BIA Decision Highlights Difficulty in Identifying Asylum Fraud

The 'wanted' flier from the 'Nageia Police Authority'; Nobody wants to be a sucker.

By Andrew R. Arthur on January 13, 2021

On January 8, the Board of Immigration Appeals (BIA) issued a decision in Matter of O-M-O-. Briefly, it held that immigration judges (IJs) can find that a facially questionable document is fraudulent without submitting it for forensic analysis, at least where the alien is given the opportunity to explain its defects. The decision, however, highlights the difficulties DHS must contend with in protecting the asylum system from fraud, and the issues IJs face when ruling on the more than half-million pending protection applications.

Before I begin, though, I must note that this case is not about asylum at all, but rather deferral of removal under the Convention Against Torture (CAT). CAT deferral is the last avenue of protection, because there are no bars to it being granted, which is likely why it was the protection of choice here.

The respondent is a native and citizen of Nigeria who entered as a nonimmigrant visitor (B-2) in May 2011, and adjusted his status to conditional permanent resident in October 2012.

In August 2014, he was convicted of conspiracy to commit mail, wire, and bank fraud in federal court, for which he was sentenced to 63 months imprisonment. That same day, he also received a federal conviction for aiding and abetting aggravated identity theft, for which he received an additional 24 months.

DHS terminated his conditional permanent residence in June 2017, effective back to October 2014, and he was placed into removal proceedings.

The ostensible charge was that the respondent was removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), as an alien convicted of an aggravated felony as defined in section 101(a)(43)(M)(i) of the INA — a fraud conviction in which the loss or potential loss was $10,000 or more. I say "ostensible" because the specific ground is not stated, but the conviction fits the fraud bill, and the BIA explicitly notes that the loss or potential loss was $10,000 or more.

In any event, the respondent conceded removability and sought protection from removal. As noted, the respondent did not actually seek asylum (the aggravated felony charge would have been a bar), but instead sought CAT deferral.

The key takeaway from Matter of O-M-O- applies to any protection under the INA and regulations, however, be it asylum, statutory withholding, or CAT. Each is premised on a claim that something bad has happened or will happen to an applicant if returned home. That requires proof of country conditions abroad, as well as (usually) evidence specific to the applicant that the government will try to mistreat the applicant if returned.

This imposes an unusual burden on the applicant and DHS, as well as — as this case demonstrates — the court. There is a saying in immigration law that "persecutors do not provide affidavits", meaning that the applicant is often limited in the extrinsic (that is, non-testimonial) evidence that he or she can present.

DHS (and its ICE attorneys, who represent the government in immigration court) are likewise often limited in the evidence that they can provide, absent an expensive in-country investigation (for which DHS lacks the resources, except in highly unusual cases).

Each party can go on the internet to find source materials to support their cases. The INA makes clear, however, that an applicant's credible testimony alone is sufficient to support his or her burden of proof — with one exception. If the IJ finds that there is corroborating evidence that is available to the applicant, the applicant must present that information or prove that it is not actually available.

All of which brings me back to Matter of O-B-O-. The respondent claimed that while he was a student in Nigeria, he joined the Committee for Defense of Human Rights ("CDHR"). In this capacity, he and others met with officials in the Oyo State's education ministry, seeking more education funding and better conditions for students and teachers. Because of that activism, he alleged, he was detained, interrogated, and physically mistreated by the Nigerian State Secret Service twice, in 2005 and 2010.

In support of his CAT application, he presented a December 2009 letter, purportedly issued by the Oyo State commissioner of education, and a "wanted" flier from the police. Those documents were key to the IJ's and BIA's decisions.

With respect to the 2009 letter, ICE confronted the respondent in court with the fact that the person who allegedly had signed that letter did not become Oyo State commissioner of education until November 2010 (a professor held the position during the period the letter was allegedly written).

To establish this fact, ICE presented a printout from the Oyo State government listing its commissioners of education and their periods of service, as well as the professor's curriculum vitae from his own website. These revealed that that professor served as commissioner from April 2009 to October 2010. It also submitted a newspaper article from November 2010, announcing the appointment of the new commissioner — the person who purportedly signed the 2009 letter.

The respondent responded with an affidavit supposedly from the statistics officer at the education ministry explaining that the professor was really serving during the period in question as an understudy to the minister of special duties (the professor subsequently headed that ministry), and that the signatory of the 2009 letter was assigned the duties of the commissioner of education during the period in question.

The problem, the BIA held, was that there was no proof that the affiant was from the statistics officer, or that he served in that job nine years earlier or otherwise would have been privy to these facts, such that he would be a reliable source. And the November 2010 newspaper article (which was apparently unrebutted) stated that the signatory of the 2009 letter had been "Commissioner for Industries, Applied Science [and] Technology" prior to his appointment.

