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Liar Liar Pants On FireBy Joseph P. Whalen (May 20, 2013)The following excerpt is from Han v. Holder, No. 11-2114 (2nd Cir.May 14, 2013) (unpublished) and it got me thinking about the issuesof credibility and falsification of evidence).“Han was not credible. See Rui Ying Lin v. Gonzales, 445 F.3d 127, 133(2d Cir. 2006) (discussing the maxim of falsus in uno, falsus in omnibus(false in one thing, false in everything)); Siewe v. Gonzales, 480 F.3d 160,170 (2d Cir. 2007) (relying on the maxim to find that once an IJ concludesthat a document is false, he or she is “free to deem suspect otherdocuments (and to disbelieve other testimony) that depend for probativeweight upon [the applicant’s] veracity”).The adverse credibility determination is further bolstered by the IJ’sdemeanor finding. Although Han argues that the IJ’s observation of herdemeanor is not supported by the record, we give particular deference tothe trier of fact’s assessment of demeanor. See Majidi, 430 F.3d at 81 n. 1………”Lin was heard before three judge panel. The opinion was written byCircuit Judge Sotomayor. I think it is a worthwhile endeavor to readthe thoughts on this subject matter which were penned by a currentSupreme Court Justice, don’t you? You probably should especially inthe immigration context where lies abound.“The IJ treated Lins evidence as if one false document used to escapepersecution, but not submitted into the record, called into question theauthenticity of all her documentary evidence. The assumption underlyingthis approach, known as falsus in uno, falsus in omnibus (false in onething, false in everything), Blacks Law Dictionary 637 (8th ed.2004), haslimits. An IJ may be justified in some circumstances in concluding that afalsified document that goes to the heart of an applicants claim forasylum, if submitted as evidence in an asylum proceeding, calls intoquestion the authenticity of other documents submitted in support of thatapplication. The BIA has distinguished, however, between the presentationof a fraudulent document in immigration court in support of an asylumapplication and the use of a fraudulent document to escape immediatedanger or imminent persecution. See In re O-D-, 21 I. & N. Dec., 1998 WL24904, 1079, 1081 (BIA 1998).1 The false document at issue in this case1 Matter of O-D-, 21 I&N Dec. 1079 (BIA 1998) held:” Presentation by an asylum applicant of anidentification document that is found to be counterfeit by forensic experts not only discredits theapplicant’s claim as to the critical elements of identity and nationality, but, in the absence of anexplanation or rebuttal, also indicates an overall lack of credibility regarding the entire claim.”
plainly falls into the latter category. Indeed, it illustrates the limited valueof the falsus in uno maxim. A false sterilization certificate submitted tofamily planning officials to evade persecution does not reasonablydiscredit the authenticity of other documents submitted in an entirelydifferent context. At ¶ 14While the above case was ultimately found in favor of the petitionerand the case remanded, it contains an excellent discussion. In Siewe,Chief Judge Jacobs expanded upon the discussion and spelled out fivecircumstances in the immigration Removal Proceedings contextwhere the invocation of the maxim should generally be inapplicable.In that case, however, none of the circumstances did apply so the casewas denied. Here is a rather lengthy excerpt from Siewe:We have "frequently . . . held [that] an IJs application of the maxim falsusin uno, falsus in omnibus [false in one thing, false in everything] may attimes be appropriate." Zhong v. U.S. Dept of Justice, 461 F.3d 101, 123 (2dCir.2006). In the immigration context, corroborating evidence is oftenlimited, and the petitioners credibility is almost always crucial. So a singlefalse document or a single instance of false testimony may (if attributableto the petitioner) infect the balance of the aliens uncorroborated orinauthenticated evidence. An IJ may, either expressly or impliedly, relyon falsus in uno to discredit evidence that does not benefit fromcorroboration or authentication independent of the petitionersown credibility. Falsus in uno may also influence the IJs assessment ofthe credibility of the corroborative evidence itself. In other words, afinding of fraudulent evidence redounds upon all evidence the probativeforce of which relies in any part on the credibility of the petitioner. Andwhere an IJs finding of fabrication (supported by substantial evidence)serves as the basis for discrediting other evidence, a reviewing court is inno position to conclude that the discrediting of the remaining evidence isunsupported by substantial evidence.However, there are limitations to the invocation of falsus in uno; theygenerally fall into five categories:(i) A finding that the petitioner adduced false evidence does notexcuse the assessment of evidence that is independentlycorroborated. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2dCir.2005) ("Despite our generally deferential review of IJ and BIAopinions, we require a certain minimum level of analysis from theIJ and BIA opinions denying asylum, and indeed must require suchif judicial review is to be meaningful.").(ii) The presentation of fraudulent documents that were createdto escape persecution may actually tend to support an aliens
