The government objected to the documents as not properly certified under the authentication standards for foreign public documents set forth by 8 C.F.R. § 287.6(c), and thus inadmissible. The IJ, acknowledging our holding in Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam), that a foreign public document may be authenticated in an immigration proceeding either under § 287.6(c) or through "any recognized procedure," asked Vatyan's counsel whether the documents had "been authenticated in any other way?" When Vatyan's counsel responded that Vatyan would authenticate the documents through his own testimony, the IJ rejected this proposed authentication method and granted the government's motion to exclude the documents, stating that "they have not been properly authenticated either under [ 8 C.F.R. § 287.6] or in any other recognized manner under the Federal Rules of Civil Procedure as is outlined in Khan v. INS, 237 F.3d 1143.

Sethi laid a foundation for each of the documents and provided original copies to the court. While an IJ may require a petitioner to authenticate documents in immigration proceedings through "any recognized procedure, such as those required by [DHS] regulations or by the Federal Rules of Civil Procedure," Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam) (internal quotation marks omitted), the IJ identified no regulation or procedure justifying the exclusion of original documents for which a foundation was laid. As such, the IJ erred in excluding the documents for lack of authentication.

Id. The Seventh Circuit quoted Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001), in concluding that it was error for the IJ to exclude the document, because the IJ expressly stated that it was for lack of corroborating evidence that he found Georgis not credible and denied her asylum application. Georgis, 328 F.3d at 969.

We review de novo the exclusion of evidence on legal grounds. SeeKhan v. INS, 237 F.3d 1143, 1144 (9th Cir.2001) (per curiam). We grant in part and deny in part the petition for review.

Letter Brief at 4. In so doing, it cited with approval Khan v. INS, 237 F.3d 1143 (9th Cir. 2001), and Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003), which held that "[i]t was error to exclude . . . official records based solely on the lack of consular certification." Khan, 237 F.3d at 1144.

On the other hand, "if an administrator terminates continuing benefits as a result of arbitrary and capricious conduct, the claimant should continue receiving benefits until the administrator properly applies the plan's provisions." Pannebecker, 542 F.3d at 1221 (citing Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1143, 1163 (9th Cir. 2001)). The Ninth Circuit reasoned that "[t]his distinction in remedies makes perfect sense, as the improper termination in the latter case was the result of arbitrary and capricious procedures, and therefore benefits could not have been terminated by those procedures."

We have repeated this pattern of citing our pre-amendment caselaw in appeals involving foreign documents, disregarding the regulation's mandatory language and instead noting fairness concerns: "[r]equiring an asylum petitioner to obtain a certification from the very government he claims has persecuted him or has failed to protect him from persecution would in some cases create an insuperable barrier to admission of authentic documents." Vatyan v. Mukasey, 508 F.3d 1179, 1183 (9th Cir. 2007); see also Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam) (quoting Iran, 656 F.2d at 472 n.8) (holding that § 287.6(b) is not mandatory for foreign official records). The Government's position on § 287.6's seemingly mandatory language has been inconsistent.

We have held, however, that documents submitted in immigration proceedings “may be authenticated ... through any ‘recognized procedure, such as those required by [Immigration and Naturalization Service (“INS”)] regulations or by the Federal Rules of Civil Procedure.’ ” Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.2001) (per curiam) (quoting Espinoza v. INS, 45 F.3d 308, 309–10 (9th Cir.1995) ). “The procedure specified in ‘8 C.F.R. § 287.6 provides one, but not the exclusive, method.’ ” Id. (quoting Iran v. INS, 656 F.2d 469, 472 n. 8 (9th Cir.1981) ).

Obviously a document must be authentic rather than a forgery to be admissible in evidence. But “documents may be authenticated in immigration proceedings through any recognized procedure,” Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir.2003), quoting approvingly Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.2001); see also Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir.2006); Gen Lin v. Attorney General, 700 F.3d 683, 687 (3d Cir.2012); Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir.2007); Yongo v. INS, 355 F.3d 27, 31 (1st Cir.2004). Some of the recognized procedures are set forth in Article IX of the Federal Rules of Evidence, where we read that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a).

The procedure specified in 8 C.F.R. § 287.6 provides one, but not the exclusive method.” Khan v. INS, 237 F.3d 1143, 1144 (9th Cir.2001) (per curiam) (internal quotation marks and citations omitted). Thus, the IJ erred by refusing to allow Jiang to authenticate the foreign documents through his own testimony.