BIA Holds That An Immigration Judge May Find A Document To Be Fraudulent Without Forensic Analysis Or Other Expert Testimony Where The Document Contains Obvious Defects Or Readily Identifiable Hallmarks Or Fraud And The Party Submitting The Documents Is Given An Opportunity To Explain The Defects.
On January 8, 2021, the Board of Immigration Appeals (BIA or Board) dismissed Respondent’s appeal of a decision by the Immigration Judge (IJ) denying his application for deferral of removal pursuant to the Convention Against Torture (CAT). A lawful conditional resident, Respondent was convicted of conspiracy to commit mail, wire, and bank fraud and aiding and abetting aggravated identity theft (Federal crimes); his conditional resident status was then terminated and DHS placed Respondent into removal proceedings, based on the termination of his lawful conditional status, charging that his convictions were aggravated felonies and crimes involving moral turpitude (CIMTs).
Respondent applied for deferral of removal under CAT, testifying that while at college in Nigeria, he became active in a human rights committee that met with government officials to improve school conditions. This, he claimed, led to the Nigerian State Secret Service detaining, interrogating, and physically mistreating him twice over a 5-year period. On cross-examination by DHS, Respondent was questioned about the Commissioner for Education, whose signature was on a letter he submitted as part of his application; DHS evidence indicated that a different person was serving as Commissioner for Education at the time. Respondent was also asked how he got the “wanted” flyer he submitted into evidence and was given an opportunity to explain why “Nigeria” was misspelled and the signature and text were printed over a seal on the document. At the termination of the proceeding, the IJ had both parties submit closing statements and Respondent even offered additional rebuttal evidence, which was admitted into evidence and considered by the IJ.
The court found Respondent was not credible, concluding that he had not presented a valid claim or established eligibility for deferral of removal in his appeal. After reviewing the IJ’s factual and credibility findings on appeal to determine whether they were “clearly erroneous”, the BIA affirmed her adverse credibility finding.
The BIA initiated its analysis by noting that credibility findings must be based on the totality of the circumstances and all relevant factors, including demeanor, candor, responsiveness, inherent plausibility, and consistency in testifying; ommissions, inconsistent statements, contradictory evidence, and inherently improbable testimony, it stated, are “appropriate bases for making an adverse credibility determination.” Here, the IJ found Respondent’s credibility was substantially undermined by his submission of two documents she determined were fraudulent: 1) the wanted flier poster that spelled “Nigeria” as “Nageia” and 2) the letter purportedly signed by the Commissioner for Education, although the person who signed did not become Commissioner until 11 months later.
As to the flier, the IJ found the signature and text were printed over the document’s seal “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 stamped after it was created.” The Board stated that forensic evidence of fraud is not necessary where, as here, the document bore “readily identifiable indications of fraud.” Further courts have long recognized that an IJ may find a document not to be genuine if it contains “hallmarks of fraud,” such as misspellings, overwriting, incorrect information, or alterations. The BIA concluded that, in the instant matter, the IJ had properly relied on “obvious defects” to find that the flier was fraudulent and the arguments in Respondent’s brief, that Nigerians commonly call the country “Nageia” and that signatories generally sign what is already printed, are not evidence. Additionally, concluded the opinion, even if Respondent had shown that “Nageia” is a colloquialism, that did not establish the misspelling would be used in an official document.
As to the Commissioner for Education’s letter, DHS’s impeachment evidence showed that the individual who signed the December 2009 missive did not become the Commissioner until November 2010 and that “a professor held that position at the time of signing.” This was sufficient to show the letter was fabricated without the need for forensic analysis. At his merits hearing, Respondent submitted an affidavit as rebuttal evidence, purporting to be from the statistics officer in the state Ministry of Education, explaining that “the professor was on assignment to understudy the Miniter of Special Duties in 2009, and…the person who signed the letter was assigned to the office of the Commissioner for Education and was only publicly announced as the Commissioner in 2010, when the professor was confirmed as the Miniter for Special Duties.” The BIA found that the affidavit lacked a reliable form of identification verifying that the affiant was, in fact, the statistics officer and did not indicate whether he had been in that position 9 years earlier or identify the source of his information. Respondent had thus failed to provide a convincing explanation for the “obvious inconsistencies” or sufficient rebuttal evidence; the IJ’s finding that the fraudulent documents were falsified was therefore not clearly erroneous.
In addition to the fabricated evidence, the IJ considered Respondent’s claim that members of the human rights committee were persecuted but she found this inconsistent with an expert’s affidavit also submitted by the Respondent. She also believed that his convictions for “crimes involving fraud” further undermined his credibility. Nor did Respondent meet his burden to prove eligibility for deferral under CAT, held the decision, as the underlying basis for the claim necessarily lacked credibility. As such, the appeal was dismissed. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021).