THE BIA ADOPTS AN ORIGINAL NOVEL DOCTRINE OF JURISPRUDENCE – TRUTHINESS

This week the Board of Immigration Appeals (BIA) adopted a novel and original jurisprudential doctrine – truthiness. The Merriam Webster Dictionary defines “truthiness” as “a truthful or seemingly truthful quality that is claimed for something not because of supporting facts or evidence but because of a feeling that it is true or a desire for it to be true.” (I have always wanted to start a sentence with “The Merriam Webster Dictionary defines…” – dreams can come true). The BIA held that an immigration judge may find a document to be fraudulent without forensic analysis or other expert witness testimony. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021). To paraphrase Stephen Colbert ‘truth comes from the gut.’ And the ‘gut’ is what the BIA is suggesting that immigration judges rely on to adjudicate a case. You can watch Colbert define “truthiness” here. But do not despair, because as bad as this decision is (and it is bad) as practitioners, we can use this case to challenge sketchy I-213s and dodgy Notices to Appear.

Facts

O-M-O- is a native and citizen of Nigeria. In 2011, the United States government admitted him to the country on a visitor’s visa. In 2012, he adjusted status to conditional permanent residency. In 2014 a federal court convicted him of conspiracy to commit mail, wire, and bank fraud. The court sentenced him to 63 months of imprisonment. That same day that a court convicted him of aiding and abetting aggravated identity theft and sentenced him to 24 months of imprisonment. The case is not clear on whether it was the same court and merely different counts or a different case and a different court. But the BIA clarifies that the loss to the victims was greater than $10,000. It appears that a court or courts convicted Mr. O-M-O of two aggravated felonies (theft and fraud) and the BIA is definitely working on that assumption in their analysis.

In 2017 the Department of Homeland Security (DHS) terminated Mr. O-M-O-’s conditional resident status and backdated the termination to 2014. The decision does not discuss why DHS terminated his status. At any rate, DHS placed Mr. O-M-O- in removal proceedings and he applied for protection under the Convention Against Torture (CAT). The law states: “It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country where there are substantial grounds for believing the person would be in danger of being subjected to torture.*.*.*.” PL 105-277, § 2242(a). Because it is the policy of the United States not to send a person to a country where the government or a government agent might torture them, one might think that the BIA would use a different jurisprudential doctrine (other than truthiness) to adjudicate this case.

CAT Claim

Let’s get to Mr. O-M-O-’s CAT claim. Mr. O-M-O- testified that when he was attending college in Nigeria, he was active in the Committee for the Defense of Human Rights (CDHR). He testified that he, along with other members of the group met with government officials to try to increase funding for education. He claimed that in 2005 and again in 2010, the Nigerian State Secret Service detained him and tortured him because of his activism. According to the opinion, Mr. O-M-O- submitted at least two pieces of evidence in support of his CAT claim that the Immigration Judge [IJ] found to be suspect: a letter from the Commissioner for Education dated December 2009; and a “wanted” flier. It is unclear if he submitted any other evidence. But what is clear, is that these two pieces of evidence troubled the IJ.

Letter from the Commissioner for Education

Mr. O-M-O- submitted a letter from the Commissioner for Education that was dated December 2009. DHS submitted impeachment evidence showing that the person serving as the Commissioner for Education in December 2009 did not have the same name as the person who signed the letter. The opinion states that DHS provided reliable impeachment evidence that the person who signed the letter did not become the Commissioner for Education until November 2010 – nearly a year later. To explain the discrepancy, Mr. O-M-O- submitted an affidavit from a statistics officer at the Ministry of Education explaining that the person who signed the letter was assigned to the Office of the Commissioner for Education and was publicly announced as the Commissioner in 2010. Even so, the BIA noted “[t]he affidavit was not accompanied by a reliable form of identification to verify that the affiant is, in fact, the statistics officer. Nor does it indicate whether he was the statistics officer 9 years earlier, during the transition, or identify the source for his information.” Matter of O-M-O-, 28 I&N Dec. at 197. (I guess truthiness, only works where DHS is presenting evidence; or maybe this affidavit didn’t feel truthy). The IJ and the BIA found the letter to be unreliable.

