Case of the Day: Ido v. Attorney General

The case of the day is Ido v. Attorney General (11th Cir. 2014). Yelkal Ido, an Ethopian national, sought asylum in the United States. His claim, recounted in the Eleventh Circuit’s 2012 decision, was that he had ties to the Oromo Liberation Front, an “outlawed nationalist movement that has taken up arms against the Ethiopian government because of its perceived marginalization of the Oromo.” In 2006, an immigration judge denied the claim on the grounds that Ido’s testimony was not credible. The Board of Immigration Appeals affirmed, basing its decision on the judge’s adverse credibility finding. In 2012, the Eleventh Circuit agreed with the BIA’s conclusion that Ido was not credible, but it remanded for a determination whether the documentary evidence Ido had presented independently supported his claim. The BIA again rejected the claim, and Ido again appealed.

The main issue was whether the BIA should have considered a copy of a supposed Ethiopian warrant for his arrest that Ido presented. Ethiopia is not a party to the Apostille Convention. Thus the relevant regulation provides:

(1) In any proceeding under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by an officer so authorized. This attested copy in turn may but need not be certified by any authorized foreign officer both as to the genuineness of the signature of the attesting officer and as to his/her official position. The signature and official position of this certifying foreign officer may then likewise be certified by any other foreign officer so authorized, thereby creating a chain of certificates.

(2) The attested copy, with the additional foreign certificates if any, must be certified by an officer in the Foreign Service of the United States, stationed in the foreign country where the record is kept. This officer must certify the genuineness of the signature and the official position either of (i) the attesting officer; or (ii) any foreign officer whose certification of genuineness of signature and official position relates directly to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation.

8 C.F.R. § 287.6(b). 1

The regulation is similar to the “chain legalization” method in FRCP 44(a)(2). Ido had not even tried to meet the requirements of the regulations (reality check: how could an Ethiopian refugee who claims the government is out to get him obtain the necessary certificates), but he claimed his own testimony authenticated the document, as did the official seals on it. The seal argument, of course, is a non-starter, since the whole point of the chain legalization process is that a foreign seal is not self-authenticating. The Eleventh Circuit rejected Ido’s argument about his testimony, because it had already affirmed the BIA’s conclusion that he was not credible.

This seems to me to be a harsh result. Ido may not have been credible about many of the details of his story, but is he really not credible about anything? I think the case is best explained as a result of the very deferential standard of review in administrative immigration matters.

Notes:

  1. 8 C.F.R. § 1287.6(b) is to the safe effect; I haven’t bothered to look and see why there are two regulations on this.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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