Vladimirov v. Lynch ( 2015 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 10, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
VLADIMIR BORISOV VLADIMIROV,
Petitioner,
v. No. 13-9595
LORETTA E. LYNCH,
United States Attorney General,*
Respondent.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS
Submitted on the briefs:**
Nicolette Glazer, Law Offices of Larry R. Glazer, Century City, California, for
Petitioner.
Stuart F. Delery, Assistant Attorney General, Paul Fiorino, Senior Litigation
Counsel, Rebekah Nahas, Trial Attorney, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for Respondent.
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent in this
action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
Vladimir Vladimirov, a native of Bulgaria, seeks review of a Board of
Immigration Appeals’ (BIA) order of removal based on marriage fraud. The BIA
determined Vladimirov had sought to procure immigration benefits by fraud or
willful misrepresentation of a material fact, i.e., his sham marriage. See 8 U.S.C.
§§ 1182(a)(6)(C)(i), 1227(a)(1)(A). Much of the government’s evidence came from
written reports prepared by immigration officers and other written materials
contained in the agency’s files. Vladimirov claims the BIA’s reliance on such
materials denied him due process of law and without the disputed evidence the
government failed to make its case. Our resolution of this matter requires us to
examine the process due in immigration cases, particularly as it applies to the
consideration of evidence that might be excluded in other contexts. We deny the
petition for review.
I. BACKGROUND
Vladimirov entered the United States in February of 1996 as a nonimmigrant
visitor authorized to stay until August of 1996, but he did not depart. In July of
2005, he married Valentina Bakhrakh, a United States citizen. Bakhrakh filed
an I-130 petition for alien relative to assist her husband Vladimirov to adjust his
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immigration status. Based on the I-130 petition, Vladimirov filed an I-485
application to adjust status.
Shelly Randall, an officer with the United States Citizenship and Immigration
Services (USCIS) interviewed Vladimirov and Bakhrakh on March 6, 2006, and May
17, 2006, to ascertain the bona fides of the marriage. During the May 17 interview,
Vladimirov and Bakhrakh gave conflicting statements under oath regarding their
address, how long they had lived at the address, the number of bedrooms and
bathrooms it contained, how Vladimirov had proposed marriage to Bakhrakh, what
type of ring he presented, how and when they celebrated the wedding, when they
moved in together, their morning routine on the day of the interview, and what they
did the previous Sunday.
Based on those discrepancies, Officer Randall requested a site visit, which was
conducted on April 16, 2008, by USCIS Officer Janet Gibson. While at Vladimirov’s
home, Officer Gibson inquired about various personal items she observed in the
home. Vladimirov admitted they belonged to his former wife, rather than to
Bakhrakh. He also admitted he and Bakhrakh did not have a valid marriage and he
had lied to make it appear they did.
The next day, Officer Gibson met with Bakhrakh and her son to discuss the
evidence indicating the marriage was a sham and to explain the consequences of
filing a fraudulent I-130 petition for alien relative. At the conclusion of the meeting,
Bakhrakh withdrew the I-130 petition. Based on the withdrawal and the evidence
contradicting a bona fide marriage, Officer Randall denied Vladimirov’s I-485
3
application to adjust status. A Notice to Appear (NTA) was then issued to
Vladimirov, alleging he had “entered into a sham marriage with Valentina Bakhrakh
in order to obtain lawful permanent resident status.” Admin. R. at 425. According to
the NTA Vladimirov had sought to procure immigration benefits “by fraud or by
willfully misrepresenting a material fact, to wit: You filed an Application to Register
Permanent Residence or Adjust Status (Form I-485) based upon a Petition for Alien
Relative (Form I-130) filed on your behalf by Valentina Bakhrakh, based upon your
sham marriage.” Id.
Vladimirov requested a hearing before an immigration judge (IJ). At the
hearing, the government presented the testimony of Officer Randall, who read from
the agency file and provided information from Officer Gibson’s official reports.
Bakhrakh also testified, claiming she was threatened and coerced into withdrawing
the I-130 petition for alien relative. Vladimirov did not testify.
The IJ determined the government had met its burden to establish removability
based on marriage fraud and entered an order removing Vladimirov to Bulgaria.1
Vladimirov’s appeal to the BIA was dismissed.
1
The IJ also found Vladimirov removable for having remained in the United
States without authorization and for not being in possession of a valid visa.
