Ezeagwuna v. Atty Gen USA

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

4-14-2003

Ezeagwuna v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket 01-3294

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PRECEDENTIAL

Filed April 14, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3294

GLORY OBIANUJU EZEAGWUNA,

Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES,

Respondent

On Petition for Review from an Order of the

Board of Immigration Appeals

(INS No. 0090-1:A76 142 746)

Argued April 25, 2002

Panel Rehearing Granted on April 14, 2003

Submitted After Grant of Panel Rehearing on

April 14, 2003

Before: BECKER, Chief Judge, SCIRICA, and

RENDELL, Circuit Judges.

(Filed: April 14, 2003)

Sidney S. Rosdeitcher, Esq.

Paul, Weiss, Rifkind, Wharton

& Garrison

1285 Avenue of the Americas

New York, NY 10019-6084

Counsel for Petitioner

Glory Obianuju Ezeagwuna

2

Michael T. Dougherty, Esq.

United States Department of Justice

Office of Immigration Litigation

1331 Pennsylvania Avenue, N.W.

Washington, DC 20530

Richard M. Evans, Esq.

Terri J. Scadron, Esq.

John M. McAdams, Jr., Esq.

Donald E. Keener, Esq.

Francis W. Fraser, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Brian G. Slocum, Esq.

United States Department of Justice

1331 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Respondent

John Ashcroft, Attorney General

of the United States

James C. La Forge, Esq.

Chadbourne & Parke

539 Valley Road

Upper Montclair, NJ 07043

Counsel for Amicus-Appellant

Lawyers Committee for Human

Rights

OPINION OF THE COURT

RENDELL, Circuit Judge:

Glory Obianuju Ezeagwuna (“Ms. Obianuju”), a citizen of

Cameroon, seeks political asylum and withholding of

deportation. She claims to have been persecuted because of

her membership in two political organizations in Cameroon

that represent the interests of the English-speaking

minority population. The Immigration Judge (“IJ”) denied

3

her application, and the Board of Immigration Appeals

(“BIA” or “Board”) dismissed her appeal. The BIA also

denied Ms. Obianuju’s motion to supplement the record

with four additional pieces of evidence.

The BIA’s dismissal was based on a finding that Ms.

Obianuju had submitted fraudulent documents and

therefore was not credible. The BIA relied almost entirely on

a letter from the Department of State that contained the

conclusions of an investigation in Cameroon. In an original

opinion on appeal, we concluded that reliance on this letter

denied Ms. Obianuju her due process rights and

undermined the fundamental fairness of the administrative

process. See Ezeagwuna v. Ashcroft, 301 F.3d 116 (3d Cir.

2002). We also concluded that a reasonable factfinder

would be compelled to conclude that Ms. Obianuju was

persecuted because of her political opinions and faces a

clear probability of persecution if returned to Cameroon. We

then found Ms. Obianuju eligible for asylum and ordered

withholding of deportation, subject to the Attorney

General’s discretion. Because we viewed the record as

sufficient, we declined to consider whether the BIA abused

its discretion in refusing to reopen the record and remand

to the IJ for it to consider additional evidence proffered by

Ms. Obianuju.

The Attorney General sought panel rehearing in light of

the Supreme Court’s opinion in INS v. Ventura, 123 S. Ct.

353 (2002), urging that the BIA, and not this Court, should

make the determination as to whether, based on the record

absent the documents we found unreliable, asylum and

withholding of deportation should be granted. We agreed

with this view and vacated our prior opinion and judgment.

In so doing, while the analysis in our amended opinion

remains unchanged regarding the documents that we found

untrustworthy, we will now also address whether the BIA

should have permitted Ms. Obianuju to supplement the

record with the proffered additional evidence. Because the

IJ has not had the opportunity to determine Ms. Obianuju’s

eligibility for asylum based on the appropriate evidence, we

will grant the petition for review, and remand to the BIA for

further proceedings consistent with this opinion.

4

I.

A. Background

Glory Obianuju Ezeagwuna, a citizen of Cameroon, seeks

asylum in the United States. Prior to her alleged

persecution she lived in Bamenda, a city in the Northwest

Province of Cameroon. She is a member of the English-

speaking minority population, French being the language of

the majority. She claims to have been persecuted because

of her political opinion, and she points to mistreatment

resulting from her membership in two political groups

representing the interests of this Anglophone population —

the Social Democratic Front (“SDF ”) and the Southern

Cameroons National Council (“SCNC”).

Ms. Obianuju provided a detailed account of her abuse in

affidavits, testimony, and corroborating documents.

Following is a summary of the account presented by Ms.

Obianuju in her affidavit in support of her application for

asylum.

Ms. Obianuju’s parents and other family members were

very active members of SDF. In 1994, Ms. Obianuju began

participating in SDF activities, and in 1996, at the age of

eighteen, she became an official member of SDF. Ms.

Obianuju tells of three times that she was jailed and

physically abused because of her political activism. The

first incident took place in 1996 when she joined other SDF

members in protesting the appointment of Francis Faie

Yengo as the leader of the Bamenda Urban Council.

Government police sprayed tear gas on the protestors and

arrested them. Ms. Obianuju claims that she was then

dragged through the gravel on her knees and taken by force

to Bamenda Central Prison where she was beaten on the

soles of her feet and on her knees with police sticks. Ms.

Obianuju’s parents retained an attorney, Robert Nsoh Fon,

to obtain her release from prison and on the fourth day she

was released on bail. Upon her release she visited a doctor,

Dr. Nji, who applied ointment to her hands and knees, and

provided her with painkillers.

