Petition for Review of an Order of the Board of Immigration Appeals (A73 535 070)
Before: Sloviter, Becker, and Stapleton, Circuit
The opinion of the court was delivered by: Sloviter, Circuit Judge
Igor Leia*fn1 petitions this court for review of an order of the Board of Immigration Appeals (BIA) dated April 14, 2003 dismissing his appeal from the order of the Immigration Judge (IJ) denying his application for asylum and withholding of removal. Leia argues, inter alia, that the BIA abused its discretion in affirming the IJ's refusal to admit the documentary evidence that he proffered following remand of the case because it had not been authenticated in the manner required by 8 C.F.R. § 287.6, the primary factor contributing to an adverse credibility determination. App. at 50. The BIA's 2003 dismissal order stated, inter alia, "Based on the lack of authenticated collaborating documentation, we find that the respondent failed to meet his burden of proof." Id. Because this court has recently issued an opinion interpreting the authentication requirement in 8 C.F.R. § 287.6, see Liu v. Ashcroft, 372 F.3d 529 (3d Cir. 2004), an opinion that was not available to either the IJ or the BIA at the time of their respective decisions, we will grant Leia's petition for review, vacate the BIA's order, and remand.
Leia is a Ukrainian citizen of Polish descent. According to him, non-ethnic Ukrainians living in the Ukraine like himself are treated differently than ethnic Ukrainians. In the agency proceedings, he argued that because he is not of Ukrainian ancestry he was often subject to ridicule and was repeatedly denied job promotions. Leia testified that in order to combat this discrimination he joined a political organization called the United National Front (UNF), whose goals are to promote the rights of non-ethnic Ukrainians within the Ukraine. A.R. 279. As a member of this organization, Leia would attend meetings, hand out information in the streets and squares of the city of his residence, and correspond with UNF organizations in other cities. App. at 124-25.
Leia testified that during a UNF meeting on December 12, 1993, he was beaten by members of the Organization of Ukrainian Nationalists and the Ukrainian Revolutionary Army (Nationalistic Party), a conglomerate ultra-nationalist group.*fn2 According to Leia, he was struck in the head with a pair of brass knuckles – an attack that left a scar. He further stated that instead of arresting the members of the Nationalistic Party who had started the fight, the authorities arrested him and other "victims" of the altercation. Leia was then incarcerated for over twenty-four hours, and claims that while in police custody, he was further beaten and insulted. App. at 154. Indeed, Leia claimed that when he asked the arresting officers why his attackers had not been apprehended, the officers replied caustically and stated that "if '[y]ou want trouble, we will give you trouble.'" App. at 126. Following his release, Leia filed a complaint with the prosecutor's office but stated that he never received a response. Id.
After this incident, Leia began getting bi-weekly calls and threats at home from people demanding that he stop his political activities and suggesting that he leave the Ukraine. App. at 126-27. He further claims to have received notes containing similar threats. Then, while Leia was walking home on March 13, 1994, he was beaten on the street by members of the Nationalistic Party. During this attack, his assailants taunted him: "'remember we warned you to stop, but you did not listen.'" App. at 127. As a result of this assault, he suffered multiple contusions and bruising all over his neck and body, a concussion, and longerterm injury to his brain.*fn3
Approximately two months later, he and his wife were both attacked and beaten by a group of apparent ultra nationalists in the yard in front of their apartment. App. at 128. Leia was beaten with a metal bat and again sustained a concussion; further, his wife, who was pregnant at the time, suffered a miscarriage. He and his wife were then taken to the hospital. After they were released, his wife filed a complaint with the authorities, but once again no action was taken in response to this complaint. App. at 128. Fearing that he would be subject to future beatings and acts of persecution, Leia came to the United States and, within a year of his arrival, sought asylum. App. at 155.
After reviewing Leia's claim, the IJ held that he was not eligible for asylum. The IJ, in an oral decision dated November 7, 1995, based her decision on the issue of credibility, stating she had "grave misgivings" regarding the credibility of Leia, on the lack of "objective facts in support of the application," and on the fact that the United State's Department of State country reports, profiles, and advisory opinions indicated that Leia could live in other areas in the Ukraine without experiencing persecution. App. at 147-49. The IJ's credibility determination in turn was primarily based on Leia's failure to obtain original documents from the various Ukrainian governmental authorities and on the fact that the facsimile copies he did obtain were not properly authenticated pursuant to 8 C.F.R. § 287.6. App. at 148. In fact, because Leia had failed to authenticate the foreign documents pursuant to the protocols delimited in 8 C.F.R. § 287.6, the IJ sustained an objection to those documents lodged by the Immigration and Naturalization Service (INS)*fn4 and refused to enter them into evidence.
In addition to the authentication of documents issue and Leia's resultant inability to provide documentary support for his averments, the IJ noted two inconsistencies in Leia's testimony which she found troubling and which affected her credibility determination. The first inconsistency concerned the date of the second beating. Although Leia testified that the second beating occurred on March 18, 1994, the IJ noted that his passport shows that he was in Poland on this date. App. at 147.
The second inconsistency in Leia's testimony to which the IJ referred concerned the legal status of the UNF. At various times in his testimony, Leia referred to the organization as legal and at other times he described it as illegal. According to Leia, the UNF had applied for legalization but had not received papers indicating that it was legal or illegal. He testified that because the UNF had never received papers saying it was illegal he believed the UNF not to be illegal. A.R. 300-01. At another portion of his testimony, petitioner stated that he could not obtain proof of his membership in the UNF because these would be "'illegal papers.'" App. at 147. The IJ stated that this testimony was internally inconsistent.
Lastly, the IJ determined that Leia's testimony regarding his need for asylum was contradicted by the Department of State advisory opinions and the country reports on human rights for 1994 which indicated that there were areas in the Ukraine where petitioner would be able to live without experiencing persecution. On these bases, the IJ found that petitioner's testimony regarding his need for asylum was not credible and denied his request for asylum. App. at 148-50.
On appeal, the BIA focused on the IJ's decision sustaining the INS's objections to the unauthenticated facsimile documents. The BIA pointed out that the INS was provided with the evidence approximately two months before the hearing but failed to notify the Leias of its objections until the hearing. Noting the importance of the documents, the BIA determined that the Leias "should be given further opportunity to authenticate their evidence and have it considered." App. at 140.
Sometime thereafter, Leia filed an affidavit directed to the discrepancy noted by the IJ as to the date of the second beating. Leia explained that he had not remembered the date he was attacked so he relied on the certificate from the hospital, which was apparently incorrect. Subsequently, he obtained a corrected version of the hospital record, which confirmed March 13, 1994 as the date of the second attack. He proffered the affidavit and the corrected version of the ...