                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2003

Ezeagwuna v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket 01-3294




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                      PRECEDENTIAL

                                Filed April 14, 2003

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                No. 01-3294


     GLORY OBIANUJU EZEAGWUNA,
                         Petitioner
                     v.
 JOHN ASHCROFT, ATTORNEY GENERAL
       OF THE UNITED STATES,
                   Respondent

On Petition for Review from an Order of the
       Board of Immigration Appeals
      (INS No. 0090-1:A76 142 746)

           Argued April 25, 2002
 Panel Rehearing Granted on April 14, 2003
Submitted After Grant of Panel Rehearing on
               April 14, 2003
Before: BECKER, Chief Judge, SCIRICA, and
         RENDELL, Circuit Judges.

           (Filed: April 14, 2003)

              Sidney S. Rosdeitcher, Esq.
              Paul, Weiss, Rifkind, Wharton
               & Garrison
              1285 Avenue of the Americas
              New York, NY 10019-6084
              Counsel for Petitioner
                Glory Obianuju Ezeagwuna
                            2


                     Michael T. Dougherty, Esq.
                     United States Department of Justice
                     Office of Immigration Litigation
                     1331 Pennsylvania Avenue, N.W.
                     Washington, DC 20530
                     Richard M. Evans, Esq.
                     Terri J. Scadron, Esq.
                     John M. McAdams, Jr., Esq.
                     Donald E. Keener, Esq.
                     Francis W. Fraser, Esq.
                     United States Department of Justice
                     Office of Immigration Litigation
                     P.O. Box 878
                     Ben Franklin Station
                     Washington, DC 20044
                     Brian G. Slocum, Esq.
                     United States Department of Justice
                     1331 Pennsylvania Avenue, N.W.
                     Washington, DC 20530
                     Counsel for Respondent
                       John Ashcroft, Attorney General
                       of the United States
                     James C. La Forge, Esq.
                     Chadbourne & Parke
                     539 Valley Road
                     Upper Montclair, NJ 07043
                     Counsel for Amicus-Appellant
                       Lawyers Committee for Human
                       Rights


               OPINION OF THE COURT

RENDELL, Circuit Judge:
  Glory Obianuju Ezeagwuna (“Ms. Obianuju”), a citizen of
Cameroon, seeks political asylum and withholding of
deportation. She claims to have been persecuted because of
her membership in two political organizations in Cameroon
that represent the interests of the English-speaking
minority population. The Immigration Judge (“IJ”) denied
                             3


her application, and the Board of Immigration Appeals
(“BIA” or “Board”) dismissed her appeal. The BIA also
denied Ms. Obianuju’s motion to supplement the record
with four additional pieces of evidence.
   The BIA’s dismissal was based on a finding that Ms.
Obianuju had submitted fraudulent documents and
therefore was not credible. The BIA relied almost entirely on
a letter from the Department of State that contained the
conclusions of an investigation in Cameroon. In an original
opinion on appeal, we concluded that reliance on this letter
denied Ms. Obianuju her due process rights and
undermined the fundamental fairness of the administrative
process. See Ezeagwuna v. Ashcroft, 301 F.3d 116 (3d Cir.
2002). We also concluded that a reasonable factfinder
would be compelled to conclude that Ms. Obianuju was
persecuted because of her political opinions and faces a
clear probability of persecution if returned to Cameroon. We
then found Ms. Obianuju eligible for asylum and ordered
withholding of deportation, subject to the Attorney
General’s discretion. Because we viewed the record as
sufficient, we declined to consider whether the BIA abused
its discretion in refusing to reopen the record and remand
to the IJ for it to consider additional evidence proffered by
Ms. Obianuju.
   The Attorney General sought panel rehearing in light of
the Supreme Court’s opinion in INS v. Ventura, 123 S. Ct.
353 (2002), urging that the BIA, and not this Court, should
make the determination as to whether, based on the record
absent the documents we found unreliable, asylum and
withholding of deportation should be granted. We agreed
with this view and vacated our prior opinion and judgment.
In so doing, while the analysis in our amended opinion
remains unchanged regarding the documents that we found
untrustworthy, we will now also address whether the BIA
should have permitted Ms. Obianuju to supplement the
record with the proffered additional evidence. Because the
IJ has not had the opportunity to determine Ms. Obianuju’s
eligibility for asylum based on the appropriate evidence, we
will grant the petition for review, and remand to the BIA for
further proceedings consistent with this opinion.
                             4


                             I.
A.   Background
  Glory Obianuju Ezeagwuna, a citizen of Cameroon, seeks
asylum in the United States. Prior to her alleged
persecution she lived in Bamenda, a city in the Northwest
Province of Cameroon. She is a member of the English-
speaking minority population, French being the language of
the majority. She claims to have been persecuted because
of her political opinion, and she points to mistreatment
resulting from her membership in two political groups
representing the interests of this Anglophone population —
the Social Democratic Front (“SDF ”) and the Southern
Cameroons National Council (“SCNC”).
   Ms. Obianuju provided a detailed account of her abuse in
affidavits, testimony, and corroborating documents.
Following is a summary of the account presented by Ms.
Obianuju in her affidavit in support of her application for
asylum.
   Ms. Obianuju’s parents and other family members were
very active members of SDF. In 1994, Ms. Obianuju began
participating in SDF activities, and in 1996, at the age of
eighteen, she became an official member of SDF. Ms.
Obianuju tells of three times that she was jailed and
physically abused because of her political activism. The
first incident took place in 1996 when she joined other SDF
members in protesting the appointment of Francis Faie
Yengo as the leader of the Bamenda Urban Council.
Government police sprayed tear gas on the protestors and
arrested them. Ms. Obianuju claims that she was then
dragged through the gravel on her knees and taken by force
to Bamenda Central Prison where she was beaten on the
soles of her feet and on her knees with police sticks. Ms.
Obianuju’s parents retained an attorney, Robert Nsoh Fon,
to obtain her release from prison and on the fourth day she
was released on bail. Upon her release she visited a doctor,
Dr. Nji, who applied ointment to her hands and knees, and
provided her with painkillers.
  Next, in January 1997, Ms. Obianuju and other students
marched to protest a substantial fee increase for taking a
university entrance exam only imposed in the English-
                             5