Next, in January 1997, Ms. Obianuju and other students

marched to protest a substantial fee increase for taking a

university entrance exam only imposed in the English-

5

speaking areas of Cameroon. Ms. Obianuju marched at the

front of the group. The government police began beating the

students with their belts and spraying tear gas in an effort

to disperse the students. She was kicked in the stomach

and then dragged by an officer through the gravel. In

prison, she was further hit and kicked by the officers. Her

attorney was able to negotiate her release from prison. After

her release, Ms. Obianuju left the SDF and became a

member of the SCNC. Although the SCNC did not hold

demonstrations, its goals were otherwise similar to the

SDF.

In March and April 1997 there were a series of attacks on

police and civilian establishments in Bamenda. According

to Ms. Obianuju, the government blamed the SCNC for the

attacks, but she denies any involvement. Ms. Obianuju

claims that a few weeks after the attacks the police entered

her home at 10 p.m. while she was asleep and physically

removed her from her home without providing any

explanation. During the course of the family’s struggle to

protect her, a police officer cut her mother’s hand with a

knife. Ms. Obianuju was taken to prison and placed in a

cell with other SCNC members where she remained for six

days. During the first day she and the others were beaten

with police sticks on the soles of their feet and on their

knees. During the second day an officer removed her from

her cell and attempted to rape her, but was stopped by

another officer. He bit her on the chest and scratched her

back with his nails, leaving scars. She was repeatedly

kicked in the stomach and hit across her face during the

remainder of her detention. When her lawyer sought her

release, he was told that she was being imprisoned for the

March and April attacks mentioned above. On April 30, she

was released upon payment of 1,500,000 francs.

Upon release she was taken to a doctor, because she was

discharging blood. She subsequently became more ill and

underwent an emergency appendectomy because her

appendix “had been destroyed” by the abuse she suffered.

She remained in the hospital for thirty days thereafter.

On July 31, 1997, Ms. Obianuju’s attorney informed her

that the police had a warrant for her arrest claiming that

she had been improperly released in April. She therefore

6

traveled to Bafut, a city in the Northwest province, to stay

with a family friend, George Moma. She remained in hiding

there indoors until December 1998. She then obtained a

fake passport in the name of George Moma’s sister,

Francisca Biwie Moma. She used this passport to fly to

Jamaica in February 1999. She stayed with a series of new

acquaintances in Jamaica for three weeks. At that time her

return trip was scheduled, and she requested asylum from

the Jamaican immigration office, but they denied her

application and attempted to take her into custody. She

again went into hiding. A Jamaican provided her with a

fake English passport in the name of Rebecca Channon,

and she left on a flight to Newark, New Jersey on August

13, 1999. Upon her arrival at Newark International Airport,

United States immigration officers determined that the

passport was false, and upon questioning by the INS, Ms.

Obianuju sought political asylum. Ms. Obianuju was

deemed inadmissible by the INS under sections

212(a)(6)(C)(i)1 and 212(a)(7)(A)(i)(I)2 of the INA (“Immigration

and Nationality Act”) because she entered the country with

invalid documents, and she was detained and has remained

in detention ever since. She seeks political asylum and

withholding of deportation, and, in the alternative, relief

under the Convention Against Torture (“CAT”).3 She claims

that Cameroonian authorities continue to look for her and

believes that her well-being and even her life would be in

jeopardy if she returned to Cameroon.

B. Proceedings Before the INS

Ms. Obianuju first appeared before the Immigration

1. “Any alien who, by fraud or willfully misrepresenting a material fact,

seeks to procure (or has sought to procure or has procured) a visa, other

documentation, or admission into the United States or other benefit

provided under this chapter is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i).

2. A person is inadmissible if she “is not in possession of a valid

unexpired immigrant visa, reentry permit, border crossing identification

card, or other valid entry document required by this chapter. . . .” 8

U.S.C. § 1182(a)(7)(A)(i)(I).

3. As the relief provided by the CAT is subsumed by the relief provided

by the grants of asylum and withholding of deportation, we will not

address whether she qualifies for relief under the CAT.

7

Judge (“IJ”) on September 2, 1999 pro se. She subsequently

obtained counsel, and a hearing on the merits was held

first on March 3, 2000 and continued on May 9, 2000. Ms.

Obianuju testified at great length and was cross-examined

by INS counsel, Irene Feldman. Ms. Obianuju submitted a

large number of corroborating documents, including

affidavits and declarations of family, friends, and SDF

members, SDF membership cards, and U.S. State

Department Country Reports. At the time of the hearing,

the IJ had before her 37 exhibits provided by Ms. Obianuju

and the INS. Dr. David S. Kang, a family medicine

practitioner who conducted a physical examination of Ms.

Obianuju on November 9, 1999, testified on her behalf. He

concluded that she was credible, in part because she did

not claim that every scar on her body resulted from torture.

Furthermore, the scars she claimed were caused by torture

were consistent with the acts she claimed caused them,

specifically, scars on her knees from being dragged through

the gravel, a scar on her chest from being bitten, and a

surgical scar on her abdomen resulting from her

appendectomy. Ms. Obianuju also moved to admit Dr.

Kang’s affidavit. At the close of this hearing the IJ said:

I have spoken with, to both counsels. I need to, this

matter has to be continued, of course, for the issuance

of the oral decision. And of course Ms. Feldman is

waiting response of the [forensic document laboratory]

report regard, as to one document just recently

submitted. Therefore, this hearing is adjourned for the

26th of May, at 1 p.m. in the afternoon.4

On June 7, 2000, during a continuance of the May 26

hearing, the INS provided a two-page letter from John

Larrea, Vice Consul of the Embassy of the United States in

Yaounde, Cameroon (the “Larrea letter”). The Larrea letter

sets forth in a summary fashion the results of an

investigation conducted into five documents submitted by

4. In support of her motion to reopen, Ms. Obianuju claims that this

statement by the IJ closed the record. We must disagree and find that

the record did not close until the IJ explicitly said so on September 21,

2000. This is further evidenced by the fact that both parties submitted

new evidence in support of motions after the May hearing.

