Fensong Zhu v. Holder

dissenting.

I dissent. I find this case more analogous to Dowmbia v. Gonzales, which upheld the admission of a government forensics report without cross-examination. See 472 F.3d 957, 962 (7th Cir.2007). As that court noted:

Federal Rule of Evidence 803 — embodying a stricter standard than is required in immigration proceedings — permits reports prepared by agency investigators for use in individual cases to be admitted whether or not their authors are available because of the indicia of reliability that accompany such reports, including the “assumption that a public official will perform his duty properly.” Fed.R.Evid. 803 advisory committee’s note (listing as an example of an admissible evaluative report an INS investigator’s report on how a petitioner was known in the community); see generally Fed.R.Evid. 803(8)(C). Such indicia are absent from the spousal affidavits at issue in the cases cited by the majority and, for that matter, from expert opinions generally, when not from official agency staff or pursuant to investigations authorized by law.

In this case, an examiner from the Forensic Document Laboratory, a specialized federal crime laboratory dedicated exclusively to…

MEMORANDUM *

Fensong Zhu petitions for review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture. We review the IJ’s credibility findings for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). We grant the petition because the IJ did not allow Zhu’s lawyer to cross-examine the government’s key witness — the questioned documents examiner who issued a report opining that Zhu’s documents were fraudulent. Cross-examination should have been allowed. See 8 U.S.C. § 1229a(b)(4)(B) (providing that an alien in a removal hearing must have “a reasonable opportunity ... to cross-examine witnesses presented by the government”); Sai dane v. INS, 129 F.3d 1063, 1064-65 (9th Cir.1997). The witness was available by telephone, and, contrary to the government’s assertions, Zhu did object to the IJ’s ruling at the appropriate times and noted specific deficiencies with the report. The result of this error is that the adverse credibility finding was proee-durally flawed.

We remand for a new hearing. See Soto-Olarte v. Holder, 555 F.3d 1089,…