Monday, March 15, 2010
It is well established that "[t]he Federal Rules of Evidence do not apply in immigration proceedings." Liu v. Attorney General of the United States, 2010 WL 772166 (3rd Cir. 2010). That said, "evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process." Id. And in its recent opinion in Liu, the Third Circuit found that the results of an investigation of asylum documents satisfied these concerns.
Yong Ho Liu, a native and citizen of the People's Republic of China, entered the United States at or near Miami, Florida, in September 2002, without a valid immigrant visa, and applied for entry as an immigrant. The Government charged him as removable. Liu conceded the charge, but applied for asylum, withholding, and protection under the Convention Against Torture...based on his and his wife's experiences with China's population control policies.
Specifically, Liu claimed that his wife was subjected to a forced abortion when she was pregnant and forced sterilization. However,
when the Government investigated the documents that Liu submitted in support of his claim, the birth control operation certificate was found to be counterfeit (a separately submitted fine receipt was found to be authentic, but Liu's payment of an unplanned birth fine alone does not amount to past persecution in this case). The certificate had a counterfeit stamp and bore the name of a doctor never employed by the hospital. (Moreover, the certificate, even if it had been found to be authentic, also only supports a claim that Liu's wife was sterilized; abortion, another option on the document, was not marked off.)
Liu claimed that the results of this investigation were hearsay and should not have been considered as part of his application for asylum. The Third Circuit noted that the Federal Rules of Evidence do not apply in immigration proceedings but that evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process. The court then found that the subject evidence satisfied this test because
the petitioner had ample time to consider the results of the investigation; the report was presented to Liu almost two years in advance of his hearing. Second,...the investigator directly communicated with the local officials who provided information for the report, and the investigator explained how she conducted the inquiry. Through her involvement, she could evaluate the credibility of the immediately preceding declarants....In short, under the circumstances of this case, there were sufficient indicia of reliability and trustworthiness such that Liu's due process rights were not violated by the admission of the report into evidence or the agency's reliance on it.