Vladimirov did not challenge these grounds in his appeal to the BIA or raise them in
his briefs to this court. Consequently, they are waived. See Sidabutar v. Gonzales,
503 F.3d 1116, 1118 (10th Cir. 2007) (“[W]e generally assert jurisdiction only over
those arguments that a petitioner properly presents to the BIA.”); Krastev v. INS,
292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on appeal are deemed to be
waived.”).
4
Vladimirov now appeals for relief from this court arguing he was not given
notice of the conduct forming the basis of the charges of fraud or material
misrepresentation, and the government’s evidence was insufficient to prove those
charges. He further claims to have been denied due process in the administrative
proceedings.
II. STANDARDS OF REVIEW
We conduct a de novo review of purely legal questions. Fernandez-Vargas v.
Ashcroft, 394 F.3d 881, 884 (10th Cir. 2005), aff’d, 548 U.S. 30 (2006). The
government “has the burden of establishing by clear and convincing evidence that, in
the case of an alien who has been admitted to the United States, the alien is
[removable].” 8 U.S.C. § 1229a(c)(3)(A).
When reviewing a challenge to the quality and substantiality of the evidence,
“[a] court ‘does not ask itself whether it believes that the evidence’ establishes
removability by clear and convincing evidence, but rather whether the agency’s
‘judgment is supported by substantial evidence.’” Jimenez-Guzman v. Holder,
642 F.3d 1294, 1298 (10th Cir. 2011) (quoting Woodby v. INS, 385 U.S. 276, 282
(1966)). In other words, we look for substantial evidence indicating the government
met its affirmative burden to establish through clear and convincing evidence the
alien was removable. Jimenez-Guzman, 642 F.3d at 1299. If the record reveals such
evidence our review is concluded. “Agency findings of fact are conclusive unless the
record demonstrates that any reasonable adjudicator would be compelled to conclude
to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir. 2007) (internal
5
quotation marks omitted). We neither reweigh the evidence nor assess witness
credibility. Id. at 789.
The BIA issued a single-member decision. Therefore, “although we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the BIA, we
are not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2 (10th Cir. 2013) (internal
quotation marks, brackets and ellipsis omitted).
III. DISCUSSION
A. Notice
Vladimirov claims he was not informed of the basis for the charges of fraud or
willful misrepresentation and therefore did not have fair notice of them.
The NTA clearly charged him with entering into a sham marriage with
Bakhrakh, and further charged him with fraud and willful misrepresentation for filing
an I-485 application to adjust status based on the sham marriage. The charge of
marriage fraud was based on the fraudulent and willful misrepresentation Vladimirov
was in a bona fide marriage with a United States citizen, a material fact. This
provided a basis for removability. See Surganova v. Holder, 612 F.3d 901, 902, 904
(7th Cir. 2010) (affirming removal order on the ground alien “had procured the
adjustment in her immigration status through marriage fraud” (citing 8 U.S.C.
§§ 1182(a)(6)(C)(i) & 1227(a)(1)(A))); Abdulahad v. Holder, 581 F.3d 290, 295
(6th Cir. 2009) (stating aliens removable for marriage fraud under § 1227(a)(1)(A)
include those who committed fraud or willful misrepresentation referred to in
6
§ 1182(a)(6)(C)(i)). The NTA gave Vladimirov adequate notice of the “acts or
conduct alleged to be in violation of law” and the charges against him. 8 U.S.C.
§ 1229(a)(1); 8 C.F.R. § 1003.15(b).
B. Substantial Evidence
We also reject Vladimirov’s challenges based on the sufficiency of the
evidence. The fundamental question in assessing whether a couple entered into a
good-faith marriage in this context is whether they “intended to establish a life
together at the time they were married.” Ibrahimi v. Holder, 566 F.3d 758, 764-65
(8th Cir. 2009) (internal quotation marks omitted) (collecting cases). Evidence of the
parties’ commitment to the marriage may include documentation of their finances
and cohabitation, as well as birth certificates of any children born to the marriage and
other evidence considered pertinent. See id. at 765; 8 C.F.R. § 1216.5(e)(2).
Vladimirov wants our independent assessment of the evidence. He claims it
was insufficient to support a finding of marriage fraud because the couple’s
statements about their life together did not conflict.2 But “it is not our prerogative to
reweigh the evidence.” Neri-Garcia v. Holder, 696 F.3d 1003, 1009 (10th Cir. 2012)
(internal quotation marks omitted). Substantial evidence in the record supports the
BIA’s finding that the couple’s discrepant testimony about their life together
2
Vladimirov argues his statements made during the site visit were not
misrepresentations so they could not support the charge of making a willful
misrepresentation. But the operative material misrepresentation was his assertion
that he had entered into a bona fide marriage which entitled him to immigration
benefits.
