help [he adjudicator n:a_h _he .came con_[ugion. S_¢h _ :_or_ must contain, az

• a mi_mum:

(i). _e ntn_ and tide of theinv_dgatur;(ii) a sta_'_ent _at the investigator is fluent in the relevant langusge(s) or thet •

hc or s_ used a u"msl_o_ who is fluent in the _lcvmt lau_agcs(s);Off) any othersm_'_mts of the competcn_ of the ir_vr.stigrmr and the _r_'_sl_of

d_med appropriate undo" the circumstat_:es (tttc.h ag educe_ion, years at"eapzdenca: in t_, flcl_, fal_llarity wlm the B_ogrtphic tcrr_r_ 6c=.);

(Iv) the specific'objective of _he inve_igatlnn:(v) me location(s) of anyconwrsgiomer ochersearchesconducted:• • . . •

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Lnited States Department of State

lYashiryton, D.C. 20520

Bureau of Democracv,Human Rights and t abor

April 21. 2OO4

Megan Schirn, ACCoffice of Chief Counsel, U.S. DHS60G South Olive St.reet, 8.h FloorLos Angel.es, CA 90 014

RE: Request for Verification of Documents and. AddresseesNA-I4E: Nikolay fvanov AnqovA# : 96-227 3SsCOUNTRy: Bulgaria

Dear Ms. Schirn,

we are wrlcing in response Lo your reguest for comment.s reo:r.rih^the above applicant. These coirments are rntend.ed for use i;t"."nconjunction with the Deparcment of Stare,s Country Reports onHuman Rights practices, which are avai]abLe "b ,.;.;;;;;.;"l',.

?,.. iThe u s: Efnbassy-of f i-cial ,."p"""iUi" to, tf.,"-i,.r.,r.;;i;;;i:; ,",\]/ i iyir. of rhe confidenrialiry provisions of U-S. asylum law and",.'/ I did nor reveal or irnply the eiistence ot an .=yf ,_r., _ppf il.aro. o'i the parE of Ehe applicintOn March g, 2003, you requested. auLhentlcat.icn of the documentsl:*]:9 'subpoena rq_Caeg 2}o3o / zao2, and .subpoena re . caae1645r/2aa|'. lrfre rqlbassi' contacted an official in the Archr.veDepartmenr ut !I. TrETi.;;l ";;l:.-'aui he q u i s a c i on ; !,

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rre - r wo

-ffi ;";; . i""t Tir', _P_ ; "o.ffi , .,stated that the s.n polic-iois-tiicf iewer i"ssued the documentsand thar =n" o.r]:::l rhey were. forgeo. she sraLed rhat officersCaptain Donkov, Lieutenanl Slavkov, -rr.a fr.vesCigator Vutov havenever worked for the 5rb police Dist.rict. She also told t.heEmbassy that the case numbers on the subpoenas were not corrc.J.there lras no room 4 on the second floor and no room u o., arrfa"a,firsr floor, and-rhat the- telephon"-rrr.l*1u.,

"" lfr" ""li""iu" "uraincorrect. The Embassy also "Lfii""J-u" j_mprinr of the 5rhpolj.ce Djst.rict's official =."f, *f,i"f, 1s much larger lhan theone on these two subpoenas.

A8

You additionally requested address werrficacron. The Em]cassylocated 3oo5 streeE sofia, Burgaria bur was unabr e -t:i;###-"

nurnber 9. The Embassy sEated that 3OO5 Street is very shorE withboth old houses and a- few newLy built blocks of flats. o"l; ;;"house had a number (#1) on its-wall (see AttachmenE A) TheEmbassy was noE able to locate 175 Evropa Boulevard. Sofia; -Bulgaria. The Embassy stated t.ha: Ewroia Bou-Ieward is the mainthoroughfare Lo Serbia_and that #1?5 appears Eo be a h"g;

";;;;space (See Attachment B) . Bot.h neighb-ihooo= are Located in theLjulin discrict which is one of the Largest and poorestresidential- dj-stricL-c in Sofj-a. The Emiassy estlmated thaLapproximaEely twenry Lo Lhlrty percenE of lJurin'" ,""iJu.is .."Roma .