application. See Lin v. Gonzales, 445 F.3d 127, 132-33 (2dCir.2006). This includes, for example, a false sterilization certificatesubmitted to Chinese authorities to evade actual sterilization, orfalse travel documents created to escape a country of allegedpersecution. Id. But this does not include false documentssubmitted as genuine to the IJ or BIA.(iii) False evidence that is wholly ancillary2 to the aliensclaim may, in some circumstances, be insufficient by itself towarrant a conclusion that the entirety of the aliens uncorroboratedmaterial evidence is also false. See Zhong, 461 F.3d[480 F.3d 171]at 123. But because the submission of such evidence naturally raisesthe question of the aliens overall credibility, even ancillary evidencesometimes supports falsus in uno. See generally Zhi Wei Pang, 448F.3d at 119 (Raggi, J., concurring in part and concurring in thejudgment) (observing that ancillary evidence may be cited toreinforce adverse credibility ruling otherwise supportedby material discrepancies or implausibilities).(iv) A false statement made during an airport interview, dependingon the circumstances, may not be a sufficient ground forinvoking falsus in uno. Aliens may "not be entirely forthcoming"during the initial interview due to their perception that it is"coercive" or "threatening," particularly aliens who may have awell-founded fear of government authorities in general. Guan v.Gonzales, 432 F.3d 391, 396 (2d Cir. 2005) (per curiam) (internalquotation marks omitted) (emphasis omitted).(v) An aliens submission of documentary evidence that the aliendoes not know, and has no reason to know, is inauthentic,is no basis for falsus in uno.For example, a document sent by afamily member attesting to events occurring in the aliens nativecountry after he left, might not bear on the aliens own credibilityunless he knew or had reason to know of its falsity.In these five circumstances, none of which apply here, it may beinappropriate for an IJ to reject an aliens uncorroborated evidence basedsolely upon the submission of false evidence.The IJ did not in haec verba intone the Latin maxim, but no such recital isnecessary. Falsus in uno is a natural and instinctive tool of the factfinder,2 In other words: immaterial and irrelevant. However, coupled with additional falsetestimony or phony documents, it may reinforce one’s propensity to lie
like a carpenters hammer or plumbers wrench. Here, the IJ found thatthe letter purporting to appoint Siewe as campaign director was "afraudulent document," and accordingly rejected Siewes explanations forother apparent inconsistencies and debated facts in his testimony. Thisfinding, supported by substantial evidence, casts doubt on all of Siewesuncorroborated evidence, and supports other inferences drawn by the IJ.”At ¶¶ 65-75 [Bold Emphasis added]While these cases arose within the Immigration RemovalProceedings Context, the maxim certainly should apply to theBenefits Adjudications Context as well. The extent of applicability andany circumstances where it should or should not apply have not beenspelled out (as far as I could find). I feel that it is up to USCIS’ AAO,to examine the issue of the application of the maxim of falsus in uno,falsus in omnibus, in the first instance. It would make a greatcandidate for a Precedent Decision from that appellate body to guideUSCIS adjudicators.In sum, the five circumstances in which the assumption that when thealien’s evidence (both oral and documentary) is false in one thing,they are probably false in all things is inapplicable are:1) Alternate evidence is independently corroborated as true.2) False statements were made and phony documents were created in orderto escape persecution. I might add to escape war, poverty, and/orstarvation.3) The falsehood is immaterial and irrelevant to the matter at hand UNLESS,it bolsters a finding of overall lack of credibility there being someadditional falsehood(s) either oral or documentary or both.4) Falsehood was based upon fear of the U.S. authority to which it was made.I might add that, initially and early on in the U.S., the falsehood was due tocultural misunderstanding.5) The alien did not know and had no reason to know that something wasfalse. Example: an older relative such as a sibling or parent or evengrandparent. Additionally, in the refugee context where a person was bornin a camp, the workers who kept the records could have made a mistake.I won’t hold my breath waiting for any Precedent from AAO, but itwould be nice to get something more than the BIA’s take on the issue.That’s my two cents, for now.Joseph.firstname.lastname@example.org