442 F.3d 395

DAVID A. NELSON, Circuit Judge,
dissenting.
Although I am troubled by the compound hearsay on which the government’s case rested, I cannot say that the immigration court’s reliance on the memoranda prepared by Vice Consuls Grencik and Hazel was fundamentally unfair.
Unlike the situation presented in Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir.2003), where an overseas consular letter challenged for lack of authentication had been repackaged over the signature of a State Department official in the United States, the authenticity of the Grencik and Hazel memoranda is not seriously questioned here. In this case, more significantly, the consular section of the embassy in Sofia unquestionably reopened its document authenticity inquiry in light of the two supposed “errors” in the Grencik memorandum — and the conclusion that the petitioner’s documents were forgeries was confirmed.
The first of the supposed errors in the Grencik memorandum turned out to be no error at all; the document submitted by the petitioner to prove his alleged conviction in the regional court did indeed bear the purported signature of a Judge Niko-lov (the surname of the purported translator as well), and Mr. Hazel reaffirmed that the regional court had no judge of that name in 1996. Mr. McGruder’s testimony was not to the contrary; he simply explained that the Hazel memoranda (identical copies had apparently been transmitted on September 21 and September 30, 1998) advised that the judge “named” in the questioned document was Nikolov. Mr. McGruder did not say that there actually was a judge of that name on the court in 1996. And according to Hazel the other defects that Ms. Grencik had pointed out in the petitioner’s purported conviction— namely that the form used was one employed only in civil cases and that the archives department of the regional court said that the court had no record of such a decision — still evidenced the document’s lack of authenticity.
The consular section’s reexamination of the matter yielded an important piece of new information that had been overlooked initially: the case number on the purported conviction, according to court records, was that of a specified civil case having no apparent relation to the petitioner. This datum, if true, is obviously not insignificant.
As far as the purported NIS subpoena was concerned, it turned out that Ms. Grencik had been in error as to the issuance date shown on the document. Mr. Hazel stated that the NIS had no record of having issued a subpoena on the corrected date, however. He also reiterated that the NIS did not employ an individual with a name corresponding to that shown on the document, and he confirmed Ms. Grencik’s earlier report that it was unheard of for the NIS to summon anyone to the regional court, a court that had independent subpoena authority and used its own subpoena forms.
It is true that neither Ms. Grencik nor Mr. Hazel claimed to have spoken directly with the NIS or with the archives department of the regional court. I think we must assume, therefore, that the vice consuls were relying on information given them by a local investigator hired by the embassy. It would obviously have been preferable for the memoranda to have identified this investigator by name. We know that the State Department routinely relies on hired investigators in the normal course of business, however, and, for whatever it may be worth, both of the vice consuls were vouching for the accuracy of the information provided in this instance.
The information provided was not without specifies. Given adequate time, I believe, the petitioner should have been able to counter at least some of the factual representations set forth in the memoran-da had those representations been untrue. Because of the peculiar procedural course this case took, the petitioner had more than ample time in which to seek evidence tending to show that the subpoena and the conviction were authentic after all — yet no such evidence was produced:
The decision in which the immigration judge initially found the subpoena and conviction to be forgeries was rendered at a hearing held on September 30, 1998. A copy of the Grencik memorandum had been sent to the petitioner more than six months earlier. The Board of Immigration Appeals remanded the case to the immigration court on February 15, 2002, moreover, and the hearing on remand was not held until August 14, 2003 — a full year and a half after the remand. Although it now appears that the remand was intended to be limited to consideration of an adjustment in the petitioner’s status, the petitioner’s own lawyer believed — and not without some reason — that the case had, in his words, been “reopened for all purposes.”
If the petitioner had been able to obtain relevant evidence on the document authenticity question prior to August of 2003, I know of no reason why it would not have been open to him to proffer such evidence at the hearing on remand. The petitioner’s failure to make such a proffer persuades me that the immigration judge did not err in adhering to his original finding that the petitioner had submitted forged documents. The forgeries were material, in my view, and I see no reason to suppose that their fabrication was not deliberate. I would therefore deny the petition for review.

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