The 911 Commission Report As FRE 702 Evidence

While the FRE did not apply to removal proceedings involving an immigrant who was alleged to be a national security danger and use of the 9/11 Commission Report was not fundamentally unfair, even had FRE 702 been applicable, admission of the 911 Report was not erroneous since the Report was “was akin to an expert report,” in Malkandi v. Mukasey, 544 F.3d 1029 (9th Cir. 2008), amended opinion, Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009)

In a recent case, the Third Circuit cited the familiar proposition that the FRE does not generally apply in immigration proceedings. See FRE 1101(d)(3) In Yusupov v. Attorney General of U.S., __ F.3d __ (3d Cir. June 16, 2011) (No. 09-3074) (BIA‘s determination that alien Yusupov presents an actual and present danger to the United States is not supported by substantial evidence, directing agency to grant application for withholding of removal.) In this case, reference was made to a little-recognized case decided by the Ninth Circuit in 2009. In Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009)_, the circuit assessed the status of the National Commission on Terrorist Attacks Upon The United States, "The 9/11 Commission Report" as credible evidence in an immigration proceeding, exempted from operation of the FRE, and that even had the FRE 702 applied, that it was "akin to an expert report," so that immigrant allegedly a national security danger was not denied fundamental fairness by the admission of the 9/11 Commission Report because the immigrant had the opportunity to dispute the report, which had not been entered into the record but which provided evidence of the petitioner's ties to al Queda.

In the Ninth Circuit case, immigration petitioner Malkandi, an Iraqi national, was granted permanent residence in 2000. When it was discovered that he lied to gain refugee status and that he insisted on his misrepresentations, he was determined to be a threat to national security. Specifically, the government alleged that he served as a “travel facilitator” for “a notorious al Queda operative” involved in the 9/11 attacks on the United States.

According to the Report of the 9/11 Commission, the petitioner was involved in a plot to bring the al Queda operative into the United States, supposedly for medical reasons. Removal proceedings were commenced against Malkandi and the Immigration Judge determined he should be removed from the country because he made false representations to gain asylum and that there was reason to believe he was a danger to national security. The Board of Immigration Appeals (BIA) affirmed.

On appeal to the Ninth Circuit, the petitioner complained, in part, that the immigration Judge’s “underlying documentation from the 9/11 Report was not in the administrative record, thus undermining the evidence establishing his connections to” the al Queda operative. The circuit affirmed the removal order, assessing the reliability of the information used by immigration to determine that the petitioner was not entitled to refugee status. According to the Circuit:

The 9/11 Report, which was akin to an expert report, was commissioned by Congress. The 9/11 Commission reviewed more than 2.5 millions pages of documents, interviewed more than 1,200 individuals, held 19 days of hearings and took public testimony from 160 witnesses. 9/11 Report at xv. Malkandi was confronted with specific evidence in the report and had fair notice of the evidence that linked him to terrorists. Nothing required the IJ to compel the introduction of the massive underlying documentation. We first note that immigration proceedings are “not bound by strict rules of evidence.” And, even in a traditional civil trial context where the evidentiary rules are in play, Federal Rule of Evidence 702 provides that “the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” In light of the circumstances here, reference to the 9/11 Report was not fundamentally unfair, was not “intrinsically suspect,” and nothing compelled the introduction of the underlying documentation. See Matter of A-H. 231 I. & N. Dec at 789 (holding that evidence that is not “intrinsically suspect” may be relied upon to find reasonable grounds to believe someone is a threat to national security).
Malkandi, 576 F.3d at 916 (citing Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (“Cruz Espinoza next contends that the BIA violated due process by admitting the Form I-213 because the form was hearsay. However, a deportation hearing is an administrative proceeding not bound by strict rules of evidence; nonetheless, aliens must be accorded due process.”) (citing Baliza v. INS, 709 F.2d 1231, 1234 (9th Cir. 1983), De Hernandez v. INS, 498 F.2d 919, 921 (9th Cir. 1974)); cf. Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006) (“holding that hearsay evidence is admissible if it is probative and its admission if fundamentally fair.”))

The circuit noted that the petitioner received “fair notice” of the specific evidence linking him to al Queda contained in the 9/11 Commission Report. It cautioned that the “massive underlying documentation” of the Report did not need to be introduced into the proceeding record. This was because immigration proceedings are “not bound by strict rules of evidence.”

Malkandi, 576 F.3d at 916.

Federal Rules of Evidence