8

Ms. Obianuju: a medical certificate from her doctor in

Cameroon; the arrest warrant; an application for bail; an

affidavit by Ms. Obianuju’s father; and, an affidavit by her

attorney in Cameroon, Robert Nsoh Fon. The letter

concludes that each of these documents is fraudulent. A

copy of each document is attached to the Larrea letter with

notations allegedly made by government officials setting

forth why the document is believed to be fraudulent. No

investigative report is provided, nor is there any information

about the investigation or the investigator.

In order to respond to the letter, on June 16, 2000, Ms.

Obianuju’s counsel requested a 30-day continuance. She

explained: “An additional 30 days would enable us to

address the allegations in the June 7, 2000 letter from the

United States Embassy concerning Ms. Obianuju’s asylum

application, and make any necessary motions with regard

to the findings in that letter.” The continuance was granted.

On July 27, 2000, Ms. Obianuju filed a motion in limine

setting forth five reasons why the Larrea letter should be

excluded: 1) no foundation was laid for Larrea’s opinions, 2)

the letter’s admission would violate the due process

requirement of fundamental fairness; 3) its admission

would violate INS regulations prohibiting the disclosure of

asylum applications to third parties; 4) the admission of

evidence based on this type of investigation would frustrate

future asylum proceedings; and, 5) the letter was not

authenticated in accordance with INS regulations. As

support for the motion, Ms. Obianuju included a July 26,

2000 affidavit from Milton Krieger, a scholar of politics in

Cameroon [“first Krieger affidavit”].5 Dr. Krieger shared his

detailed knowledge of Cameroon, particularly regarding the

government’s persecution of SDF and SCNC members, the

U.S. Embassy’s limited knowledge of the political situation

in Bamenda, and the difficulty of authenticating documents

in Cameroon. Finally, he explained that Ms. Obianuju’s

5. Milton Krieger has spent many months in Cameroon studying its

political system. Since 1989 he has been to Cameroon four times and

stayed there each time for between four and ten months. He is the

author of African State and Society in the 1990s: Cameroon’s Political

Crossroads (Joseph Takougang co-author, 1998).

9

account of what occurred was credible and shared his

opinion that if she returned there was “a significant

probability that Ms. Obianuju would be severely harassed,

beaten, tortured or possibly even killed.”

On August 7, 2000, the INS moved for a continuance of

the hearing set for August 9 in order to obtain an original

of the Larrea Letter. On that very same day, August 7,

counsel for the INS obtained a letter from Marc J. Susser,

Director, Office of Country Reports and Asylum Affairs,

United States Department of State (the “Susser letter”). The

entire text of the Susser letter is set forth in the appendix

to this opinion. Susser explained in his opening paragraph:

“I am writing to forward the results of an investigation, by

a Foreign Service post, of documents presented in support

of the asylum application of [Glory Obianuju]. These

documents were forwarded to us by your office.” The Susser

letter is simply a restructured version of the Larrea letter,

utilizing almost the exact same language. Significantly,

however, the referenced documents are not attached to the

Susser letter.

Although the Susser Letter is dated August 7, 2000, it

was not provided to the IJ or Ms. Obianuju’s counsel until

September 18, 2000, three days before the hearing date.6

On September 18, the INS sent a letter to the IJ as a

response to Ms. Obianuju’s motion in limine. In addition to

rebutting the arguments made in the motion in limine, the

INS provided the Susser letter “since [Ms. Obianuju] has

objected to the admissions of the letter from John Larrea.”

The INS contended:

In an effort to provide Your Honor with an original

letter, the Service respectfully submits the more recent

Department of State letter in lieu of the prior

submission. To date, the Service has not received the

original copy of the Larrea Letter. Although the

respondent has questioned the integrity of the

Embassy staff, it would be beyond the realm for the

respondent to question the recent letter submitted by

6. Ms. Obianuju’s counsel claims not to have received the letter until

September 19, 2000.

10

Marc J. Susser, Director of the Office of Country

Reports and Asylum Affairs.

The INS, therefore, no longer sought to admit the Larrea

letter nor did it submit copies of the allegedly fraudulent

documents for consideration as part of the record. It only

moved for admission of the two-page Susser letter.

On September 21, 2000, the day of the hearing, counsel

for Ms. Obianuju presented the IJ with a letter expressing

her objections to the Susser letter, primarily reiterating the

concerns set forth in the motion in limine. On September

21, the IJ heard from both counsel regarding the

admissibility of the Susser letter and other documents. As

the INS no longer sought admission of the Larrea letter, it

was marked for identification purposes only. Without any

explanation, the IJ admitted the Susser letter over Ms.

Obianuju’s objections. The IJ closed the record at this

hearing.7

On October 30, 2000, the IJ issued a written opinion.

The IJ found that Ms. Obianuju had not established that

she suffered past persecution or a well-founded fear of

persecution, and therefore denied her applications for

asylum, withholding of removal, and relief under the

Convention Against Torture. The IJ’s decision was based

almost entirely on its finding that Ms. Obianuju was not

credible. First, the IJ said that Ms. Obianuju’s testimony

seemed exaggerated and rehearsed. Second, the IJ believed

that details of her testimony “simply did not add up.” She

pointed specifically to the implausibility of Ms. Obianuju’s

explanation for discrepancies with her membership cards,

that she was repeatedly mistreated by officers in exactly the

same manner, and that the government would search so

actively for a girl who was only moderately involved in

political activity. Third, the IJ found that several reports

7. “The record is closed, but for the decision of the Court. Understood,

counsels? I will accept no further documents unless there’s a showing

that this document was unavailable, and is germane to the case, and it

was unavailable at the, and it was clearly unavailable, and this clearly

this document is extraordinary, and would clearly substantiate the

respondent’s claim. So the record is closed but for the submission, the

issuance of the decision.”