speaking areas of Cameroon. Ms. Obianuju marched at the
front of the group. The government police began beating the
students with their belts and spraying tear gas in an effort
to disperse the students. She was kicked in the stomach
and then dragged by an officer through the gravel. In
prison, she was further hit and kicked by the officers. Her
attorney was able to negotiate her release from prison. After
her release, Ms. Obianuju left the SDF and became a
member of the SCNC. Although the SCNC did not hold
demonstrations, its goals were otherwise similar to the
SDF.
  In March and April 1997 there were a series of attacks on
police and civilian establishments in Bamenda. According
to Ms. Obianuju, the government blamed the SCNC for the
attacks, but she denies any involvement. Ms. Obianuju
claims that a few weeks after the attacks the police entered
her home at 10 p.m. while she was asleep and physically
removed her from her home without providing any
explanation. During the course of the family’s struggle to
protect her, a police officer cut her mother’s hand with a
knife. Ms. Obianuju was taken to prison and placed in a
cell with other SCNC members where she remained for six
days. During the first day she and the others were beaten
with police sticks on the soles of their feet and on their
knees. During the second day an officer removed her from
her cell and attempted to rape her, but was stopped by
another officer. He bit her on the chest and scratched her
back with his nails, leaving scars. She was repeatedly
kicked in the stomach and hit across her face during the
remainder of her detention. When her lawyer sought her
release, he was told that she was being imprisoned for the
March and April attacks mentioned above. On April 30, she
was released upon payment of 1,500,000 francs.
  Upon release she was taken to a doctor, because she was
discharging blood. She subsequently became more ill and
underwent an emergency appendectomy because her
appendix “had been destroyed” by the abuse she suffered.
She remained in the hospital for thirty days thereafter.
  On July 31, 1997, Ms. Obianuju’s attorney informed her
that the police had a warrant for her arrest claiming that
she had been improperly released in April. She therefore
                                    6


traveled to Bafut, a city in the Northwest province, to stay
with a family friend, George Moma. She remained in hiding
there indoors until December 1998. She then obtained a
fake passport in the name of George Moma’s sister,
Francisca Biwie Moma. She used this passport to fly to
Jamaica in February 1999. She stayed with a series of new
acquaintances in Jamaica for three weeks. At that time her
return trip was scheduled, and she requested asylum from
the Jamaican immigration office, but they denied her
application and attempted to take her into custody. She
again went into hiding. A Jamaican provided her with a
fake English passport in the name of Rebecca Channon,
and she left on a flight to Newark, New Jersey on August
13, 1999. Upon her arrival at Newark International Airport,
United States immigration officers determined that the
passport was false, and upon questioning by the INS, Ms.
Obianuju sought political asylum. Ms. Obianuju was
deemed inadmissible by the INS under sections
212(a)(6)(C)(i)1 and 212(a)(7)(A)(i)(I)2 of the INA (“Immigration
and Nationality Act”) because she entered the country with
invalid documents, and she was detained and has remained
in detention ever since. She seeks political asylum and
withholding of deportation, and, in the alternative, relief
under the Convention Against Torture (“CAT”).3 She claims
that Cameroonian authorities continue to look for her and
believes that her well-being and even her life would be in
jeopardy if she returned to Cameroon.
B.    Proceedings Before the INS
     Ms. Obianuju first appeared before the Immigration

1. “Any alien who, by fraud or willfully misrepresenting a material fact,
seeks to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit
provided under this chapter is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i).
2. A person is inadmissible if she “is not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing identification
card, or other valid entry document required by this chapter. . . .” 8
U.S.C. § 1182(a)(7)(A)(i)(I).
3. As the relief provided by the CAT is subsumed by the relief provided
by the grants of asylum and withholding of deportation, we will not
address whether she qualifies for relief under the CAT.
                                   7


Judge (“IJ”) on September 2, 1999 pro se. She subsequently
obtained counsel, and a hearing on the merits was held
first on March 3, 2000 and continued on May 9, 2000. Ms.
Obianuju testified at great length and was cross-examined
by INS counsel, Irene Feldman. Ms. Obianuju submitted a
large number of corroborating documents, including
affidavits and declarations of family, friends, and SDF
members, SDF membership cards, and U.S. State
Department Country Reports. At the time of the hearing,
the IJ had before her 37 exhibits provided by Ms. Obianuju
and the INS. Dr. David S. Kang, a family medicine
practitioner who conducted a physical examination of Ms.
Obianuju on November 9, 1999, testified on her behalf. He
concluded that she was credible, in part because she did
not claim that every scar on her body resulted from torture.
Furthermore, the scars she claimed were caused by torture
were consistent with the acts she claimed caused them,
specifically, scars on her knees from being dragged through
the gravel, a scar on her chest from being bitten, and a
surgical scar on her abdomen resulting from her
appendectomy. Ms. Obianuju also moved to admit Dr.
Kang’s affidavit. At the close of this hearing the IJ said:
     I have spoken with, to both counsels. I need to, this
     matter has to be continued, of course, for the issuance
     of the oral decision. And of course Ms. Feldman is
     waiting response of the [forensic document laboratory]
     report regard, as to one document just recently
     submitted. Therefore, this hearing is adjourned for the
     26th of May, at 1 p.m. in the afternoon.4
  On June 7, 2000, during a continuance of the May 26
hearing, the INS provided a two-page letter from John
Larrea, Vice Consul of the Embassy of the United States in
Yaounde, Cameroon (the “Larrea letter”). The Larrea letter
sets forth in a summary fashion the results of an
investigation conducted into five documents submitted by