7
indicated they were not in a valid marriage. This evidence, together with
Vladimirov’s admission to the invalidity of the marriage and Bakhrakh’s withdrawal
of the I-130 petition for alien relative, was sufficient to meet the government’s
burden.
He also argues the government failed to show the marriage was a sham at its
inception, rather than later, relying on statements he and Bakhrakh made claiming the
marriage “was real,” Admin. R. at 221. But in light of the evidence to the contrary,
the trier of fact did not err in discounting those statements, and we will not reassess
credibility determinations, see Sarr, 474 F.3d at 789.
Finally he tells us the evidence was insufficient to prove fraud or willful
misrepresentation. But by signing the I-485 application to adjust status based on his
sham marriage to a United States citizen, he attested to information he knew to be
false in order to obtain immigration benefits.
Substantial evidence supports the BIA’s conclusion that the government
established by clear and convincing evidence Vladimirov had engaged in fraud and
willful misrepresentation.
C. Due Process
Vladimirov apparently thinks immigration procedures must approximate
constitutional protections afforded criminal defendants. We have reached a different
conclusion, saying “[r]emoval proceedings are civil in nature, and the extensive
constitutional safeguards attending criminal proceedings do not apply,” Schroeck v.
Gonzales, 429 F.3d 947, 951 (10th Cir. 2005). Ultimately the question is what
8
process (in admitting and considering evidence) is due in this context. The answer is
enough to insure a fair and reliable result.
Vladimirov contends the agency violated his due process rights in four ways.
First, he was not afforded an opportunity to cross-examine Officer Gibson. Second,
the agency improperly admitted and considered the Form I-213 denying his I-485
application to adjust status because it contained “triple hearsay,” to wit: Officer
Randall’s testimony described reports filed by Officer Gibson, which in turn related
Vladimirov’s admission the marriage was a sham and Bakhrakh’s withdrawal of the
I-130 petition for alien relative. Third, the information contained in the Form I-213
denying his I-485 application could not be presumed to be reliable. Fourth, evidence
of Bakhrakh’s withdrawal of the I-130 petition should have been suppressed because
Officer Gibson threatened and coerced her.
“[T]he Due Process Clause protects an alien subject to a final order of
[removal], though the nature of that protection may vary depending upon status and
circumstance.” Zadvydas v. Davis, 533 U.S. 678, 693-94 (2001). “[W]hen facing
removal, aliens are entitled only to procedural due process, which provides the
opportunity to be heard at a meaningful time and in a meaningful manner.”
Schroeck, 429 F.3d at 952 (internal quotation marks omitted). An alien in removal
proceedings “shall have a reasonable opportunity to examine the evidence against
[him], to present evidence on [his] own behalf, and to cross-examine witnesses
presented by the Government.” Barrera-Quintero v. Holder, 699 F.3d 1239, 1248
9
(10th Cir. 2012) (internal quotation marks omitted); see also 8 U.S.C.
§ 1229a(b)(4)(B).
The right to cross-examine is not absolute, however. Where the alien has an
opportunity to challenge the testimony and where the absence of the witness from the
hearing “was legitimate and not contrived,” the “alien must establish not only error,
but prejudice.” Barrera-Quintero, 699 F.3d at 1249 (internal quotation marks
omitted). In Barrera-Quintero, the witness testified by telephone while here, Officer
Gibson did not testify at all. Rather, her “testimony” came from an official public
record created in the regular course of USCIS proceedings. See Renteria-Gonzalez v.
INS, 322 F.3d 804, 817 n.16 (5th Cir. 2002) (observing that even if the Fed. R. Evid.
applied, Form I-213 would “come within the public records exception to the hearsay
rule”). The agent who created the report “cannot be presumed to be an unfriendly
witness or other than an accurate recorder.” Barradas v. Holder, 582 F.3d 754, 763
(7th Cir. 2009) (internal quotation marks omitted). And the report contained not only
her observations but statements made by Vladimirov.
“‘Establishing an automatic right to cross-examine the preparers of such
documents would place an unwarranted burden on the [government].’” Id. (quoting
Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995)). Vladimirov contends the
“government must make a reasonable effort . . . to afford the alien a reasonable
opportunity to confront the witnesses against him or her,” Hernandez-Guadarrama v.
Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005) (internal quotation marks omitted). But
he has cited no Tenth Circuit authority for such a rule. And we note that in
10
Hernandez-Guadarrama, the witness was not a government agent, but an illegal alien
who “was not, by any means, a disinterested witness.” Id. at 682. Vladimirov’s
other authorities cited for the proposition that an affidavit is disallowed unless the
government shows it could not procure a witness’s appearance at the hearing are
inapposite. In those cases, the respective courts deemed the documents and
non-testifying witnesses to be unreliable. See Pouhova v. Holder, 726 F.3d 1007,
1012-15 (7th Cir. 2013) (rejecting government’s proffered documents as unreliable
because one statement was taken in English without an interpreter and the other
(a Form I-213) was written seven years after the conversation it purported to report);
Hassan v. Holder, 604 F.3d 915, 925-28 (6th Cir. 2010) (assuming foreign embassy
documents containing hearsay statements were admissible but holding the documents
were not reliable; the absence of a crucial document should have been construed
against the government as the party with the burden of proof); Banat v. Holder,
557 F.3d 886, 890-93 (8th Cir. 2009) (stating although the Fed. R. Evid. are not
controlling, the alien’s due process rights were abridged by the IJ’s reliance on a
State Department document stating a letter produced by the alien was fabricated);
cf. Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010) (granting petition based on
IJ’s refusal to comply with alien’s request to subpoena her husband to challenge his
statements indicating marriage fraud); Rosendo-Ramirez v. INS, 32 F.3d 1085, 1086,
1088-89 (7th Cir. 1994) (holding Form I-213 was admissible at the hearing where the
authoring border patrol agent testified).
11
Officer Gibson’s absence from the hearing was legitimate and not contrived.
Her observations were duly reported, as required. They are not per se inadmissible,
but better contrary evidence might have carried the day. The same is true of her
reports of Vladimirov’s statements. He chose not to testify, relinquishing a clear
opportunity to have explained the statements he made to Officer Gibson or denied
making them. Again, other evidence might ultimately be more persuasive, but
imperfect evidence may still inform the debate. And forgoing an opportunity to “set
things right” may serve to enhance less than perfect proofs.
Evidence is admissible in a removal hearing as long as it “is probative and . . .
its use is fundamentally fair.” Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir. 1993).
The other circuits also apply these precepts to immigration proceedings. See Arias-
Minaya v. Holder, 779 F.3d 49, 54 (1st Cir. 2015); Aslam v. Mukasey, 537 F.3d 110,
114 (2d Cir. 2008); Fei Yan Zhu v. Attorney Gen. U.S., 744 F.3d 268, 273 (3rd Cir.
2014); Djadjou v. Holder, 662 F.3d 265, 276-78 (4th Cir. 2011); Renteria-Gonzalez,
322 F.3d at 817; Alexandrov v. Gonzales, 442 F.3d 395, 404 (6th Cir. 2006); N.L.A.
v. Holder, 744 F.3d 425, 436 (7th Cir. 2014); Kim v. Holder, 560 F.3d 833, 836 (8th
Cir. 2009); Indrawati v. U.S. Attorney Gen., 779 F.3d 1284, 1299 (11th Cir. 2015);
cf. Hernandez-Guadarrama, 394 F.3d at 681 (stating the test for admissibility of an
affidavit “is whether the statement is probative and whether its admission was
fundamentally fair. Thus, we require that the government must make a reasonable
effort . . . to afford the alien a reasonable opportunity to confront the witnesses
against him or her” (internal quotation marks omitted)).
12
“[Al]though the hearsay nature of evidence certainly affects the weight it is
accorded, it does not affect its admissibility in immigration removal proceedings.”
Dia v. Ashcroft, 353 F.3d 228, 254 (3d Cir. 2003) (en banc) (brackets and internal
quotation marks omitted). Where hearsay evidence is “seemingly reliable,” it should
not be rejected solely because it is hearsay. Id. Here, Officer Gibson’s evidence was
probative and there is no indication that its use was fundamentally unfair.
Vladimirov next asserts the agency improperly received and relied on the
Form I-213 denying his I-485 application to adjust status. He claims the evidence
was inadmissible because it contained unreliable “triple hearsay.” “[E]videntiary
rules are not strictly applied at immigration hearings.” Bauge, 7 F.3d at 1543.