11

provided by the INS questioned the authenticity of

documents submitted by Ms. Obianuju, as well as the

veracity of her testimony. Specifically, the IJ pointed to the

Susser letter, the INS Forensic Document Laboratory

(“FDL”) report questioning the authenticity of one SDF card,

and a document entitled “Abuse of Membership of the

Social Democratic Front by Asylum Seekers” prepared by

the SDF in Cameroon. Finally, the IJ explained that it was

unbelievable that a person in her position would be the

subject of the persecution she claimed.

Ms. Obianuju filed an appeal with the Board of

Immigration Appeals on November 27, 2000. On July 10,

2001, Ms. Obianuju filed a motion to supplement the

record for her asylum application. She asked the BIA to

consider three additional documents that were not part of

the record before the IJ: an affidavit of Sister Jane Mankaa,

a Cameroonian nun living in New Jersey who visited Ms.

Obianuju’s parents in August 2000; a second affidavit of

Dr. Milton Henry Krieger commenting in part on Sister

Mankaa’s affidavit; and, an affidavit of Dr. Frances Geteles,

a certified clinical psychologist who examined Ms. Obianuju

in July 2001. All three affidavits provide support for Ms.

Obianuju’s version of events and bolster her credibility. Ms.

Obianuju also asked the BIA to consider a June 21, 2001

memorandum from Bo Cooper, General Counsel to the INS.

Cooper set forth the proper procedure to follow when

conducting overseas investigations in order to ensure the

confidentiality of the asylum applicant. Ms. Obianuju

offered the letter as support for her argument on appeal

that the confidentiality of her application was breached by

the investigation reflected in the Susser letter.

Without oral argument, the BIA issued its decision on

August 17, 2001. The BIA first denied Ms. Obianuju’s

motion to supplement the record. It explained: “[T]he Board

is an appellate body whose function is to review, not create

a record. Thus it would be inappropriate for us to accept

the evidence proffered by the respondent.” (citation

omitted). The BIA also refused to remand to the IJ for it to

consider the additional evidence, because, with the

exception of Dr. Geteles’s affidavit, it was “not shown that

the affidavits could not have been presented on or before

12

close of the hearing on the merits which was concluded on

September 21, 2000.” The BIA further found that Dr.

Geteles’s affidavit would not change the outcome in the

case and therefore did not merit reopening the record.

The BIA then conducted a de novo review of the record,

found that the IJ’s decision was correct, and dismissed the

appeal. In the course of its analysis, however, the BIA

disagreed with much of the IJ’s reasoning, specifically two

of the primary grounds on which the IJ relied when

concluding that Ms. Obianuju was not credible. The BIA

explained: “We disagree with the Immigration Judge that it

is implausible that the respondent may have been abused

on different occasions in similar ways or that as a rank and

file member of the SDF she would not have been subject to

custodial abuse.” The BIA also found that the IJ’s

description of Ms. Obianuju’s testimony did not reflect

whether her demeanor was a result of rehearsal, as the IJ

concluded, or instead “related to the respondent’s repetition

of stressful events in different venues with resulting

emotional numbness.” The BIA concluded: “Consequently,

to the extent that the Immigration Judge’s decision is based

upon finding these accounts of the respondent incredible

solely based upon their implausibility and/or the manner

in which the testimony was provided, we disagree with the

Immigration Judge.”

The remainder of the BIA’s decision focused on the

allegedly fraudulent corroborating documents submitted by

Ms. Obianuju based on the “investigation” results set forth

in the Susser letter. The BIA concluded that the Susser

letter was properly admitted and considered by the IJ. The

BIA essentially adopted the conclusions of the Susser letter

and concluded that the five pieces of evidence discussed

therein were fraudulent: the medical certificate from her

doctor in Cameroon; the arrest warrant; the bail

application; the affidavit of Ms. Obianuju’s father; and the

affidavit by her attorney in Cameroon, Robert Nsoh Fon.

The BIA also concluded that one of the SDF membership

cards she submitted was fraudulent because of the

discrepancy between the dates of contribution, beginning in

1991, and the date she claims to have joined, in 1996. The

BIA specifically rejected Ms. Obianuju’s explanation,

13

supported by affidavits of SDF members, regarding the

practice of backdating membership cards when a member

paid dues for previous years.

The BIA’s finding that the evidence described in the

Susser letter was fraudulent was the linchpin of its

decision:

In essence, there is a pattern in the evidence consistent

with the repeated fabrication of identities for

individuals signing documents presented by the

respondent and this pattern is reinforced by stamps on

affidavits which appear to be fake and the failure to

register documents in the High Court of Bamenda as

required. We find this pattern consistent with the

production of counterfeit evidence as opposed to the

administrative lapses and corruption described by the

respondent or intentional efforts to discredit her

persecution claim.

The BIA focused on Ms. Obianuju’s submission of

fraudulent documents, and not the substance of the

evidence supporting Ms. Obianuju’s claims:

We find that the respondent’s failure to meet the

burden of proving eligibility for relief is directly related

to the adverse credibility determination and the

presence of counterfeit evidence presented in an

attempt to corroborate the respondent’s account. It is

the presentation of counterfeit documents to bolster

her claim, rather than the failure to present any

specific supporting evidence, which has resulted in the

failure of proof.