4. In support of her motion to reopen, Ms. Obianuju claims that this
statement by the IJ closed the record. We must disagree and find that
the record did not close until the IJ explicitly said so on September 21,
2000. This is further evidenced by the fact that both parties submitted
new evidence in support of motions after the May hearing.
                                  8


Ms. Obianuju: a medical certificate from her doctor in
Cameroon; the arrest warrant; an application for bail; an
affidavit by Ms. Obianuju’s father; and, an affidavit by her
attorney in Cameroon, Robert Nsoh Fon. The letter
concludes that each of these documents is fraudulent. A
copy of each document is attached to the Larrea letter with
notations allegedly made by government officials setting
forth why the document is believed to be fraudulent. No
investigative report is provided, nor is there any information
about the investigation or the investigator.
  In order to respond to the letter, on June 16, 2000, Ms.
Obianuju’s counsel requested a 30-day continuance. She
explained: “An additional 30 days would enable us to
address the allegations in the June 7, 2000 letter from the
United States Embassy concerning Ms. Obianuju’s asylum
application, and make any necessary motions with regard
to the findings in that letter.” The continuance was granted.
  On July 27, 2000, Ms. Obianuju filed a motion in limine
setting forth five reasons why the Larrea letter should be
excluded: 1) no foundation was laid for Larrea’s opinions, 2)
the letter’s admission would violate the due process
requirement of fundamental fairness; 3) its admission
would violate INS regulations prohibiting the disclosure of
asylum applications to third parties; 4) the admission of
evidence based on this type of investigation would frustrate
future asylum proceedings; and, 5) the letter was not
authenticated in accordance with INS regulations. As
support for the motion, Ms. Obianuju included a July 26,
2000 affidavit from Milton Krieger, a scholar of politics in
Cameroon [“first Krieger affidavit”].5 Dr. Krieger shared his
detailed knowledge of Cameroon, particularly regarding the
government’s persecution of SDF and SCNC members, the
U.S. Embassy’s limited knowledge of the political situation
in Bamenda, and the difficulty of authenticating documents
in Cameroon. Finally, he explained that Ms. Obianuju’s

5. Milton Krieger has spent many months in Cameroon studying its
political system. Since 1989 he has been to Cameroon four times and
stayed there each time for between four and ten months. He is the
author of African State and Society in the 1990s: Cameroon’s Political
Crossroads (Joseph Takougang co-author, 1998).
                                  9


account of what occurred was credible and shared his
opinion that if she returned there was “a significant
probability that Ms. Obianuju would be severely harassed,
beaten, tortured or possibly even killed.”
   On August 7, 2000, the INS moved for a continuance of
the hearing set for August 9 in order to obtain an original
of the Larrea Letter. On that very same day, August 7,
counsel for the INS obtained a letter from Marc J. Susser,
Director, Office of Country Reports and Asylum Affairs,
United States Department of State (the “Susser letter”). The
entire text of the Susser letter is set forth in the appendix
to this opinion. Susser explained in his opening paragraph:
“I am writing to forward the results of an investigation, by
a Foreign Service post, of documents presented in support
of the asylum application of [Glory Obianuju]. These
documents were forwarded to us by your office.” The Susser
letter is simply a restructured version of the Larrea letter,
utilizing almost the exact same language. Significantly,
however, the referenced documents are not attached to the
Susser letter.
  Although the Susser Letter is dated August 7, 2000, it
was not provided to the IJ or Ms. Obianuju’s counsel until
September 18, 2000, three days before the hearing date.6
On September 18, the INS sent a letter to the IJ as a
response to Ms. Obianuju’s motion in limine. In addition to
rebutting the arguments made in the motion in limine, the
INS provided the Susser letter “since [Ms. Obianuju] has
objected to the admissions of the letter from John Larrea.”
The INS contended:
     In an effort to provide Your Honor with an original
     letter, the Service respectfully submits the more recent
     Department of State letter in lieu of the prior
     submission. To date, the Service has not received the
     original copy of the Larrea Letter. Although the
     respondent has questioned the integrity of the
     Embassy staff, it would be beyond the realm for the
     respondent to question the recent letter submitted by

6. Ms. Obianuju’s counsel claims not to have received the letter until
September 19, 2000.
                                  10


     Marc J. Susser, Director of the Office of Country
     Reports and Asylum Affairs.
The INS, therefore, no longer sought to admit the Larrea
letter nor did it submit copies of the allegedly fraudulent
documents for consideration as part of the record. It only
moved for admission of the two-page Susser letter.
  On September 21, 2000, the day of the hearing, counsel
for Ms. Obianuju presented the IJ with a letter expressing
her objections to the Susser letter, primarily reiterating the
concerns set forth in the motion in limine. On September
21, the IJ heard from both counsel regarding the
admissibility of the Susser letter and other documents. As
the INS no longer sought admission of the Larrea letter, it
was marked for identification purposes only. Without any
explanation, the IJ admitted the Susser letter over Ms.
Obianuju’s objections. The IJ closed the record at this
hearing.7
  On October 30, 2000, the IJ issued a written opinion.
The IJ found that Ms. Obianuju had not established that
she suffered past persecution or a well-founded fear of
persecution, and therefore denied her applications for
asylum, withholding of removal, and relief under the
Convention Against Torture. The IJ’s decision was based
almost entirely on its finding that Ms. Obianuju was not
credible. First, the IJ said that Ms. Obianuju’s testimony
seemed exaggerated and rehearsed. Second, the IJ believed
that details of her testimony “simply did not add up.” She
pointed specifically to the implausibility of Ms. Obianuju’s
explanation for discrepancies with her membership cards,
that she was repeatedly mistreated by officers in exactly the
same manner, and that the government would search so
actively for a girl who was only moderately involved in
political activity. Third, the IJ found that several reports

