Allowing Authentication In Asylum Proceedings By Other Than An Official Government Certification

Immigration judge could not properly exclude as exhibits alleged foreign government documents proffered by an asylum seeker on the grounds that they were not officially certified by the foreign government because a petitioner could attempt to self-authenticate the documents, for example by testifying and establishing a chain of custody as FRE 901 and 902 authentication did not need to be made based on an authentication by counselor officers, but the asylum petitioner could use any “other means” allowed by the FRE to authenticate evidence, in Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. Nov. 27, 2007) (No. 07-72386).

Some circuits have recognized that under the FRE, as applied in certain immigration proceedings, can create a Catch-22 situation. For example, if courts allowed asylum document authentication only through government officials of the government from which one was seeking asylum, it could create a situation requiring "an asylum petitioner to obtain a certification from the very government he claims has persecuted him.” See e.g., Ding v. Ashcroft, 387 F.3d 1131, 1135 n.4 (9th Cir. 2004) (“The exclusion of documents because the Chinese authorities refused to authenticate them runs contrary to our longstanding principle excusing such authentication because ‘[p]ersecutors are hardly likely to provide their victims with [documentation] attesting to their acts of persecution.’”). The Ninth Circuit had occasion to revisit this question in 2007.

In the case, immigration petitioner Vatyan, a citizen of Armenia, sought asylum in the United States. During his asylum hearing, he tried to introduce documents he claimed were issued by the Armenian government. The documents included a letter from the government noting the death of the petitioner’s son and that the government declined to investigate its causes; a 1999 death certificate of his son; and a 2000 letter from the state that certified the petitioner’s imprisonment in early 2000. These documents were submitted in an effort to show injustices suffered at the hands of the Armenian government. Vatyan v. Mukasey, 508 F.3d at 1181.

The Immigration judge declined to admit the documents because they lacked a Armenian government certification of authenticity. The petitioner sought to authenticate the documents through his own testimony, but the immigration judge would not accept his testimony in this regard, “reiterat[ing] his ruling that the petitioner’s own testimony regarding chain of custody could not authenticate the documents, and thus the documents were inadmissible.” Vatyan v. Mukasey, 508 F.3d at 1181.

After the petitioner’s immigration hearing, the judge denied the petitioner relief. The judge did not consider his documentary evidence because it was not properly authenticated. Vatyan v. Mukasey, 508 F.3d at 1182 n.1] After exhausting an unavailing appeal to the Board of Immigration Appeals (BIA), the petitioner sought review by the circuit of 8 C.F.R. § 287.6. That regulation provides for:

  1. The authentication of certain foreign official records by both the home country and the United States Foreign Service, and
  2. The authentication of other documents by the home country alone."
  3. Vatyan v. Mukasey, 508 F.3d at 1182.

    The immigration judge construed the regulation to provide the exclusive means by which the documents could be authenticated. In essence, the regulation requires that a document be authenticated by a government official.

    The circuit majority found that the immigration judge should have considered other means to established the authenticity of the documents the petitioner submitted in making a finding as to whether the petitioner should be granted asylum status. In a de novo review of the record, the circuit majority found that the petitioner should have been allowed to use “any recognized procedure for authentication of documents in general, including the procedures permitted under Federal Rule of Evidence 901” Because of this flexibility, the petitioner’s failure to “obtain government certification of a foreign public document’s authenticity [wa]s not necessarily a bar to admission of the document.” Vatyan v. Mukasey, 508 F.3d at 1182.

    The circuit majority noted that the immigration judge erred by requiring the petitioner “to produce some form of official certification as a mandatory pre-requisite to authenticating his proffered documents.” Vatyan v. Mukasey, 508 F.3d at 1182. Instead, the petitioner could use any means permissible under FRE 901 or 902. No particular method is preferred for authenticating a document.

    The circuit majority observed that the petitioner:

    “provided evidence that arguably could have supported authentication. A longtime resident of Armenia, Vatyan testified that he recognized the official stamps on the documents as stamps of the Armenian government. Moreover, he attempted to establish a chain of custody by explaining how the documents came into his possession…. Because we address the IJ’s interpretation of the law, however, what is critical is not whether the petitioner could provide additional evidence, but rather for what purpose the IJ considered the evidence that is already in the record. Vatyan’s testimony was relevant evidence of whether the proffered documents were authentic, and the IJ could and should have weighed that testimony rather than relying solely on Vatyan’s failure to produce officially certified copies.”
    Vatyan v. Mukasey, 508 F.3d at 1183.


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