Notwithstanding its concerns regarding the IJ’s analysis,

the BIA ultimately reached the same conclusion and

rejected Ms. Obianuju’s application due to her lack of

credibility, although based on the submission of falsified

documents. The BIA concluded:

Despite the fact that we do not agree with all aspects

of the Immigration Judge’s decision, we see no reason

to disturb the adverse credibility determination. We

find that the respondent’s efforts to explain and/or

rebut the findings of United States officials are

14

inadequate and that such counterfeit corroborative

evidence discredits not only the specific evidence itself,

but indicates an overall lack of credibility regarding the

entire claim. As the adverse credibility determination is

dispositive for purposes of eligibility, the respondent’s

appeal from the denial of her applications for asylum,

withholding of removal, and relief under the CAT is

dismissed.

(citations omitted).

Ms. Obianuju then filed this petition for review.

II.

We have jurisdiction to review the BIA’s final order

pursuant to 8 U.S.C. § 1252(a)(1). The BIA had jurisdiction

under 8 C.F.R. § 3.1(b)(9). As it conducted an independent

analysis of the record, we limit our review to the BIA’s final

order. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.

2001). Our analysis of the order will proceed in two parts.

First, we will review de novo whether Ms. Obianuju’s due

process rights were violated. Chong v. INS, 264 F.3d 378,

386 (3d Cir. 2001). Next, we will consider whether the BIA

abused its discretion in refusing to reopen the record and

remand to the IJ for it to consider supplemental evidence.

Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001).

A. Reliance on Susser Letter Violated Ms. Obianuju’s Due

Process Rights

We must first consider Ms. Obianuju’s challenge to the

BIA’s consideration of the Susser letter. This is a crucial,

threshold consideration, because, as we noted, the BIA’s

decision was based almost entirely on the Susser letter,

and it is clearly the underpinning for the BIA’s conclusion

that Ms. Obianuju’s testimony was not credible and that

her corroborative evidence was fraudulent. Without the

Susser letter, the majority of the BIA’s reasoning actually

supports Ms. Obianuju’s case. Because we believe that the

BIA’s reliance on the letter violated her Fifth Amendment

right to due process, we need not address Ms. Obianuju’s

other challenges to the letter.

15

Due process protections are afforded to aliens facing

removal. See, e.g., Abdulai v. Ashcroft, 239 F.3d 542, 549

(3d Cir. 2001) (“Despite the fact that there is no

constitutional right to asylum, aliens facing removal are

entitled to due process.”); Chong v. INS, 264 F.3d 378, 386

(3d Cir. 2001) (“Aliens facing removal are entitled to due

process.”). Because the Federal Rules of Evidence do not

apply in asylum proceedings, “[t]he test for admissibility of

evidence . . . is whether the evidence is probative and

whether its use is fundamentally fair so as not to deprive

the alien of due process of law.” Bustos-Torres v. INS, 898

F.2d 1053, 1055 (5th Cir. 1990); see Lopez-Chavez v. INS,

259 F.3d 1176, 1184 (9th Cir. 2001) (“The sole test

governing the admission of evidence in deportation

proceedings is whether the evidence is probative and its

admission is fundamentally fair.”) (quotation omitted). As

the Court of Appeals for the Second Circuit has explained:

“In the evidentiary context, fairness is closely related to the

reliability and trustworthiness of the evidence.” Felzcerek v.

INS, 75 F.3d 112, 115 (2d Cir. 1996). Therefore, our

analysis as to whether an individual’s constitutional rights

are violated turns on whether the evidence considered by

the BIA is reliable and trustworthy. For the reasons

discussed below, we find that the admission of the Susser

letter violated Ms. Obianuju’s due process rights.

Succinctly stated, the Susser Letter does not satisfy our

standards of reliability and trustworthiness. Initially, we are

troubled by the dates of the INS’s procurement of the

Susser Letter and the timing of its being provided to Ms.

Obianuju’s counsel and the IJ a few days before the final

hearing. As we noted above, the date that INS counsel

requested an extension in order to obtain the original of the

Larrea letter — August 7, 2000 — is the very same date

that appears on the Susser letter. However, the INS only

provided the Susser letter to the IJ and Ms. Obianuju’s

counsel nearly six weeks later, on September 18, 2000,

when it sought to introduce it into evidence as a

replacement for the Larrea letter which was ultimately

marked for identification purposes only. Furthermore,

Susser noted in his August 7 letter: “These documents were

forwarded to us by your office.”

16

Second, although hearsay can be admitted in asylum

cases under certain circumstances, see, e.g., Kiareldeen v.

Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001), reliance on

such evidence here raises the precise concerns that are

fundamental to its general inadmissibility in civil

proceedings, and raises concerns that it is not

fundamentally fair. As we have previously explained:

“Hearsay is generally inadmissible because the statement is

inherently untrustworthy: the declarant may not have been

under oath at the time of the statement, his or her

credibility cannot be evaluated at trial, and he or she

cannot be cross-examined.” U.S. v. Reilly, 33 F.3d 1396,

1409 (3d Cir. 1994) (quotation omitted). Although the

Federal Rules do not apply in this case, exceptions set forth

in the Rules focus on trustworthiness, further indicating

why we regard hearsay with a level of suspicion. See, e.g.,

Fed. R. Evid. 803(6)-(8) (“Hearsay Exceptions; Availability of

Declarant Immaterial”); Fed. R. Evid. 804(b)(3) (“Hearsay

Exceptions; Declarant Unavailable”); Fed. R. Evid. 807

(“Residual Exception”).

