Liar Liar Pants on Fire

by Joseph Whalen

The following excerpt is from Han v. Holder , No. 11-2114 (2nd Cir. May 14, 2013) (unpublished) and it got me thinking about the issues of credibility and falsification of evidence).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 concludes that a document is false, he or she is “free to deem suspect other documents (and to disbelieve other testimony) that depend for probative weight upon [the applicant’s] veracity”).

The adverse credibility determination is further bolstered by the IJ’s demeanor finding. Although Han argues that the IJ’s observation of her demeanor is not supported by the record, we give particular deference to the 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 by Circuit Judge Sotomayor. I think it is a worthwhile endeavor to read the thoughts on this subject matter which were penned by a current Supreme Court Justice, don’t you? You probably should especially in the immigration context where lies abound.

“The IJ treated Lin's evidence as if one false document used to escape persecution, but not submitted into the record, called into question the authenticity of all her documentary evidence. The assumption underlying this approach, known as falsus in uno, falsus in omnibus (false in one thing, false in everything), Black's Law Dictionary 637 (8th ed.2004), has limits. An IJ may be justified in some circumstances in concluding that a falsified document that goes to the heart of an applicant's claim for asylum, if submitted as evidence in an asylum proceeding, calls into question the authenticity of other documents submitted in support of that application. The BIA has distinguished, however, between the presentation of a fraudulent document in immigration court in support of an asylum application and the use of a fraudulent document to escape immediate danger or imminent persecution.See In re O-D-, 21 I. & N. Dec., 1998 WL 24904, 1079, 1081 (BIA 1998). [1] The false document at issue in this case plainly falls into the latter category. Indeed, it illustrates the limited value of the falsus in uno maxim. A false sterilization certificate submitted to family planning officials to evade persecution does not reasonably discredit the authenticity of other documents submitted in an entirely different context. At ¶ 14

While the above case was ultimately found in favor of the petitioner and the case remanded, it contains an excellent discussion. In Siewe, Chief Judge Jacobs expanded upon the discussion and spelled out five circumstances in the immigration Removal Proceedings context where the invocation of the concept should generally not apply. In the case, however, none of the circumstances did apply so the case was denied. Here is a rather lengthy excerpt from Siewe:

We have "frequently . . . held [that] an IJ's application of the maxim falsus in uno, falsus in omnibus [false in one thing, false in everything] may at times be appropriate." Zhong v. U.S. Dep't of Justice, 461 F.3d 101, 123 (2d Cir.2006). In the immigration context, corroborating evidence is often limited, and the petitioner's credibility is almost always crucial. So a single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien's uncorroborated or inauthenticated evidence. An IJ may, either expressly or impliedly, rely on falsus in uno to discredit evidence that does not benefit from corroboration or authentication independent of the petitioner's own credibility. Falsus in uno may also influence the IJ's assessment of the credibility of the corroborative evidence itself. In other words, a finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner. And where an IJ's finding of fabrication (supported by substantial evidence) serves as the basis for discrediting other evidence, a reviewing court is in no position to conclude that the discrediting of the remaining evidence is unsupported by substantial evidence.

However, there are limitations to the invocation of falsus in uno; they generally fall into five categories:

(i) A finding that the petitioner adduced false evidence does not excuse the assessment of evidence that is independently corroborated. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005) ("Despite our generally deferential review of IJ and BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.").

(ii) The presentation of fraudulent documents that were created to escape persecution may actually tend to support an alien's application. See Lin v. Gonzales, 445 F.3d 127, 132-33 (2d Cir.2006). This includes, for example, a false sterilization certificate submitted to Chinese authorities to evade actual sterilization, or false travel documents created to escape a country of alleged persecution. Id. But this does not include false documents submitted as genuine to the IJ or BIA.

(iii) False evidence that is wholly ancillary [2] to the alien's claim may, in some circumstances, be insufficient by itself to warrant a conclusion that the entirety of the alien's uncorroborated material evidence is also false. See Zhong, 461 F.3d

[480 F.3d 171]

at 123. But because the submission of such evidence naturally raises the question of the alien's overall credibility, even ancillary evidence sometimes supports falsus in uno. See generally Zhi Wei Pang, 448 F.3d at 119 (Raggi, J., concurring in part and concurring in the judgment) (observing that ancillary evidence may be cited to reinforce adverse credibility ruling otherwise supported by material discrepancies or implausibilities).

(iv) A false statement made during an airport interview, depending on the circumstances, may not be a sufficient ground for invoking 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 a well-founded fear of government authorities in general. Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir. 2005) (per curiam) (internal quotation marks omitted) (emphasis omitted).

(v) An alien's submission of documentary evidence that the alien does not know, and has no reason to know, is inauthentic, is no basis for falsus in uno.For example, a document sent by a family member attesting to events occurring in the alien's native country after he left, might not bear on the alien's own credibility unless he knew or had reason to know of its falsity.

In these five circumstances, none of which apply here, it may be inappropriate for an IJ to reject an alien's uncorroborated evidence based solely upon the submission of false evidence.

The IJ did not in haec verba intone the Latin maxim, but no such recital is necessary. Falsus in uno is a natural and instinctive tool of the factfinder, like a carpenter's hammer or plumber's wrench. Here, the IJ found that the letter purporting to appoint Siewe as campaign director was "a fraudulent document," and accordingly rejected Siewe's explanations for other apparent inconsistencies and debated facts in his testimony. This finding, supported by substantial evidence, casts doubt on all of Siewe's uncorroborated evidence, and supports other inferences drawn by the IJ.” At ¶¶ 65-75 [Bold Emphasis added]

While these cases arose within the Immigration Removal Proceedings Context, the maxim certainly should apply to the Benefits Adjudications Context as well. The extent of applicability and any circumstances where it should or should not apply have not been spelled (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 great candidate for a Precedent Decision from that appellate body to guide USCIS adjudicators.

In sum, the five circumstances in which the assumption that when the alien’s evidence (both oral and documentary) is false in one thing, they are probably false in all things are:

1) Alternate evidence is independently corroborated as true.

2) False statements were made and phony documents were created in order to escape persecution. I might add to escape war, poverty, and/or starvation.

3) The falsehood is immaterial and irrelevant to the matter at hand UNLESS, it bolsters a finding of overall lack of credibility there being some additional 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 to cultural misunderstanding.

5) The alien did not know and had no reason to know that something was false. Example: an older relative such as a sibling or parent or even grandparent. Additionally, in the refugee context where a person was born in 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 it would be nice to get something more than the BIA’s take on the issue.

That’s my two cents, for now.

1 Matter of O-D- , 21 I&N Dec. 1079 (BIA 1998) held:” Presentation by an asylum applicant of an identification document that is found to be counterfeit by forensic experts not only discredits the applicant’s claim as to the critical elements of identity and nationality, but, in the absence of an explanation or rebuttal, also indicates an overall lack of credibility regarding the entire claim.”

2 In other words: immaterial and irrelevant. However, coupled with additional false testimony of phony documents, it may reinforce one’s propensity to lie

About The Author

Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.