“Hearsay is regularly used in administrative adjudication, and for that matter criminal
sentencing. [The Supreme Court has] rejected the argument that the due process
clause creates for administrative adjudication the same constitutional requirement of
live testimony that the confrontation clause establishes for criminal trials.” Malave,
610 F.3d at 487 (citing Richardson v. Perales, 402 U.S. 389, 402 (1971)).
Vladimirov further objected to the Form I-213 denial of his I-485 application
because it was prepared in anticipation of litigation so was not entitled to a
presumption of reliability.3 “Form I-213 is a presumptively reliable administrative
3
Vladimirov characterizes the presumption as an “absolute presumption” or an
irrebuttable presumption. Aplt. Opening Br. at 31, 32. We need not address this
argument because there is no indication the BIA treated it as an irrebuttable
presumption. Indeed, the BIA considered Bakhrakh’s testimony explaining why she
(continued)
13
document.” Gutierrez-Berdin v. Holder, 618 F.3d 647, 653 (7th Cir. 2010); accord
Maldonado v. Holder, 763 F.3d 155, 158 n.1 (2d Cir. 2014); Espinoza, 45 F.3d at
310-11. Where there is evidence of unreliability, however, information contained in
a Form I-213 cannot be presumed true. Hernandez-Guadarrama, 394 F.3d at 680-81
& n.9. In an attempt to demonstrate the evidence presented through Officer Randall
was unreliable, Vladimirov characterizes her testimony as “evasive, contradictory,
and lacking in detail.” Aplt. Opening Br. at 29. On the contrary, our review of the
hearing transcript reveals Officer Randall’s admission to being unable to
independently remember an interview occurring more than four years previously, but
nothing in her testimony suggested her observations, conclusions, or reports of
statements made to her were not reliably recorded. “There is no indication that
Officer [Randall’s] [report] was carelessly or maliciously drafted or was intended to
serve as anything other than an administrative record.” Barradas, 582 F.3d at 763.
Vladimirov also argues the Form I-213 was unreliable because it reported the
couple made statements that contained discrepancies when, in fact, there were no
discrepancies. We have already rejected this argument. Vladimirov therefore has not
rebutted the presumption of reliability, nor did he demonstrate any inaccuracy in the
Form I-213, so the BIA appropriately considered it. See Gutierrez-Berdin, 618 F.3d
withdrew the I-130 petition for alien relative. Vladimirov did not testify or present
other evidence concerning his statements.
14
at 653 (holding the IJ properly considered the Form I-213 “[s]ince petitioner did not
demonstrate any inaccuracy in its contents”).
Finally, we consider Vladimirov’s contention that Bakhrakh was threatened
and coerced to withdraw the I-130 petition for alien relative. According to
Bakhrakh’s testimony, Officer Gibson confronted her with Vladimirov’s confession
to having lied about the bona fides of the marriage. In addition, Officer Gibson
informed her if she did not tell the truth about the marriage, she could be fined or
jailed. Bakhrakh testified to thereby having felt coerced to withdraw the I-130
petition.4
BIA precedent requires the movant to establish the information sought to be
excluded is erroneous, or the evidence was obtained by coercion or duress. Matter of
Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988). If the movant meets this burden, the
government will “assume the burden of justifying the manner in which it obtained the
evidence.” Id. Here, citing Barcenas, the BIA determined Vladimirov had failed to
meet his burden, and we agree. Bakhrakh did not file a complaint against Officer
Gibson or attempt to reinstate the I-130 petition, despite her serious allegation of
coercion. Moreover, as the BIA observed, “informing someone of the legal
4
On appeal, Vladimirov asserts, without citation to the record, “Officer Gibson
interrogated Ms. Bakhrakh in the presence of her abusive 27 year old [sic] son and
permitted him to threaten and coerce her.” Aplt. Opening Br. at 34. This assertion is
not supported by the record. He also tells us Bakhrakh’s attorney was not notified of
the interview, but he has not provided any authority for a right to such notification.
Consequently, we do not address these claims.
15
consequences of marriage fraud and perjury is not coercive.” Admin. R. at 5 (citing
18 U.S.C. § 1001(a)(2) (whoever “makes any materially false, fictitious, or
fraudulent statement or representation [in a matter before the government] shall be
fined under this title [and/or] imprisoned not more than 5 years”)).
IV. CONCLUSION
For the reasons stated, the petition for review is denied.
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