7. “The record is closed, but for the decision of the Court. Understood,
counsels? I will accept no further documents unless there’s a showing
that this document was unavailable, and is germane to the case, and it
was unavailable at the, and it was clearly unavailable, and this clearly
this document is extraordinary, and would clearly substantiate the
respondent’s claim. So the record is closed but for the submission, the
issuance of the decision.”
                             11


provided by the INS questioned the authenticity of
documents submitted by Ms. Obianuju, as well as the
veracity of her testimony. Specifically, the IJ pointed to the
Susser letter, the INS Forensic Document Laboratory
(“FDL”) report questioning the authenticity of one SDF card,
and a document entitled “Abuse of Membership of the
Social Democratic Front by Asylum Seekers” prepared by
the SDF in Cameroon. Finally, the IJ explained that it was
unbelievable that a person in her position would be the
subject of the persecution she claimed.
   Ms. Obianuju filed an appeal with the Board of
Immigration Appeals on November 27, 2000. On July 10,
2001, Ms. Obianuju filed a motion to supplement the
record for her asylum application. She asked the BIA to
consider three additional documents that were not part of
the record before the IJ: an affidavit of Sister Jane Mankaa,
a Cameroonian nun living in New Jersey who visited Ms.
Obianuju’s parents in August 2000; a second affidavit of
Dr. Milton Henry Krieger commenting in part on Sister
Mankaa’s affidavit; and, an affidavit of Dr. Frances Geteles,
a certified clinical psychologist who examined Ms. Obianuju
in July 2001. All three affidavits provide support for Ms.
Obianuju’s version of events and bolster her credibility. Ms.
Obianuju also asked the BIA to consider a June 21, 2001
memorandum from Bo Cooper, General Counsel to the INS.
Cooper set forth the proper procedure to follow when
conducting overseas investigations in order to ensure the
confidentiality of the asylum applicant. Ms. Obianuju
offered the letter as support for her argument on appeal
that the confidentiality of her application was breached by
the investigation reflected in the Susser letter.
   Without oral argument, the BIA issued its decision on
August 17, 2001. The BIA first denied Ms. Obianuju’s
motion to supplement the record. It explained: “[T]he Board
is an appellate body whose function is to review, not create
a record. Thus it would be inappropriate for us to accept
the evidence proffered by the respondent.” (citation
omitted). The BIA also refused to remand to the IJ for it to
consider the additional evidence, because, with the
exception of Dr. Geteles’s affidavit, it was “not shown that
the affidavits could not have been presented on or before
                             12


close of the hearing on the merits which was concluded on
September 21, 2000.” The BIA further found that Dr.
Geteles’s affidavit would not change the outcome in the
case and therefore did not merit reopening the record.
   The BIA then conducted a de novo review of the record,
found that the IJ’s decision was correct, and dismissed the
appeal. In the course of its analysis, however, the BIA
disagreed with much of the IJ’s reasoning, specifically two
of the primary grounds on which the IJ relied when
concluding that Ms. Obianuju was not credible. The BIA
explained: “We disagree with the Immigration Judge that it
is implausible that the respondent may have been abused
on different occasions in similar ways or that as a rank and
file member of the SDF she would not have been subject to
custodial abuse.” The BIA also found that the IJ’s
description of Ms. Obianuju’s testimony did not reflect
whether her demeanor was a result of rehearsal, as the IJ
concluded, or instead “related to the respondent’s repetition
of stressful events in different venues with resulting
emotional numbness.” The BIA concluded: “Consequently,
to the extent that the Immigration Judge’s decision is based
upon finding these accounts of the respondent incredible
solely based upon their implausibility and/or the manner
in which the testimony was provided, we disagree with the
Immigration Judge.”
   The remainder of the BIA’s decision focused on the
allegedly fraudulent corroborating documents submitted by
Ms. Obianuju based on the “investigation” results set forth
in the Susser letter. The BIA concluded that the Susser
letter was properly admitted and considered by the IJ. The
BIA essentially adopted the conclusions of the Susser letter
and concluded that the five pieces of evidence discussed
therein were fraudulent: the medical certificate from her
doctor in Cameroon; the arrest warrant; the bail
application; the affidavit of Ms. Obianuju’s father; and the
affidavit by her attorney in Cameroon, Robert Nsoh Fon.
The BIA also concluded that one of the SDF membership
cards she submitted was fraudulent because of the
discrepancy between the dates of contribution, beginning in
1991, and the date she claims to have joined, in 1996. The
BIA specifically rejected Ms. Obianuju’s explanation,
                              13


supported by affidavits of SDF members, regarding the
practice of backdating membership cards when a member
paid dues for previous years.
  The BIA’s finding that the evidence described in the
Susser letter was fraudulent was the linchpin of its
decision:
    In essence, there is a pattern in the evidence consistent
    with the repeated fabrication of identities for
    individuals signing documents presented by the
    respondent and this pattern is reinforced by stamps on
    affidavits which appear to be fake and the failure to
    register documents in the High Court of Bamenda as
    required. We find this pattern consistent with the
    production of counterfeit evidence as opposed to the
    administrative lapses and corruption described by the
    respondent or intentional efforts to discredit her
    persecution claim.
The BIA focused on Ms. Obianuju’s submission of
fraudulent documents, and not the substance of the
evidence supporting Ms. Obianuju’s claims:
    We find that the respondent’s failure to meet the
    burden of proving eligibility for relief is directly related
    to the adverse credibility determination and the
    presence of counterfeit evidence presented in an
    attempt to corroborate the respondent’s account. It is
    the presentation of counterfeit documents to bolster
    her claim, rather than the failure to present any
    specific supporting evidence, which has resulted in the
    failure of proof.
Notwithstanding its concerns regarding the IJ’s analysis,
the BIA ultimately reached the same conclusion and
rejected Ms. Obianuju’s application due to her lack of
credibility, although based on the submission of falsified
documents. The BIA concluded:
    Despite the fact that we do not agree with all aspects
    of the Immigration Judge’s decision, we see no reason
    to disturb the adverse credibility determination. We
    find that the respondent’s efforts to explain and/or
    rebut the findings of United States officials are
                             14