I hope thaE this information will be useful to you.

hia BuntonDr-rector, Of f iceCountry ReportsAffairs

ofand Asylum

A9

CRA 182 zil a$? P.Az

United States Department of State

lfashingtn. D.e. 20520rtyrs-statc.tov

June 6,2005Attorney Megan SchirnAssi staot Chief CounselDepartmenr of Homeland Sccurity26 Federal Plaa Room Il30New York I.IY 10278

NAME: tlikolay lvanov AngovCOIJ|,[FRY: BulgariaANI.JMBEK A96-227-355

Dear Ms. Schirn;

Thc Departrncart of state's Bureau.of Demoqacy, Human Rights and Labor,Office of Counry Re,ports and Asylum Affairs (DRIJCRAI i,i consiaered rheRespondent counsel's re_qu_e9t 43La Departmeni of state employee testifu about thepreparation of th"@ dared 5/5/05, trf"rong Respondent,sdocumenrs. while *e arJGbiE-lo mr* titi, r"quort, *r".*]ro*de you with thefo I I o wi n g i n formati on re garding o Uf 35llrisgy-plgg ct1 =:

unda fedaal regulations g cFR 2og.l I and g cFR l20g.l l, the Department ofState is to receiv€ copies of all applications for asylum and may, at its d^iscrsrion,comment on appiications to Dcparhent of Homeland security,-cltizenstrip ana-Immigration Services (CIS) asylrrm officers or immigrationludges wbo are deciding thecases. Additionally, asylum officers and immigrarioiluoges rnay request specificcomments from the Department of State regard,ing inOivtdua ca6es or rypes of claimsundcr considcration, or such other information as-they deem appropriate. a1ruruiuqrurt,for information are designed to assist CIS asylrln ofdcers, Igi q.,,l attorneys, a'J--immigration judges who wish to ask embassies .na ronriates rv,thout . Cl"s LrJinofficcr preseil to investigate the validity of docum.ntr

",iJ ir"tual statements made insupport of applicarions for asylum.

DRUCRA is rcsponsibre for reviewing these applications and, provid.ing theDepartmeff's comrltertts- DRUCRA receiveian application or request for infonnadon,contacts the rel evant p o st' and' _Bs

edguhgig-sr${ o 13q _llvesti gati o:q c o mp o s es t hecommeDt or response ro the DHs officer or immigratigl:"as". Er."*e "fthri;;;volume of requcsts for informarion, thc.D+a.rrrg;1r_sf SLf_eimpfoys foreign service

ffi {p^QNs"}ateoe-eosrs-ro-otuctfo.a3;;aifi;;;l.FsNinvestigators'''aybe used to inquire about documrntt subrooned or clarms ri.a. i" rup"i#;=#ri;application, provided they are noleiven inforrnation ',,hieh urnrrr,r r--r rL^- .- L -r j - ._r:r'*-* 'll:.ts:-j4v!5rr/qr rnlatrtauon Wbrcrh woud lead tLela !.O beliiYeryt$I111ti@-p+ae! col,!_g-!qqfyr! ;"

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confidentiality of asylum applications is always a considerafion in processing rque$s forinvestigations.

Prusuant to Departnreat of State policy, DRUCRA generally does not provideadditional information_or follow-up inquirics to DHS officers or irnrnigrationluagesrcgarding the rcsults of an investigation Such additional demands are-f'rtherb,ulens onConsular officers in the performanco of theirrcgular responsibilities and are particuJarlyonerous for FSNs who may be subject to local teprisal. .4s notcd above, tbeseinvestigations arc conducted for thc beuefit of DHS offcers and immigation judges toaid them in tbe adjudication process.

- Wc hope this information is of use to yolr. Please review the 2004 CognbryReports on Human Rights practices for Bulgaria for additional information.

Sincerely,

7+.:L._.-.-Nadia Tongour dDirec'tiorU Counbry Reportsand Asylum Afhirs

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