Monday, March 17, 2008
The Third Circuit's recent opinion in Yusupov v. Attorney General of U.S., 2008 WL 681851 (3rd Cir. 2008), makes it at least the second federal appellate court to find that the Federal Rules of Evidence do not apply to Immigration and Nationalty Act (INA) proceedings. In Yusupov, Bekhzod Bakhtiyarovich Yusupov was a Uzbek national who claimed to be an "independent Muslim;" he claimed that he attended the mosque of Imam Obidkhon Nazarov, whose followers, he asserted, had been subject to continued persecution by the Uzbeck government. Yusupov claimed that he left Uzbekistan to pursue educational opportunities in America and refused to return to his former country for fear of persecution. Yusupov, however, violated the terms of his student visa when, inter alia, he never went to school and instead obtained a job at a factory, falsely claiming to be a U.S. citizen on a federal Employment Eligibility Verification Form I-9.
Yusupov conceded that he was removable for violating the terms of his student visa, but he applied for asylum, withholding of removal, and United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) relief. An alien unlawfully in this country may apply for "withholding of removal" under Immigration and Nationality Act (INA) § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), which prohibits removal if the Attorney General believes that the alien's life or freedom would be threatened in the country of removal. Eligibility for withholding of removal is erased, however, if “there are reasonable grounds to believe that the alien is a danger to the security of the United States."
Eventually, the Board of Immigration Appeals (BIA) found that there were such reasonable grounds based upon (1) a Uzbek extradition request and an Interpol warrant with allegations that Yusupov conspired with others to use violence, (2) the FBI's discovery of cached video files of speeches by bin Laden and others as well as of bombings in Chechnya, (3) a "jihad" e-mail sent to Yusupov's roommate, (4) the fact that Yusupov entered the United States on a student visa but never attended school, and (5) Yusupov's 2003 conviction for making a false statement on a federal form. Nevertheless, the BIA found that that Yusupov would face persecution and/or torture upon return to Uzbekistan, and thus granted the more limited remedy of deferral of removal under the CAT.
In a petition for review, Yusupov argued, inter alia, that the BIA erred in applying the Attorney General's interpretation of the national security exception, which is that the "reasonable grounds" standard is satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the security of this country. Yusupov argued instead that the BIA must rely upon evidence admissible under the Federal Rules of Evidence. The Third Circuit disagreed, finding that Yusupov "failed to point to anything in the INA that incorporates the Rules of Evidence. Rather, the INA imposes an implicit requirement that the evidence be reliable enough to allow a reasonable person to decide that the alien poses a national security risk." Instead, the Third Circuit agreed with Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990), where the First Circuit held that the immigration context is different from that of a courtroom, making the Federal Rules of Evidence inapplicable.
I agree with the Third Circuit's specific ruling, but it should be noted that the Federal Rules of Evidence have some applicability in INA cases. Federal Rule of Evidence 1101(e) states that in certain proceedings, the Rules "apply to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Supreme Court pursuant to statutory authority." One listed proceeding is "naturalization and revocation of naturalization under sections 310 - 318 of the Immigration and Nationality Act (8 U.S.C. 1421 - 1429)." These sections were not at play in Yusupov, making the Rules inapplicable, but, as indicated in the Rules, they can play a role in other INA proceedings.