Brito de Figueroa v. Ashcroft , 113 F. App'x 413 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2593
MARIA BRITO DE FIGUEROA ET AL.,
Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Campbell, Circuit Judge,
Selya, Circuit Judge.
Raymond Sanchez Maceira on brief for petitioners.
Peter D. Keisler, Assistant Attorney General, Emily Anne
Radford, Assistant Director, Office of Immigration Litigation, and
Thomas K. Ragland, Attorney, U.S. Department of Justice, Civil
Division, on motion for summary affirmance, for respondent.
October 28, 2004
Per Curiam. The government has moved for summary
affirmance of the Board of Immigration Appeals ("BIA") decision
affirming without opinion the decision of the immigration judge
("IJ") finding appellant Maria Brito de Figueroa ("Brito") and her
four children deportable. Appellants challenge the IJ's
determination that Brito was deportable pursuant to Section
241(a)(1)(A) of the Immigration and Nationality Act ("INA") for
having obtained her resident status through a fraudulent marriage
to Miguel Angel Figueroa-Burgos ("Figueroa").
Rather than attacking the IJ's decision directly,
appellants argue that the BIA "failed to follow its own regulatory
procedure when it issued the affirmance without opinion (AWO) in
this case." Appellants' Brief at 2. Appellants appear to argue
that the AWO procedure was inappropriate here because this case
does not satisfy the following criteria: "that the result reached
by the IJ was correct [and] that any errors in the decision were
harmless or non-material." 8 C.F.R. § 1003.1(e)(4). Specifically,
they claim the following errors by the IJ: consideration of hearsay
and other unreliable evidence, failure to consider certain evidence
submitted by appellants, and failure to make findings supporting
his conclusion that the marriage was fraudulent. Appellants argue
that by affirming without opinion an erroneous decision, the BIA
violated appellants' constitutional right to due process of law.
We review appellants' due process claims de novo. See
Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004); Aguilar-Solis v. INS,
168 F.3d 565, 568 (1st Cir. 1999). "The Federal Rules of Evidence
do not apply in INS proceedings, but the less rigid constraints of
due process impose outer limits based upon considerations of
fairness and reliability." Yongo, 355 F.3d at 30. In this case the
record provides no support for appellants' claims that the IJ
violated considerations of fairness and reliability.
The BIA issued an AWO as to each appellant, dated October
22, 2003. Each AWO stated in its entirety that "The Board affirms,
without opinion, the result of the decision below. The decision
below is, therefore, the final agency determination. See 8 C.F.R.
§ 1003.1(e)(4)." We have confronted this procedure before. We
have said:
The AWO procedure allows affirmance by a
single Board member, rather than the usual
three-member review. The IJ's opinion is
affirmed without further analysis, with the
statement, "The Board affirms, without
opinion, the result of the decision below." 8
C.F.R. § 3.1(e)(4)(B)(ii). The AWO procedure
is available when a Board member determines
that the result reached by the IJ was correct,
that any errors in the decision were harmless
or non-material, and that either the issue is
squarely controlled by precedent and does not
involve a novel fact pattern, or that the
factual and legal questions raised are so
insubstantial that three-member review is not
warranted. Id. § 3.1(e)(4)(A)-(B).
El Moraghy v. Ashcroft, 331 F.3d 195, 205-06 (1st Cir. 2003).
We recently rejected a claim that the AWO procedure
violates due process. See Albathani v. INS, 318 F.3d 365, 377 (1st
Cir. 2003)(reasoning that intelligent review is possible without an
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opinion by the BIA because "[t]he courts will continue to have the
IJ's decision and the record upon which it is based available for
review"). To the extent that appellants are arguing that specific
errors by the IJ resulted in due process violations, we find those
claims to be without merit.
I. Figueroa's Sworn Statements
Appellants object to the IJ's reliance upon Figueroa's
written sworn statements (Exhibits 3 and 6) on the ground that they
were not given voluntarily and were signed under duress. This
argument is likely waived. After all, the appellants did not
object at the immigration hearing to the admission of those
statements. And even if the appellants have not waived their
present objection, the record provides no support for its premise.
The IJ considered the argument that the sworn statements were not
given voluntarily and rejected it based upon the testimony of
Figueroa and the INS officers present when the statements were
given. Such findings of fact and credibility calls are reviewed
under a "deferential 'substantial evidence' standard." Mendes v.
INS, 197 F.3d 6, 13 (1st Cir. 1999). Our review of the record
demonstrates that the standard is easily satisfied in this case.
II. Hearsay Evidence
Appellants claim that the IJ erred by relying upon
testimony of an INS agent "based on speculations and on comments
allegedly made by parties not available to be cross-examined." The
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testimony at issue corroborated Figueroa's sworn statement that he
had been in a common law marriage with Alicia Santiago-Gonzalez for
nine years. Such testimony was elicited by appellants' own
attorney, however, and any objection has therefore been waived. See
Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d 618, 625 (1st
Cir. 1988). Even absent a waiver, any error would have been
harmless in view of the IJ's reliance upon Figueroa's sworn
statement that he had been paid by Brito to marry her so that she
could obtain residency papers.
III. Failure to Consider Evidence
Appellants claim that the IJ failed to consider evidence
submitted by them which supported a finding of a bona fide
marriage. Due process does not required the IJ specifically to
mention each piece of evidence that is presented. See Kalitani v.
Ashcroft, 340 F.3d 1, 5 (1st Cir. 2003). Moreover, the record in
this case indicates that the IJ specifically addressed the
documentary evidence submitted by respondents and articulated his
reasons for not finding it persuasive. Appellants' claim that the
IJ failed to consider the evidence they submitted is belied by the
record.
IV. Failure to Point to Evidence Supporting Conclusion
that Marriage was Fraudulent
The claim that the IJ failed to point to evidence
supporting his conclusion that the marriage was fraudulent is
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belied by the IJ's lengthy and detailed decision. The IJ
specifically discussed the evidence on which he relied in finding
that neither Brito's nor Figueroa's testimony was credible.
Conversely, the IJ found that the INS Officers' "narration of the
events surrounding the statements taken from [Figueroa] was
credible." Therefore, the IJ relied upon Figueroa's sworn
statements that he and Brito had never lived together as husband
and wife and that he had married her because he was offered payment
to do so in order to aid Brito in obtaining residency papers. The
IJ sufficiently identified and discussed the evidence on which he
relied in reaching his decision.
We conclude that the record does not support appellants'
claims of error by the IJ. Therefore, the BIA's decision summarily
affirming his decision must be upheld. Accordingly, the petition
for review is denied. See 1st Cir. R. 27(c).
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