NEWS FROM THE COURTS

Ezeagwuna v. Ashcroft, Third Circuit

In this case, the court ruled that reliance on a hearsay letter from the State Department was not a sufficient basis for an adverse credibility determination, and that in relying on the letter, the Board of Immigration Appeals violated the petitioner’s due process rights. 

Glory Obianuju Ezeagwuna, a citizen of Cameroon, applied for asylum in the US, claiming that she had been persecuted in Cameroon because of her political activities.  She is a member of the English speaking population of the country, which is a minority.  She was a member of two different groups that represented the interests of this population.  At her asylum hearing, she presented evidence of her activities, and of the government’s response to them.  Three times she was jailed and beaten, and on one occasion, a guard attempted to rape her.  After learning that the police has issued a warrant for her arrest, she went into hiding.  A year later, she obtained a fake passport and went to Jamaica.  She applied for asylum and was denied.  She again went into hiding and obtained another fake passport, which she used to enter the US.  When she applied for entry, the INS determined that the passport was a fake and placed her in detention.

Following a hearing, the immigration judge continued the case while the INS obtained a report from a document examiner.  At the second hearing, the INS entered into evidence a copy of a letter from the vice-consul of the US embassy in Cameroon detailing its investigation into some of the documents Obianuju had submitted.  According to the letter, all the documents she submitted were fraudulent.  However, the letter contained no basis for this determination, simply a statement that, according to Cameroon government officials, they were fraudulent.  Her attorney filed a motion to exclude the letter from the case, supported in part by an affidavit from an expert on the political situation in Cameroon.  The INS countered with another letter from the State Department, essentially restating the first.  Obianuju’s attorney again objected to the admission of this letter, but, without explanation, the immigration judge admitted it.

The immigration judge denied the asylum application, finding that Obianuju had not established past persecution or a well-founded fear of future persecution.  The basis for this determination was the finding that she was not credible.  According to the immigration judge, her testimony was exaggerated, rehearsed and implausible.  He also found, based on the State Department letter, that the documents she submitted were not credible.  She appealed to the Board of Immigration Appeals, and attempted to supplement the record with additional evidence.  The Board did not allow this, and without oral argument, issued a decision affirming the immigration judge.  The Board found that while the immigration judge erred in finding Obianuju not credible because of her testimony, but did find that, based on the State Department letter, the documents she submitted were fraudulent, and therefore an indication of her lack of credibility.  She then appealed to the Third Circuit.

On appeal, Obianuju argued that the reliance on the State Department letter violated her due process rights.  The Third Circuit agreed, finding that the letter was not sufficiently reliable or trustworthy.  Also, the court found that reliance on the letter raised significant hearsay concerns.  As a second hand report of a letter from someone the writer of the second letter did not speak with, the letter is completely devoid of any evidence to support the credibility of its statements.  The court found the Board was also improperly relying on the prestige of the State Department to bolster its cases.  Therefore, the court found that the Board violated Obianuju’s due process rights in relying solely on the State Department letter in making its credibility determination.  Eliminating this letter from the record, the court found that Obianuju was in fact persecuted because of her political opinion, and that she would likely face persecution in the future if returned to Cameroon.  Therefore, the court reversed the denial of asylum and remanded the case with instructions to grant asylum.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/3rd/013294p.pdf.

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