The Susser letter is multiple hearsay of the most

troubling kind. It seeks to report statements and conduct of

three declarants who are far removed from the evidence

sought to be introduced. They are purportedly individuals

who told the investigator that certain aspects of the

documents appeared to be fraudulent. Not only does Susser

have no direct knowledge of the investigation, he did not

even directly communicate with John Larrea, the declarant

whose hearsay statements he is repeating. Therefore, the

current speaker — Susser — was unable to even evaluate

the credibility of the immediate preceding declarant —

Larrea — who of course was himself only a proponent of

hearsay. Further, we do not know whether Larrea had any

interaction with “the investigator,” only referred to as “she,”

who reports to Larrea what others have purportedly told

her. Given that the consul is in Yaounde and the

investigation necessarily took place in Bamenda, it seems

entirely possible that Larrea’s sole source for the hearsay

statements was the notations written on the document.

Therefore, Larrea would also have been unable to judge the

credibility of the investigator, also a proponent of hearsay.

Therefore, Susser was three steps away from the actual

17

declarants; all we know about the two individuals who have

forwarded these written statements is that one is a

Cameroonian Foreign Service National who conducted “an

investigation” for the U.S. Embassy in Cameroon and the

other is John Larrea, who worked as Vice Consul for the

U.S. Embassy in Cameroon but now, according the INS,

cannot be located by the Government.8

A comparison of the letters shows that Susser simply

repeated Larrea’s representations with slight variations in

sentence construction, bolstering the conclusion that

Susser’s knowledge of the investigation was limited solely to

the Larrea letter itself.9 Consideration of the first

representations, regarding the medical certificate, is

illustrative. Larrea explained:

The Director of Administrative Affairs in the Provincial

Hospital of Bamenda told us that no doctor named

Chefor James N. has ever worked at the hospital. He

added that there is no medical record at the hospital

for Glory Obianuju and the round stamp and the form

used for the Medico-Legal Certificate are fake. It is our

conclusion that this document is fraudulent.

Susser similarly stated:

Regarding the Medico Legal Certificate, the Director of

Administrative Affairs in the Provincial Hospital of

Bamenda stated that the round form and the stamper

used for the Certificate are fake, and that there is no

medical record at the hospital for Glory Obianuju. He

also noted that no doctor by the name of James N.

Chefor has ever worked at the hospital. The

8. While counsel for Ms. Obianuju suggested that Embassy personnel

often had pressures on them which could lead to less than accurate

reports, and the INS contends that these individuals would not risk their

jobs to undermine an asylum application, we make no judgment

regarding the veracity or motives of these individuals. Our analysis is

based not on these aspects, but on the information the BIA had before

it when it based its decision on the Susser letter.

9. The Susser letter does not recite Larrea’s statement that he “does not

believe that any claims for asylum in recent years based upon political

beliefs or SDF membership have any merit.” Larrea’s statement is in

direct conflict with the State Department Country Reports on Cameroon.

18

investigator in the U.S. Embassy in Yaounde,

Cameroon, concluded that this document is

fraudulent.

Susser provided no information in his letter which was not

already stated in almost the precise same words in the

Larrea letter. The INS has not contended before us or the

BIA that Susser has any personal or even second-hand

knowledge of the investigation. His knowledge is limited to

the Larrea letter which was not even sought to be admitted

in this case because of the INS’s inability to obtain the

original.

Third, we are concerned that the INS is attempting to use

the prestige of the State Department letterhead to make its

case and give credibility to the letter’s contents. As we have

previously noted,

the Board’s decisions cannot be sustained simply by

invoking the State Department’s authority. We are

expected to conduct review of the Board’s decisions,

and that procedural safeguard would be destroyed if

the Board could justify its decisions simply by invoking

assertions by the State Department that themselves

provide no means for evaluating their validity. See

Galina v. INS, 213 F.3d 955, 958-59 (7th Cir. 2000).

The Board cannot hide behind the State Department’s

letterhead.

Li Wu Lin v. INS, 238 F.3d 239, 246 (3d Cir. 2001). This

seems to be precisely what the INS intended to do in this

case, as it explained: “Although the respondent has

questioned the integrity of the Embassy staff, it would be

beyond the realm for the respondent to question the recent

letter submitted by Marc J. Susser, Director of Office of

Country Reports and Asylum Affairs.”

Fourth, partially due to the multiple levels of hearsay

involved here, we have absolutely no information about

what the “investigation” consisted of, or how the

investigation was conducted in this case.10 In combination

10. The Lawyers Committee for Human Rights filed an amicus curiae

brief arguing that we should rule the Susser letter inadmissible because

19

with the concerns we note above, we believe that the

complete dearth of information about the investigator or the

investigation undermines the Susser letter as not only

untrustworthy, but also unhelpful. Further adding to our

concern, Dr. Milton Krieger, a scholar of politics in

Cameroon, expressed his belief “that it is very difficult to

prove and/or disprove the authenticity of documents

created in Cameroon since political tensions and

administrative lapses and corruption intensified in the early

1990s.” We also agree with Ms. Obianuju’s contention that

the persons contacted provided only indirect attacks as to

the genuineness of the documents. For instance, rather

than locate the individual who supposedly signed the

warrant, or confirm through authorities that such person

existed, the investigator presented the warrant to a different

magistrate who states: “After a thorough search in my

chambers, I have not been able to get any trace of evidence

that a warrant of arrest was ever issued.” JA41. There is no

reason to expect that the warrant would be in this

magistrate’s chambers.

We have previously expressed concern about the BIA’s

attributing significance to activities such as interviews at

airports when it lacked key information regarding the

manner in which interviews were conducted.

Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998);

Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998).

