In considering the admissibility of a foreign government website in an asylum case, Seventh Circuit notes that a foreign government website was “presumptively authentic” since a document on a the site from China could “be verified by visiting the website itself,” in Chen v. Holder, _ F.3d _ (7th Cir. May 9, 2013) (No. 12-2563)
The Federal Evidence Blog has previously noted the issue of admitting evidence from a website. One method involves judicial notice. See, e.g., Circuit Takes Judicial Notice Of Federal Agency Website Records ; Circuit Takes Judicial Notice Of "Facts" On CDC Web-Site. The Seventh Circuit recently considered the issue of authenticating a foreign government website.
In the case, a Chinese citizen and mother of two boys petitioned for asylum contending that she was "likely to be forcibly sterilized if she returns to China" based on the government's "one child policy." The Board of Immigration Appeals affirmed the denial of her petition by the immigration judge. The Board disregarded a number of materials from China which were submitted in support of the petition, including web site information, as inadmissible as unauthenticated.
The Seventh Circuit reversed and was particularly critical of the Board's limited view of authentication. As the circuit explained:
The Board gave no weight to communications from the local authorities, on the ground that the communications had not been authenticated and might
therefore be forgeries.... The Board has a pinched conception of “authentication.” Obviously a document must be authentic rather than a forgery to be admissible in evidence. But “documents may be authenticated in immigration proceedings through any recognized procedure”. Some of the recognized procedures are set forth in Article IX of the Federal Rules of Evidence, where we read that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). The Board disregards these authorities and even imagines that the only method of authenticating a foreign official document is a certification procedure, either the one set forth in Fed. R. Evid 902(3), or the one in the Board’s own regulations, 8 C.F.R. §§ 287.6(b), 1287.6(b) (these are identical regulations, the first applicable to proceedings before the Board, the second to proceedings before immigration judges). It isn’t the only path to admissibility. The path laid out in Rule 902(3), which requires certification by U.S. or foreign diplomatic officials, is a form of what is called “self-authentication,” which is an alternative to authentication by evidence, not a form, let alone a mandatory form, of authentication. (Rule 902 is captioned “Evidence That Is Self-Authenticating.”).
Chen, _ F.3d at _.
Among other documents that the Board failed to authenticate, the circuit noted that government website information should have been considered:
One of the documents that the Board refused to consider had been posted on a Fujian government website. That document (which we’ll call the “Robert Lin” document), ... states that sterilization is mandatory for violators of the one-child policy, with exceptions that don’t apply to the petitioner. Population and Procreation Committee of Fujian Province, “Answer to Robert Lin’s Inquiry: ‘Family Planning Policy with Respect to People Returning to China from Overseas,’” May 6, 2008, www.fjjsw.gov.cn:8080/html/5/383/9626_200856322.html. (visited Apr. 19, 2013); cf. Population and Family Planning Regulation of Fujian Province (July 26, 2002), Articles 9-11, 39, 47.
A document posted on a government website is presumptively authentic if government sponsorship can be verified by visiting the website itself; and in this case it can be. See www.fjjsw.gov.cn:8080/html/5/383/9626_200856322.html (visited May 6, 2013). (gov.cn is “The Chinese Central Government’s Official Web Portal,” as explained in “The Central People’s Government of the People’s Republic of China,” http://english.gov.cn/ (visited May 6, 2013).) We don’t agree that all the information available on the Internet is “voodoo.” St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999). As far as we can tell, the Board ignored the Robert Lin document—and that’s a problem. “We cannot sustain the exclusion of . . . documents without an explanation of the basis for the ruling.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). The Robert Lin document cuts the ground out from under what the Board called the “key aspect of this case”—that because Chen’s children were born abroad, she is in no danger of being forced to undergo sterilization.
The Robert Lin document that the Board unaccountably ignored is only one piece of contrary evidence. Article 5 of the Nationality Law of the People’s Republic of China states that “any person born abroad whose parents are both Chinese nationals and one of whose parents is a Chinese national shall have Chinese nationality.” www.china.org.cn/english/LivinginChina/184710.htm (visited May 6, 2013). And the website of the Chinese consulate in New York states that “if one or two of his/her parents are foreign citizens or have foreign permanent residence right (e.g. U.S. permanent resident card), the child shall apply for a Chinese visa before travelling to China. If both of his/her parents are Chinese citizens and have no foreign permanent residence right (e.g. U.S. permanent resident card), the child shall apply for a Chinese travel document before travelling to China,” www.nyconsulate.prchina.org/eng/lsyw/lszjx/sbqz/cccbu/ (visited May 6, 2013). The parents in this case are not permanent residents of the United States. All that the children would need in order to return to China are travel documents, which are what Chinese citizens require to enter China; visas are for foreigners.
Chen, _ F.3d at _ (citations omitted). The Seventh Circuit reversed the denial of the petition for asylum and remanded the case.
The Chen case presents an interesting example of how government information in another country may be authenticated and considered. At least for government website information, the Seventh Circuit is willing to extend a presumption of authentication. The case did not suggest this presumption would be applied to information from non-government sources. In an earlier decision, the circuit has not afforded a presumption of authentication to a web post. See United States v. Jackson, 208 F.3d 633 (7th Cir.), cert. denied, 531 U.S. 973 (2000); see also Limits To Relying On Internet Materials And Information In Court (Part III).
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