    inadequate and that such counterfeit corroborative
    evidence discredits not only the specific evidence itself,
    but indicates an overall lack of credibility regarding the
    entire claim. As the adverse credibility determination is
    dispositive for purposes of eligibility, the respondent’s
    appeal from the denial of her applications for asylum,
    withholding of removal, and relief under the CAT is
    dismissed.
(citations omitted).
  Ms. Obianuju then filed this petition for review.

                             II.
  We have jurisdiction to review the BIA’s final order
pursuant to 8 U.S.C. § 1252(a)(1). The BIA had jurisdiction
under 8 C.F.R. § 3.1(b)(9). As it conducted an independent
analysis of the record, we limit our review to the BIA’s final
order. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.
2001). Our analysis of the order will proceed in two parts.
First, we will review de novo whether Ms. Obianuju’s due
process rights were violated. Chong v. INS, 264 F.3d 378,
386 (3d Cir. 2001). Next, we will consider whether the BIA
abused its discretion in refusing to reopen the record and
remand to the IJ for it to consider supplemental evidence.
Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001).
A. Reliance on Susser Letter Violated Ms. Obianuju’s Due
Process Rights
   We must first consider Ms. Obianuju’s challenge to the
BIA’s consideration of the Susser letter. This is a crucial,
threshold consideration, because, as we noted, the BIA’s
decision was based almost entirely on the Susser letter,
and it is clearly the underpinning for the BIA’s conclusion
that Ms. Obianuju’s testimony was not credible and that
her corroborative evidence was fraudulent. Without the
Susser letter, the majority of the BIA’s reasoning actually
supports Ms. Obianuju’s case. Because we believe that the
BIA’s reliance on the letter violated her Fifth Amendment
right to due process, we need not address Ms. Obianuju’s
other challenges to the letter.
                              15


   Due process protections are afforded to aliens facing
removal. See, e.g., Abdulai v. Ashcroft, 239 F.3d 542, 549
(3d Cir. 2001) (“Despite the fact that there is no
constitutional right to asylum, aliens facing removal are
entitled to due process.”); Chong v. INS, 264 F.3d 378, 386
(3d Cir. 2001) (“Aliens facing removal are entitled to due
process.”). Because the Federal Rules of Evidence do not
apply in asylum proceedings, “[t]he test for admissibility of
evidence . . . is whether the evidence is probative and
whether its use is fundamentally fair so as not to deprive
the alien of due process of law.” Bustos-Torres v. INS, 898
F.2d 1053, 1055 (5th Cir. 1990); see Lopez-Chavez v. INS,
259 F.3d 1176, 1184 (9th Cir. 2001) (“The sole test
governing the admission of evidence in deportation
proceedings is whether the evidence is probative and its
admission is fundamentally fair.”) (quotation omitted). As
the Court of Appeals for the Second Circuit has explained:
“In the evidentiary context, fairness is closely related to the
reliability and trustworthiness of the evidence.” Felzcerek v.
INS, 75 F.3d 112, 115 (2d Cir. 1996). Therefore, our
analysis as to whether an individual’s constitutional rights
are violated turns on whether the evidence considered by
the BIA is reliable and trustworthy. For the reasons
discussed below, we find that the admission of the Susser
letter violated Ms. Obianuju’s due process rights.
  Succinctly stated, the Susser Letter does not satisfy our
standards of reliability and trustworthiness. Initially, we are
troubled by the dates of the INS’s procurement of the
Susser Letter and the timing of its being provided to Ms.
Obianuju’s counsel and the IJ a few days before the final
hearing. As we noted above, the date that INS counsel
requested an extension in order to obtain the original of the
Larrea letter — August 7, 2000 — is the very same date
that appears on the Susser letter. However, the INS only
provided the Susser letter to the IJ and Ms. Obianuju’s
counsel nearly six weeks later, on September 18, 2000,
when it sought to introduce it into evidence as a
replacement for the Larrea letter which was ultimately
marked for identification purposes only. Furthermore,
Susser noted in his August 7 letter: “These documents were
forwarded to us by your office.”
                              16


