Khan v. INS: 9th Circuit Overturns Asylum Denial Based on Lack of Authenticated Documents

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

KHAN V. INS: 9TH CIRCUIT OVERTURNS ASYLUM DENIAL BASED ON LACK OF AUTHENTICATED DOCUMENTS
Immigrants' Rights Update, Vol. 15, No. 2, Mar. 29, 2001

In a per curiam decision, the Ninth Circuit Court of Appeals has reversed and remanded an asylum denial that was based on the fact that the government documents the asylum applicant presented as evidence that he had been persecuted were not authenticated by an officer of the United States Foreign Service. The court ruled that because consular certification is not the sole means of authenticating documents that are offered as corroborating evidence in an immigration proceeding, the immigration judge and the Board of Immigration Appeals erred when they excluded from evidence official records that lacked such certification.

The petitioner in the case, a national of Bangladesh named Duke Khan, claims that he was persecuted in his home country on account of his political opinion. According to Khan, he was arrested four times, the first arrest leading to a seven-month confinement, during which he was severely beaten. At his hearing, Khan attempted to introduce official records documenting his arrest and detention. However, the IJ refused to admit them because they had not been properly authenticated pursuant to 8 C.F.R. section 287.6(b). That regulation requires that a U.S. Foreign Service officer have certified as authentic a foreign official record that is offered as corroborating evidence in an immigration proceeding. Having excluded from evidence the documents Khan offered, the IJ denied Khan's asylum application, based in part on a lack of corroborating evidence in support of his claims. In denying Khan's appeal, the BIA adopted the IJ's reasoning, whereupon Khan appealed to the Ninth Circuit.

Relying on case precedent, the Ninth Circuit held that while 8 C.F.R. section 287.6(b) provides for one method of authenticating documents, documents may be authenticated by any "recognized procedure," including any of those provided for in the Federal Rules of Civil Procedure. According to the court, "The procedure specified in '8 C.F.R. § 287.6 provides one, but not the exclusive, method' for authenticating documents. Iran v. INS, 656 F.2d 469, 472 n.8 (9th Cir. 1981); Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir. 1978)." Since the excluded records would have corroborated Khan's testimony and the denial of his application was based in part on a lack of corroborating evidence, the appellate court reversed the denial and remanded the case.

Khan v. INS, No. 99-71062 (9th Cir. Jan. 26, 2001).