Jersey City, New Jersey – On January 8, 2021, the Board of Immigration Appeals (“BIA”) decided Matter of O-M-O by holding, “An immigration judge may find a document to be fraudulent without forensic analysis or other expert testimony where the document contains obvious defects or readily identifiable hallmarks of fraud and the party submitting the document is given an opportunity to explain the defects.” By issuing a Precedential decision on the subject, the BIA formalized a policy that has long been in effect in immigration courts. Essentially, it boils down to: when a document is so obviously fraudulent, an expert is not required to opine on whether the document is fraudulent or not.
In O-M-O, the Respondent submitted documents to support his claim that he could not be removed to Nigeria pursuant to the Convention Against Torture. One of those documents purported to be a letter from the Commissioner for Education in Nigeria dated in December 2009. The Department of Homeland Security (“DHS”) submitted evidence showing a different person was the commissioner of education at that time. Another document was a “Wanted” flier on which Nigeria was misspelled and the signature and text were printed over a seal on the document. The Respondent was given the opportunity to respond to, and explain, these issues.
The immigration judge found the respondent to be incredible in his testimony based on his submission of two fraudulent documents. The BIA affirmed this finding, clarifying that an expert is not needed to enter a finding that a document is fraudulent when the document bears readily identifiable indications of fraud. Such “hallmarks of fraud” include misspellings, overwriting, incorrect information and alterations, at least two of which were present in these documents.
It is unclear from the BIA’s decision if OMO was represented by counsel during his hearing, but competent counsel must pay attention to the details of evidence submitted both to strengthen the respondent’s case and to avoid negative consequences from problematic documents. Certainly, these issues should have been spotted before submitting to the court.
Ultimately, this decision does not change anything about how evidence should be presented to the courts or how courts will evaluate evidence. What it does is confirm the importance of hiring good counsel and paying attention to the details of every aspect of the case.