   Second, although hearsay can be admitted in asylum
cases under certain circumstances, see, e.g., Kiareldeen v.
Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001), reliance on
such evidence here raises the precise concerns that are
fundamental to its general inadmissibility in civil
proceedings, and raises concerns that it is not
fundamentally fair. As we have previously explained:
“Hearsay is generally inadmissible because the statement is
inherently untrustworthy: the declarant may not have been
under oath at the time of the statement, his or her
credibility cannot be evaluated at trial, and he or she
cannot be cross-examined.” U.S. v. Reilly, 33 F.3d 1396,
1409 (3d Cir. 1994) (quotation omitted). Although the
Federal Rules do not apply in this case, exceptions set forth
in the Rules focus on trustworthiness, further indicating
why we regard hearsay with a level of suspicion. See, e.g.,
Fed. R. Evid. 803(6)-(8) (“Hearsay Exceptions; Availability of
Declarant Immaterial”); Fed. R. Evid. 804(b)(3) (“Hearsay
Exceptions; Declarant Unavailable”); Fed. R. Evid. 807
(“Residual Exception”).
  The Susser letter is multiple hearsay of the most
troubling kind. It seeks to report statements and conduct of
three declarants who are far removed from the evidence
sought to be introduced. They are purportedly individuals
who told the investigator that certain aspects of the
documents appeared to be fraudulent. Not only does Susser
have no direct knowledge of the investigation, he did not
even directly communicate with John Larrea, the declarant
whose hearsay statements he is repeating. Therefore, the
current speaker — Susser — was unable to even evaluate
the credibility of the immediate preceding declarant —
Larrea — who of course was himself only a proponent of
hearsay. Further, we do not know whether Larrea had any
interaction with “the investigator,” only referred to as “she,”
who reports to Larrea what others have purportedly told
her. Given that the consul is in Yaounde and the
investigation necessarily took place in Bamenda, it seems
entirely possible that Larrea’s sole source for the hearsay
statements was the notations written on the document.
Therefore, Larrea would also have been unable to judge the
credibility of the investigator, also a proponent of hearsay.
Therefore, Susser was three steps away from the actual
                                   17


declarants; all we know about the two individuals who have
forwarded these written statements is that one is a
Cameroonian Foreign Service National who conducted “an
investigation” for the U.S. Embassy in Cameroon and the
other is John Larrea, who worked as Vice Consul for the
U.S. Embassy in Cameroon but now, according the INS,
cannot be located by the Government.8
   A comparison of the letters shows that Susser simply
repeated Larrea’s representations with slight variations in
sentence construction, bolstering the conclusion that
Susser’s knowledge of the investigation was limited solely to
the Larrea letter itself.9 Consideration of the first
representations, regarding the medical certificate, is
illustrative. Larrea explained:
     The Director of Administrative Affairs in the Provincial
     Hospital of Bamenda told us that no doctor named
     Chefor James N. has ever worked at the hospital. He
     added that there is no medical record at the hospital
     for Glory Obianuju and the round stamp and the form
     used for the Medico-Legal Certificate are fake. It is our
     conclusion that this document is fraudulent.
Susser similarly stated:
     Regarding the Medico Legal Certificate, the Director of
     Administrative Affairs in the Provincial Hospital of
     Bamenda stated that the round form and the stamper
     used for the Certificate are fake, and that there is no
     medical record at the hospital for Glory Obianuju. He
     also noted that no doctor by the name of James N.
     Chefor has ever worked at the hospital. The

8. While counsel for Ms. Obianuju suggested that Embassy personnel
often had pressures on them which could lead to less than accurate
reports, and the INS contends that these individuals would not risk their
jobs to undermine an asylum application, we make no judgment
regarding the veracity or motives of these individuals. Our analysis is
based not on these aspects, but on the information the BIA had before
it when it based its decision on the Susser letter.
9. The Susser letter does not recite Larrea’s statement that he “does not
believe that any claims for asylum in recent years based upon political
beliefs or SDF membership have any merit.” Larrea’s statement is in
direct conflict with the State Department Country Reports on Cameroon.
                                  18


     investigator    in the U.S. Embassy in Yaounde,
     Cameroon,       concluded that this document is
     fraudulent.
Susser provided no information in his letter which was not
already stated in almost the precise same words in the
Larrea letter. The INS has not contended before us or the
BIA that Susser has any personal or even second-hand
knowledge of the investigation. His knowledge is limited to
the Larrea letter which was not even sought to be admitted
in this case because of the INS’s inability to obtain the
original.
  Third, we are concerned that the INS is attempting to use
the prestige of the State Department letterhead to make its
case and give credibility to the letter’s contents. As we have
previously noted,
     the Board’s decisions cannot be sustained simply by
     invoking the State Department’s authority. We are
     expected to conduct review of the Board’s decisions,
     and that procedural safeguard would be destroyed if
     the Board could justify its decisions simply by invoking
     assertions by the State Department that themselves
     provide no means for evaluating their validity. See
     Galina v. INS, 213 F.3d 955, 958-59 (7th Cir. 2000).
     The Board cannot hide behind the State Department’s
     letterhead.
Li Wu Lin v. INS, 238 F.3d 239, 246 (3d Cir. 2001). This
seems to be precisely what the INS intended to do in this
case, as it explained: “Although the respondent has
questioned the integrity of the Embassy staff, it would be
beyond the realm for the respondent to question the recent
letter submitted by Marc J. Susser, Director of Office of
Country Reports and Asylum Affairs.”
  Fourth, partially due to the multiple levels of hearsay
involved here, we have absolutely no information about
what the “investigation” consisted of, or how the
investigation was conducted in this case.10 In combination

10. The Lawyers Committee for Human Rights filed an amicus curiae
brief arguing that we should rule the Susser letter inadmissible because
                                    19


with the concerns we note above, we believe that the
complete dearth of information about the investigator or the
investigation undermines the Susser letter as not only
untrustworthy, but also unhelpful. Further adding to our
concern, Dr. Milton Krieger, a scholar of politics in
Cameroon, expressed his belief “that it is very difficult to
prove and/or disprove the authenticity of documents
created in Cameroon since political tensions and
administrative lapses and corruption intensified in the early
1990s.” We also agree with Ms. Obianuju’s contention that
the persons contacted provided only indirect attacks as to
the genuineness of the documents. For instance, rather
than locate the individual who supposedly signed the
warrant, or confirm through authorities that such person
existed, the investigator presented the warrant to a different
magistrate who states: “After a thorough search in my
chambers, I have not been able to get any trace of evidence
that a warrant of arrest was ever issued.” JA41. There is no
reason to expect that the warrant would be in this
magistrate’s chambers.
  We have previously expressed concern about the BIA’s
attributing significance to activities such as interviews at
airports when it lacked key information regarding the
manner      in    which    interviews     were   conducted.
Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998);
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998).
Although we did not consider whether there was a due
process violation in those cases, we did conclude that the
BIA’s adverse credibility determination was faulty because
the airport interviews were not “valid grounds upon which
to base a finding that the applicant [was] not credible.”
Balasubramanrim, 143 F.3d at 164 (quotation omitted); see
Senathirajah, 157 F.3d at 216. In Balasubramanrim, we
noted that we did “not know how the interview was
conducted or how the document was prepared.” 143 F.3d at

the confidentiality of Ms. Obianuju’s asylum application was violated by
the investigation. We agree that the guarantee of confidentiality is
significant, but the issue in this case is resolved by the violation of Ms.
Obianuju’s due process rights and therefore we do not reach this
argument.
                              20


