On review of asylum petition, Seventh Circuit notes that immigration judge failed to consider corroboration of the murder of petitioner’s father in newspaper articles, which were self-authenticating under FRE 902(6), in Castilho de Oliveira v. Holder, 564 F.3d 892 (7th Cir. 2009)
FRE 902(6), provides for self-authentication of newspapers and periodicals. The self-authentication rule applies to: “Printed materials purporting to be newspapers or periodicals.” The rationale for the rule is that the “likelihood of forgery of newspapers or periodicals is slight indeed. Hence no danger is apparent in receiving them.” ACN.
The case involved asylum and withholding of removal proceedings by a petitioner who contended that Brazilian officials assassinated his father and threatened his life if he returned. An immigration judge disbelieved the petitioner and denied relief. After the Board of Immigration Appeals affirmed, the Seventh Circuit reviewed the record and concluded that the petitioner “did not receive a fair hearing before a neutral immigration judge.” Castilho de Oliveira, 564 F.3d at 894. As one example, the Seventh Circuit noted the immigration judge’s (IJ) disregard of newspaper articles discussing the murder of his father:
The IJ's apparent determination to make an adverse credibility finding also manifested itself in an outright refusal to consider relevant documentary evidence. Castilho de Oliveira tried to submit numerous newspaper articles—many of them originals—corroborating the details of his father's murder. The IJ refused to consider the articles because they had not come directly from the newspaper's "morgue" and did not bear any form of authentication from the newspaper's publisher. There is no justification for such a requirement. Under the Federal Rules of Evidence, documents purporting to be newspaper articles are self-authenticating, see FRE 902(6), and in immigration proceedings — where the rules of evidence do not apply — evidentiary standards are generally more lax. Absent evidence of forgery, alteration, or some other reason to doubt their authenticity, the IJ was not entitled to completely disregard the newspaper articles.Castilho de Oliveira, 564 F.3d at 897. Based on this and other errors, the Seventh Circuit granted the petition for review, vacated the decision of the Board of Immigration Appeals and remanded the matter for a new hearing. The Castilho de Oliveira case demonstrates the presumption that newspaper articles are self-authenticating. As the Seventh Circuit noted, normally the FRE do not apply to immigration proceedings; instead a due process standard applies. See, e.g., Kholyavskiy v. Mukasey, 540 F.3d 555, 565 (7th Cir. 2008) (during removal proceeding, the FRE, including FRE 702, did not apply in an immigration case concerning the exclusion of an expert witness on ethnic groups in Russia and the treatment of Jews and mentally ill individuals removed to Russia; the petitioner received a fair hearing as he had a reasonable opportunity to present evidence and the witness was allowed to testify on related issues). However, as a separate level of analysis, a hearsay issue may be raised concerning the admissibility of any statements made in the article.
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