By Jennifer Doherty
Law360 (January 8, 2021, 10:14 PM EST) –Immigration judges are qualified to identify fraudulent documents without outside analysis, the Board of Immigration Appeals determined Friday, tossing a Nigerian man’s bid for deportation relief based in part on evidence he provided that spelled Nigeria as “Nageia.”
Citing heavily from the BIA, immigration court and appeals court precedent, Judge Garry D. Malphrus affirmed immigration judges’ capacity to evaluate “obvious defects” in evidence presented to them, provided they gave migrants the opportunity to explain those flaws.
“Courts have long recognized that immigration judges may find that documents are not genuine if they contain ‘hallmarks of fraud,’ which include misspellings, overwriting, incorrect information, and alterations,” he said.
Judge Malphrus based his analysis on language in the Immigration and Nationality Act, which gives immigration judges “ample discretion in assessing credibility,” with the caveat that their determinations must reflect the bulk of the record, not cherry-picked facts.
“In some circumstances, forensic analysis or other expert testimony may be needed to support an immigration judge’s determination that a document is fraudulent,” the panel acknowledged, citing a Ninth Circuit decision reversing an immigration court ruling based on the judge’s amateur handwriting analysis. The panel did not specify what kinds of fraud findings should require outside analysis.
Attorney Kamah Gueh-Thoronka, who represents the migrant in the case, told Law360 the decision could harm the chances of many migrants from less developed countries.
“I deal with a lot of the West African countries in addition to some of the Hispanic countries, and the first thing that comes to my mind is that we are now going to be facing a lot of issues where if it just looks funny, judges don’t have to go through any process of authentication anymore,” she told Law360 Friday. “They can just look at it and determine, ‘Oh, OK, well, this is fake.”‘
In the case before the panel, the migrant seeking relief, who was identified only as a citizen of Nigeria, was stripped of his U.S. residency based on 2014 convictions for conspiracy to commit mail, wire and bank fraud, and aiding and abetting aggravated identity theft.
During removal proceedings, he asked the immigration judge to defer his removal under the United Nations Convention against Torture. He claimed to have been detained and mistreated by Nigerian State Security Service in 2005 and 2010 for his work as an activist seeking additional education funding and better conditions for students and lecturers.
He provided a “Wanted” flier and a letter dating from 2009 purportedly signed by the commissioner for education for Oyo State as evidence to support his claims.
Both documents came under suspicion. The judge noticed the flier said “Nageia Police Authority,” and its text was printed over a signature and seal affixed to the bottom of the page. For the letter, the U.S. Department of Homeland Security presented evidence that the sender had not become the commissioner for education until 2010.
When questioned about the exhibits, the man said that “Nageia” was a common nickname for Nigeria inside the country, and that it was common practice to print on pages that had been pre-signed and sealed.
“I agree with the judge’s reasoning [that] as an official document, your country’s name should be spelled correctly,” Gueh-Thoronka said, reaffirming the flier’s authenticity and pointing out that the author likely wasn’t thinking about whether the document would look official in a foreign court. “For me, my first thought was: You’re spelling it this way because that’s how people say it.”
The panel did not address countries’ differing administrative standards and procedures in its decision.
“The arguments in the respondent’s brief, that Nigerians commonly call Nigeria ‘Nageia’ and that signatories generally sign what is already printed, are not evidence,” Judge Malphrus said. “Even if the respondent had shown that ‘Nageia’ is a colloquialism, this is insufficient to establish that the misspelling would be used in an official document.”
The man also submitted a second letter, purportedly signed by the current statistics officer of the Oyo State Ministry of Education, attesting that the person who signed the 2009 letter had been acting as commissioner before officially landing the role. But Judge Malphrus found that the immigration judge was also correct to dismiss that evidence, since the letter was not accompanied by information confirming the sender’s identity.
“[The immigration judge] also considered the respondent’s convictions for crimes involving fraud, which further undermined his credibility …. The immigration judge properly determined that the respondent lacked credibility and did not establish the validity of his claim,” the panel said, dismissing the appeal.
Representatives at the U.S. Department of Justice did not respond to requests for comment.
Judges Garry D. Malphrus, Aaron R. Petty and Daniel A. Morris sat on the panel for the Board of Immigration Appeals.
The appellant is represented by Kamah Gueh-Thoronka of Thoronka Law Offices.
DHS is represented in-house by Jorge L. Montesino.
The case is Matter of 0-M-0-, Respondent, case number 28 I&N Dec. 191 (BIA 2021),
before the Board of Immigration Appeals.
–Editing by Adam LoBelia