162. In Senathirajah, relying in large part on our reasoning
in Balasubramanrim, we likewise were troubled by the
interview because “[t]he government offered no testimony as
to the circumstances under which that affidavit was
obtained.” 157 F.3d at 218. The manner of eliciting such
information is crucial to their probative value. Similarly,
here, the nature of the purported “investigation” is a matter
of pure conjecture and can provide no basis for a finding of
falsification on the part of Ms. Obianuju.
   We find that the BIA violated Ms. Obianuju’s due process
rights by basing its credibility finding almost entirely on the
Susser letter, because it appears neither reliable nor
trustworthy. As in Lin, Balasubramanrim, and Senathirajah,
“[t]he Board’s performance in this case was less than it
should have been.” Lin, 238 F.3d at 248. Accordingly, on
remand, the BIA must consider the record before it absent
the Susser letter.
B.   Additional Evidence
   We next consider whether the BIA abused its discretion
in denying Ms. Obianuju’s motion to reopen the record and
remand to the IJ for it to consider four additional pieces of
evidence: an affidavit of Sister Jane Mankaa, a nun who
visited Ms. Obianuju’s parents in Cameroon in August
2000; an affidavit of Dr. Milton Henry Krieger discussing
the reliability of Sister Mankaa’s affidavit; a psychological
evaluation of Ms. Obianuju by Dr. Frances Geteles; and a
June 2001 memorandum from Bo Cooper, General Counsel
to the INS, setting forth the proper procedure to follow in
overseas investigations to ensure the confidentiality of the
asylum applicant. We find that the BIA did not err in
finding that the affidavits of Sister Mankaa and Dr. Krieger
could have been presented on or before the close of the
record, and thus not permitting their consideration, but
that it did abuse its discretion in determining that Dr.
Geteles’s psychological evaluation was not material and
should not have been considered by the IJ. We will
therefore remand to the BIA for it to reopen the record and
remand to the IJ for consideration of the psychological
evaluation. Finally, we conclude that the Cooper memo,
which related to the investigation referenced in the Susser
                              21


letter, is no longer material, and accordingly we will not
require the BIA to allow its submission.
   “A motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought to be
offered is material and was not available and could not
have been discovered or presented at the former hearing.”
8 C.F.R. § 3.2(c)(1). We review the BIA’s denial of the motion
to reopen for abuse of discretion, “mindful of the ‘broad’
deference that the Supreme Court would have us afford.”
Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001) (citing INS
v. Abudu, 485 U.S. 94, 108 (1988)).
   The BIA denied Ms. Obianuju’s motion to reopen to
present additional evidence on the grounds that she had
not proven that Sister Mankaa’s affidavit, Dr. Krieger’s
affidavit, and the Cooper memo “could not have been
presented on or before the close of the hearing on the
merits which was concluded on September 21, 2000.” The
BIA found that the psychological evaluation could not have
been presented prior to the close of the record, but that
“there is other evidence of record of the respondent’s
medical examination in the United States,” and that “in
view of the basis of [its] disposition of this case, it does not
appear     that  evidence      of   psychological     evaluation
subsequent to the immigration hearing would change the
outcome.”
   First, we find that the BIA did not abuse its discretion in
finding that Sister Mankaa’s and Dr. Krieger’s affidavits
could have been presented prior to the close of the record.
Because Dr. Krieger’s affidavit is an evaluation of Sister
Mankaa’s affidavit, the time frame for the Sister’s affidavit
governs both pieces of evidence. That is, if her affidavit
could have been presented prior to the close of the
evidence, then so could his. We will therefore address these
two affidavits together.
   Sister Mankaa’s affidavit was taken in support of Ms.
Obianuju’s parole application of May 17, 2001. The affidavit
itself is not dated. In her affidavit, Sister Mankaa states
that she learned of Ms. Obianuju’s detention from a friend
and visited Ms. Obianuju at her detention center in New
Jersey before Ms. Obianuju was transferred to a detention
                                   22


center in New York. After that, she and Ms. Obianuju were
in “regular contact by mail.” She then states that she went
home to Cameroon in August 2000 and visited Ms.
Obianuju’s family there. She details what Ms. Obianuju’s
parents told her about the persecution Ms. Obianuju would
face if she returned home. Nowhere in the affidavit does
Sister Mankaa state when she returned from Cameroon.
  Ms. Obianuju contends that she could not have
presented this evidence before September 21, 2000 because
she and her counsel did not learn of that trip until several
months later. The government argues that the affidavit does
not meet the threshold requirement of establishing its
unavailability at the hearing because it does not contain
any information as to when the affidavit was taken or when
the Sister returned to the United States.
   We agree with the government’s position and find that
the BIA did not abuse its discretion in finding that these
affidavits could have been presented prior to the close of
the record. The BIA was provided with a document that did
not contain any dates except to state that the trip occurred
in August 2000, prior to the close of the record. Since
Sister Mankaa states that she and Ms. Obianuju were in
“regular contact,” it was within the realm of discretion for
the BIA to conclude that Ms. Obianuju could have found
out about the trip and presented the information. Although
it is true that this affidavit, and Dr. Krieger’s, were
presented in response to the Susser letter, which Ms.
Obianuju did not have until three days prior to the final
hearing, Ms. Obianuju had been in possession of the Larrea
letter since June 2000, which contained almost exactly the
same contentions. Ms. Obianuju therefore was on notice
that her credibility and the legitimacy of her claim were
being challenged.11

