Anim v. Mukasey (4th Cir. 8/11/08)

MICHAEL Motz Keeley (dct)

The parties agreed to let the State Department investigate a Cameroonian asylum claim; the investigator wasn't told it was an asylum case, and there was no evidence that he acted to protect the confidentiality of the applicant. The IJ admitted the State Dept's summary of the findings. The 6th Cir reversed, finding:

(A) The disclosure of information violated 8 CFR 208.6 because (1) the oral agreement in court was not an "agreement in writing" to waive the confidentiality provisions, (2) though the summary didn't clearly say that confidentiality was violated, the questions asked, the answers given, and the lack of confidentiality instructions to the investigator, give rise to the reasonable inference that it was violated; and (3) there was no need for consulate to specifically state that she was an asylum applicant, since Govt could have concluded that from the information. Therefore, CtApp remanded to permit a new application based on the violation of the confidentiality provisions.

(B) The admission of the document violated due process and was fundamentally unfair, because it was multiple hearsay, it gives no evidence of how the information was gathered (so as to be able to assess the probity of the information), and the IJ appeared to rely on the State Dept's reputation in deferring to those findings.

(C) Error was prejudicial, because the rest of the credibility analysis wasn't supported by substantial evidence, the IJ would probably have reached a different conclusion if he didn't think the docs were false, and if past persecution had been established, would have given rise to presumption of future persecution.

Read opinion here: 

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