The "wanted" flier was problematic on its face. In it, "Nigeria" was misspelled (as "Nageia Police Authority"), and the signature and the text of that flier were printed over the seal. Needless to say, documents are generally authenticated by a seal after they have been prepared. The IJ found that it appeared "as if the flier was printed on paper with the seal and signature already on it instead of the flier being stamped with the seal and signed after it was created", and was therefore fabricated.

You would assume that the submission of a facially invalid (and misspelled) "official" document would have been the end of the matter. You would have assumed wrongly, as reviewing federal courts have in the past rejected IJ assessments of the validity of facially questionable documents as "speculative", particularly where the applicant's testimony is otherwise credible.

I will admit that IJs are not credentialed forensic document experts. And ICE does have a Forensic Document Laboratory, to which such documents could be submitted (although to say it is overworked would be an understatement).

But the fact is that IJs see various forms of documents from all around the world regularly in the course of their jobs. And some errors in documents are so apparent that you hardly need credentials to spot them — as in this case. Fortunately, as the BIA found in Matter of O-M-O-: "Courts have long recognized that Immigration Judges may find that documents are not genuine if they contain 'hallmarks of fraud,' which include misspellings, overwriting, incorrect information, and alterations."

The IJ actually gave the respondent the opportunity to explain these discrepancies in briefs that were filed with the court after the hearing. Counsel for respondent asserted therein that "Nigerians commonly call Nigeria 'Nageia' and that signatories generally sign what is already printed."

Statements of counsel, however, are not evidence, and the respondent apparently offered no extrinsic evidence to prove either of these points. Nor did the respondent explain why this colloquialism would appear on an allegedly official document.

The IJ found that the December 2009 letter was fraudulent and falsified, that the "wanted" flier was falsified, and that these documents were submitted to support key aspects of the respondent's CAT claim. She also evaluated the respondent's assertion that members of CDHR were persecuted, and found it inconsistent with an affidavit from respondent's own expert. Finally, the IJ noted that the respondent was in court because he had fraud convictions, which called his credibility into question from the get-go.

Given these facts, the IJ found that the respondent had failed to establish his eligibility for CAT deferral, denied his application, and ordered him removed.

He appealed to the BIA, which (appropriately) dismissed the respondent's appeal. In the course of that, and to address the issues above, that decision was issued as precedent, meaning that it is binding on the nation's 520 IJs, and is the law everywhere in all federal circuits absent contrary circuit precedent. That said, the process sanctioned by the BIA of assessing document fraud is usually more art than science.

So, why is Matter of O-M-O- important?

Through November, there were 1,273,885 cases pending before those 520 IJs. As of June 30, according to the State Department, 549,724 of those cases (more than 43 percent) were asylum claims (a number that has likely increased in the last six months). That averages out to more than 1,050 asylum claims per IJ.

As Matter of O-M-O- and the foregoing analysis shows, however, adjudication of those claims is often a difficult process, and one reliant on assessing the credibility of what is often self-serving testimony and review of what are frequently unfamiliar documents prepared in a foreign country (or perhaps closer to home in the case of fraud).

Plus, underlying almost all asylum claims is the idea that the home government is corrupt. If true, obtaining fraudulent — but facially valid — documents is just a matter of connections, time, and money.

Finally, there is the fact that documentary practices in many of those countries leave much to be desired (one of the key reasons for the much-derided and largely misunderstood Presidential Proclamation 9645 — the so-called "travel" or "Muslim" ban).

Even in the United States, official documents can be issued by thousands of government authorities, and the same is true abroad. Record-keeping generally goes downhill the further you get from the central government (with exceptions), which is especially problematic in a country where record-keeping is not that great to begin with. Imagine how difficult it would be for ICE to verify the validity of an 11-year-old document issued in a foreign locality, as in this case.

The BIA held:

The immigration court system has no more solemn duty than to provide refuge to those facing persecution or torture in their home countries, consistent with the immigration laws. However, "truthful testimony and disclosures are critical to the effective operation of the immigration court system." [Internal brackets omitted.]

Both statements are beyond cavil. Even absent our international obligations, the protection of foreign nationals from persecution has been at the heart of our nation since before its founding. But fraudulent claims not only slow the adjudication of meritorious ones, they also cast a pall over the entire concept of refuge.

We are likely the most generous nation — both as a political entity and as individuals — on the face of the earth and in the history of man. Nobody wants to be played for a sucker, though.

Fortunately, the BIA has made the job of those IJs in denying fraudulent claims easier, by allowing them to use common sense in the process — assuming the circuit courts do not improperly second-guess those factual determinations.