11. While we do not find that the BIA was required to reopen the record
to allow the IJ to consider Sister Mankaa’s and Dr. Krieger’s affidavits,
we note that, on remand, the IJ may wish to consider these affidavits so
that he has a fully developed record on which to rest his ruling. See
Jacinto v. INS, 208 F.3d 725, 733 (9th Cir. 2000) (immigration judge, like
administrative law judge in social security cases, has a duty to fully
develop the record).
                            23


  However, we find that BIA did abuse its discretion in
denying the motion as to the psychological evaluation. The
BIA found that the report could not have been presented
earlier, but that it was duplicative of a previous medical
report and would not change the outcome. See Matter of
Coelho, 20 I.&N. Dec. 464 (BIA 1992) (“if we conclude that
our decision on the appeal would be the same even if the
proffered evidence were already part of the record on
appeal, we will deny the motion to remand”).
   We find that the psychological evaluation is material and
not simply repetitive of the other medical evidence. The
“other evidence” that was in the record consists of a four
page medical report by Dr. Kang, a family doctor who has
received specialized training in documenting and treating
victims of torture. The psychological components of the
report include two statements about Ms. Obianuju’s
psychiatric state and a conclusion that her explanation of
events was consistent and that she was most likely telling
the truth. The report also concludes that a physical exam
was consistent with her story.
  The psychological evaluation Ms. Obianuju seeks to
submit was conducted by Dr. Geteles, a clinical
psychologist who has also received special training in the
detection and documentation of torture. Her seven page
report contains two pages of “Psychological Assessment,”
including a diagnosis of Post Traumatic Stress Disorder
and Major Depressive Disorder, and the doctor’s conclusion
that Ms. Obianuju “possesses a psychiatric profile
consistent with and strongly corroborative of her claim that
she was the victim of persecution and continues to suffer
the effect of those experiences.” This report adds new,
material information beyond what was contained in Dr.
Kang’s report.
  Because we see no need to question the BIA’s finding
that the information could not have been presented prior to
the close of evidence, but find that the evaluation is
material, we will remand to the BIA with instructions to
reopen the record and remand to the IJ for consideration of
the evaluation.
  Finally, both parties agree that the BIA erred when it
found that the Cooper memo could have been presented
                            24


prior to the close of evidence. The BIA erroneously stated
that the memo was dated June 2000, however, a closer
look reveals that the memo is dated “June 2001.” The
memo was therefore clearly not available prior to the close
of evidence. However, this memo was intended to cast
doubt on the investigation outlined in the Susser memo
and is therefore no longer material because we have already
held the Susser letter to be untrustworthy and its use a
violation of Ms. Obianuju’s due process rights. As the
memo is no longer material, we will not require the IJ to
consider it.

                            III.
  The BIA violated Ms. Obianuju’s due process rights by
resting its credibility determination almost entirely on the
unreliable and untrustworthy Susser letter. In addition, the
BIA abused its discretion by refusing to reopen the record
and remand to the IJ for it to consider a material
psychological report. We will not assess Ms. Obianuju’s
entitlement to relief based on the record as we have
required it to be modified by this opinion because the
agency should have the opportunity to do so. See INS v.
Ventura, 123 S. Ct. 353, 356 (2002). We will therefore
remand to the BIA for further proceedings regarding Ms.
Obianuju’s petition without reliance on the Susser letter
and aided by the additional psychological evaluation.
Accordingly, we will GRANT the petition for review, and
REMAND this case to the BIA for further proceedings
consistent with this opinion.
                             25


                         Appendix
                       Susser Letter
                                  Bureau of Democracy,
                                  Human Rights and Labor
                                  August 7, 2000
NAME:        Obianuju, Glory
A #:         76 142 746
COUNTRY:     Cameroon
Irene Feldman
Assistant District Counsel
U.S. Department of Justice
Immigration and Naturalization Service
Elizabeth, NJ 07201
Dear Ms. Feldman:
  I am writing to forward the results of an investigation, by
a Foreign Service post, of documents presented in support
of the asylum application of the above-named individual.
These documents were forwarded to us by your office.
   Regarding the Medico Legal Certificate, the Director of
Administrative affairs in the Provincial Hospital of Bamenda
stated that the round form and the stamp used for the
Certificate are fake, and that there is no medical record at
the hospital for Glory Obianuju. He also noted that no
doctor by the name of James N. Chefor has ever worked at
the hospital. The investigator in the U.S. Embassy in
Yaounde, Cameroon, concluded that this document is
fraudulent.
   Regarding the affidavits dated October 22 and November
15, 1999, the president of the High Court of Bamenda
stated that the round stamp and the Commissioner for
Oaths stamps are fake. He further stated that neither
affidavit had been registered or sworn in the High Court of
Bamenda. It is the Embassy investigator’s conclusion that
this document is fraudulent.
   It is the Embassy investigator’s conclusion that arrest
warrant and application for bail documents are also
fraudulent. The arrest warrant lacks key information such
as the charge number and dates of appearance and time.
                              26


The application for bail was allegedly signed by an
individual who has never served as president of the court.
  We hope that this information is helpful. If we can be of
any further assistance. Please do not hesitate to contact us.
                                   Sincerely,
                                   Marc J. Susser
                                   Director
                                   Office of Country Reports
                                   and
                                   Asylum Affairs

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
