Immigration – Asylum – Summons Investigation – Confidential Hearing

The 4th Circuit in Anim v. Mukasey (Lawyers Weekly No. 001-143-08) (23 pages) vacates the Board of Immigration Appeals’ denial of a Cameroonian’s application for asylum because a U.S. State Department letter to the woman indicates her right to a confidential asylum application under 8 C.F.R. Sect. 208.6 was breached during an overseas investigation that led to accusations that the summonses the woman received from the Cameroon police were fraudulent.
In November 2003, petitioner Dorothy Anim applied for asylum and withholding of removal under 8 U.S.C. Sect. 1158(a)(1) and Sect. 1231(b)(3) and for relief under the Convention Against Torture. Anim asserted she had suffered arrest and persecution for her political activity advocating secession of Anglophone provinces of Cameroon in the face of discrimination by the Francophone government.
We agree with Anim that the Department of State overseas investigation in Cameroon violated her right to confidentiality under 8 C.F.R. Sect. 208.6 and we remand for the agency to determine whether Anim is entitled to asylum or other relief based on the confidentiality violation. If an asylum applicant’s confidentiality has been breached, the applicant must be given the opportunity to establish a new claim for asylum, withholding of removal or relief under CAT based on the breach.
In evaluating this claim, the agency must consider whether the breach subjects the applicant to a new risk of persecution or torture that is independent of her original claim. The applicant is entitled to relief for the confidentiality violation only if she succeeds on this new claim.
Anim argues that she is entitled to asylum or other relief because she has a new fear of persecution based on the Cameroon government’s inference that she applied for asylum. Because the immigration judge and the BIA did not allow Anim to pursue this relief, we remand. Anim must be given the opportunity on remand to present her new claims for relief based on the alleged consequences of the breach of confidentiality.
Further, we agree with Anim that the IJ’s consideration of the State Department letter outlining the investigation in the Cameroon violated her constitutional right to due process, and the IJ’s decision to deny relief must be vacated. The State Department letter does not meet even the minimum standards prescribed by the Department of Homeland Security, and it lacks the clarity and content necessary to provide fair or probative evidence in an immigration proceeding. The letter does not reveal the identity of the fraud investigator.
It does not contain information about the anonymous investigator’s qualifications (other than language ability). And it is silent about the methods the investigator used and the circumstances of the inquiries that were made. Because the letter includes hearsay and lacks sufficient verifying information, there was no basis for the IJ to determine the letter was reliable. The letter was not probative and its use was fundamentally unfair to Anim.
Petition for review granted; vacated and remanded.
Anim v. Mukasey (Lawyers Weekly No. 001-143-08) (23 pages) (Michael, J.) (4th Circuit) On Petition for Review; Kim-Bun T. Li for petitioner; Jem C. Sponzo for respondent (No. 07-1373) (Aug. 11, 2008).