The Wanted Flier

Mr. O-M-O- submitted a “wanted” flier entitled “Nageia Police Authority.” The IJ found that the “wanted” flier was fabricated. The BIA held that the IJ “is qualified to make that judgment because the indicia of the fraud, namely the misspelling of “Nigeria” and the “peculiar setting of the text, signature, and seal,” are readily apparent on the face of the document.” Matter of O-M-O-, 28 I&N Dec. at 193. According to the opinion, Mr. O-M-O- did not submit any evidence to support the validity of this document. His counsel argued that Nigerians commonly call Nigeria “Nageia” and that in Nigeria signatories generally sign what is already printed. Matter of O-M-O-, 28 I&N Dec. at 195. The BIA noted that attorney arguments are not evidence and that Mr. O-M-O- did not provide any rebuttal evidence about the “wanted” flier. The BIA did not give this argument any weight.

Legal Analysis

The BIA properly starts its analysis by noting that credibility findings follow a totality of the circumstances determination and cites the statute. INA § 240(c)(4)(C). The IJ found that Mr. O-M-O- undermined his credibility by submitting two falsified documents. The BIA noted “[i]n some circumstances, forensic analysis or other expert testimony may be needed to support an Immigration Judge’s determination that a document is fraudulent.” Matter of O-M-O-, 28 I&N Dec. at 194. For example, an expert opinion was necessary, where the IJ found that a death certificate was fraudulent based on the IJ’s own handwriting analysis. “The IJ’s conclusion, on this basis, that Ram’s death certificate was a forgery was nothing more than conjecture unsupported by the evidence in the record. Thus, we are compelled to reject it.” Kumar v. Gonzales, 444 F.3d 1043, 1050-51 (9th Cir. 2006). But the BIA noted that “forensic evidence of fraud is not necessary where, as here, the documents bore readily identifiable indications of fraud.” Onsongo v. Gonzales, 457 F.3d 849, 854 (8th Cir. 2006) cited with approval Matter of O-M-O-, 28 I&N Dec. at 194.

Now let’s just stop here for a second and take a minute. First, it is unclear from the record who created the “wanted” flier. Was it the Nigerian Federal government? Was it a state government within Nigeria? A municipal government? Was it a paramilitary group? Was it someone with a computer and printer who wanted to kill Mr. O-M-O-? Is it possible that whoever and whatever organization that created the document regularly uses the term “Nageia” instead of “Nigeria”? Is Nageia a commonly used nickname for Nigeria? I honestly do not know the answers and the opinion does not answer any of these questions. But where a person is claiming that their government may torture or kill them in their home country, at a minimum, our government should require that a forensic expert determine that the evidence is fraudulent before they remove the person. I know from personal experience, that the U.S. Consulates all over the world have experts that conduct forensic analyses of documents from the country where the Consulates are located. In fact, the BIA notes in a footnote that the IJ “could have required DHS to seek forensic analysis or provide expert testimony.” Matter of O-M-O-, 28 I&N Dec. at 195 n.3. With the stakes this high, one would have thought the IJ and the BIA would have required someone to provide a forensic analysis of the suspect documents.

Once the BIA determined that Mr. O-M-O- submitted two fraudulent documents they determined that he compromised his entire claim. The IJ found that Mr. O-M-O-’s own expert witness’s affidavit did not support the claim that the Nigerian government persecuted members of CDHR. Plus, the IJ found that the convictions for fraud and identity theft undermined Mr. O-M-O-’s credibility. The BIA affirmed the decision to deny Mr. O-M-O-’s application for CAT relief and dismissed the case.

Lest everyone despair, I believe at times we can use this case to our advantage. For example, where DHS submits a dodgy I-213 or a sketchy NTA we can argue that the IJ should find the document fraudulent without requiring our clients to get a forensic analysis. I realize it’s a dim glimmer of hope. That said we must challenge these terrible decisions from the BIA. We cannot allow for a doctrinal jurisprudence of “truthiness” to gain hold in immigration court.

Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021).