Although we did not consider whether there was a due

process violation in those cases, we did conclude that the

BIA’s adverse credibility determination was faulty because

the airport interviews were not “valid grounds upon which

to base a finding that the applicant [was] not credible.”

Balasubramanrim, 143 F.3d at 164 (quotation omitted); see

Senathirajah, 157 F.3d at 216. In Balasubramanrim, we

noted that we did “not know how the interview was

conducted or how the document was prepared.” 143 F.3d at

the confidentiality of Ms. Obianuju’s asylum application was violated by

the investigation. We agree that the guarantee of confidentiality is

significant, but the issue in this case is resolved by the violation of Ms.

Obianuju’s due process rights and therefore we do not reach this

argument.

20

162. In Senathirajah, relying in large part on our reasoning

in Balasubramanrim, we likewise were troubled by the

interview because “[t]he government offered no testimony as

to the circumstances under which that affidavit was

obtained.” 157 F.3d at 218. The manner of eliciting such

information is crucial to their probative value. Similarly,

here, the nature of the purported “investigation” is a matter

of pure conjecture and can provide no basis for a finding of

falsification on the part of Ms. Obianuju.

We find that the BIA violated Ms. Obianuju’s due process

rights by basing its credibility finding almost entirely on the

Susser letter, because it appears neither reliable nor

trustworthy. As in Lin, Balasubramanrim, and Senathirajah,

“[t]he Board’s performance in this case was less than it

should have been.” Lin, 238 F.3d at 248. Accordingly, on

remand, the BIA must consider the record before it absent

the Susser letter.

B. Additional Evidence

We next consider whether the BIA abused its discretion

in denying Ms. Obianuju’s motion to reopen the record and

remand to the IJ for it to consider four additional pieces of

evidence: an affidavit of Sister Jane Mankaa, a nun who

visited Ms. Obianuju’s parents in Cameroon in August

2000; an affidavit of Dr. Milton Henry Krieger discussing

the reliability of Sister Mankaa’s affidavit; a psychological

evaluation of Ms. Obianuju by Dr. Frances Geteles; and a

June 2001 memorandum from Bo Cooper, General Counsel

to the INS, setting forth the proper procedure to follow in

overseas investigations to ensure the confidentiality of the

asylum applicant. We find that the BIA did not err in

finding that the affidavits of Sister Mankaa and Dr. Krieger

could have been presented on or before the close of the

record, and thus not permitting their consideration, but

that it did abuse its discretion in determining that Dr.

Geteles’s psychological evaluation was not material and

should not have been considered by the IJ. We will

therefore remand to the BIA for it to reopen the record and

remand to the IJ for consideration of the psychological

evaluation. Finally, we conclude that the Cooper memo,

which related to the investigation referenced in the Susser

21

letter, is no longer material, and accordingly we will not

require the BIA to allow its submission.

“A motion to reopen proceedings shall not be granted

unless it appears to the Board that evidence sought to be

offered is material and was not available and could not

have been discovered or presented at the former hearing.”

8 C.F.R. § 3.2(c)(1). We review the BIA’s denial of the motion

to reopen for abuse of discretion, “mindful of the ‘broad’

deference that the Supreme Court would have us afford.”

Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001) (citing INS

v. Abudu, 485 U.S. 94, 108 (1988)).

The BIA denied Ms. Obianuju’s motion to reopen to

present additional evidence on the grounds that she had

not proven that Sister Mankaa’s affidavit, Dr. Krieger’s

affidavit, and the Cooper memo “could not have been

presented on or before the close of the hearing on the

merits which was concluded on September 21, 2000.” The

BIA found that the psychological evaluation could not have

been presented prior to the close of the record, but that

“there is other evidence of record of the respondent’s

medical examination in the United States,” and that “in

view of the basis of [its] disposition of this case, it does not

appear that evidence of psychological evaluation

subsequent to the immigration hearing would change the

outcome.”

First, we find that the BIA did not abuse its discretion in

finding that Sister Mankaa’s and Dr. Krieger’s affidavits

could have been presented prior to the close of the record.

Because Dr. Krieger’s affidavit is an evaluation of Sister

Mankaa’s affidavit, the time frame for the Sister’s affidavit

governs both pieces of evidence. That is, if her affidavit

could have been presented prior to the close of the

evidence, then so could his. We will therefore address these

two affidavits together.

Sister Mankaa’s affidavit was taken in support of Ms.

Obianuju’s parole application of May 17, 2001. The affidavit

itself is not dated. In her affidavit, Sister Mankaa states

that she learned of Ms. Obianuju’s detention from a friend

and visited Ms. Obianuju at her detention center in New

Jersey before Ms. Obianuju was transferred to a detention

22

center in New York. After that, she and Ms. Obianuju were

in “regular contact by mail.” She then states that she went

home to Cameroon in August 2000 and visited Ms.

Obianuju’s family there. She details what Ms. Obianuju’s

parents told her about the persecution Ms. Obianuju would

face if she returned home. Nowhere in the affidavit does

Sister Mankaa state when she returned from Cameroon.

Ms. Obianuju contends that she could not have

presented this evidence before September 21, 2000 because

she and her counsel did not learn of that trip until several

months later. The government argues that the affidavit does

not meet the threshold requirement of establishing its

unavailability at the hearing because it does not contain

any information as to when the affidavit was taken or when

the Sister returned to the United States.

We agree with the government’s position and find that

the BIA did not abuse its discretion in finding that these

affidavits could have been presented prior to the close of

the record. The BIA was provided with a document that did

not contain any dates except to state that the trip occurred

in August 2000, prior to the close of the record. Since

Sister Mankaa states that she and Ms. Obianuju were in

“regular contact,” it was within the realm of discretion for

the BIA to conclude that Ms. Obianuju could have found

out about the trip and presented the information. Although

it is true that this affidavit, and Dr. Krieger’s, were

presented in response to the Susser letter, which Ms.

Obianuju did not have until three days prior to the final

hearing, Ms. Obianuju had been in possession of the Larrea

letter since June 2000, which contained almost exactly the

same contentions. Ms. Obianuju therefore was on notice

that her credibility and the legitimacy of her claim were

being challenged.11

11. While we do not find that the BIA was required to reopen the record

to allow the IJ to consider Sister Mankaa’s and Dr. Krieger’s affidavits,

we note that, on remand, the IJ may wish to consider these affidavits so

that he has a fully developed record on which to rest his ruling. See

Jacinto v. INS, 208 F.3d 725, 733 (9th Cir. 2000) (immigration judge, like

administrative law judge in social security cases, has a duty to fully

develop the record).

23

However, we find that BIA did abuse its discretion in

denying the motion as to the psychological evaluation. The

BIA found that the report could not have been presented

earlier, but that it was duplicative of a previous medical

report and would not change the outcome. See Matter of

Coelho, 20 I.&N. Dec. 464 (BIA 1992) (“if we conclude that

our decision on the appeal would be the same even if the

proffered evidence were already part of the record on

appeal, we will deny the motion to remand”).

We find that the psychological evaluation is material and

not simply repetitive of the other medical evidence. The

“other evidence” that was in the record consists of a four

page medical report by Dr. Kang, a family doctor who has

received specialized training in documenting and treating

victims of torture. The psychological components of the

report include two statements about Ms. Obianuju’s

psychiatric state and a conclusion that her explanation of

events was consistent and that she was most likely telling

the truth. The report also concludes that a physical exam

was consistent with her story.

The psychological evaluation Ms. Obianuju seeks to

submit was conducted by Dr. Geteles, a clinical

psychologist who has also received special training in the

detection and documentation of torture. Her seven page

report contains two pages of “Psychological Assessment,”

including a diagnosis of Post Traumatic Stress Disorder

and Major Depressive Disorder, and the doctor’s conclusion

that Ms. Obianuju “possesses a psychiatric profile

consistent with and strongly corroborative of her claim that

she was the victim of persecution and continues to suffer

the effect of those experiences.” This report adds new,

material information beyond what was contained in Dr.

Kang’s report.

Because we see no need to question the BIA’s finding

that the information could not have been presented prior to

the close of evidence, but find that the evaluation is

material, we will remand to the BIA with instructions to

reopen the record and remand to the IJ for consideration of

the evaluation.

Finally, both parties agree that the BIA erred when it

found that the Cooper memo could have been presented

24

prior to the close of evidence. The BIA erroneously stated

that the memo was dated June 2000, however, a closer

look reveals that the memo is dated “June 2001.” The

memo was therefore clearly not available prior to the close

of evidence. However, this memo was intended to cast

doubt on the investigation outlined in the Susser memo

and is therefore no longer material because we have already

held the Susser letter to be untrustworthy and its use a

violation of Ms. Obianuju’s due process rights. As the

memo is no longer material, we will not require the IJ to

consider it.

III.

The BIA violated Ms. Obianuju’s due process rights by

resting its credibility determination almost entirely on the

unreliable and untrustworthy Susser letter. In addition, the

BIA abused its discretion by refusing to reopen the record

and remand to the IJ for it to consider a material

psychological report. We will not assess Ms. Obianuju’s

entitlement to relief based on the record as we have

required it to be modified by this opinion because the

agency should have the opportunity to do so. See INS v.

Ventura, 123 S. Ct. 353, 356 (2002). We will therefore

remand to the BIA for further proceedings regarding Ms.

Obianuju’s petition without reliance on the Susser letter

and aided by the additional psychological evaluation.

Accordingly, we will GRANT the petition for review, and

REMAND this case to the BIA for further proceedings

consistent with this opinion.

25

Appendix

Susser Letter

Bureau of Democracy,

Human Rights and Labor

August 7, 2000

NAME: Obianuju, Glory

A #: 76 142 746

COUNTRY: Cameroon

Irene Feldman

Assistant District Counsel

U.S. Department of Justice

Immigration and Naturalization Service

Elizabeth, NJ 07201

Dear Ms. Feldman:

I am writing to forward the results of an investigation, by

a Foreign Service post, of documents presented in support

of the asylum application of the above-named individual.

These documents were forwarded to us by your office.

Regarding the Medico Legal Certificate, the Director of

Administrative affairs in the Provincial Hospital of Bamenda

stated that the round form and the stamp used for the

Certificate are fake, and that there is no medical record at

the hospital for Glory Obianuju. He also noted that no

doctor by the name of James N. Chefor has ever worked at

the hospital. The investigator in the U.S. Embassy in

Yaounde, Cameroon, concluded that this document is

fraudulent.

Regarding the affidavits dated October 22 and November

15, 1999, the president of the High Court of Bamenda

stated that the round stamp and the Commissioner for

Oaths stamps are fake. He further stated that neither

affidavit had been registered or sworn in the High Court of

Bamenda. It is the Embassy investigator’s conclusion that

this document is fraudulent.

It is the Embassy investigator’s conclusion that arrest

warrant and application for bail documents are also

fraudulent. The arrest warrant lacks key information such

as the charge number and dates of appearance and time.

26

The application for bail was allegedly signed by an

individual who has never served as president of the court.

We hope that this information is helpful. If we can be of

any further assistance. Please do not hesitate to contact us.

Sincerely,

Marc J. Susser

Director

Office of Country Reports

and

Asylum Affairs

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit