Beatriz Eugenia Zuluaga Hincapie v. U.S. Attorney General ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11267
Non-Argument Calendar
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Agency No. A079-377-772
BEATRIZ EUGENIA ZULUAGA HINCAPIE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 31, 2015)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Beatriz Zuluaga Hincapie, a native and citizen of Colombia proceeding pro
se, seeks review of the Board of Immigration Appeals’ (“BIA”) final order
affirming the Immigration Judge’s (“IJ”) finding that she was removable for
procuring documentation by fraud and not being in possession of valid
documentation at the time of entry or adjustment of status, and for procuring
documentation by entering into a fraudulent marriage. First, Zuluaga Hincapie
challenges the IJ’s and BIA’s admission of, and reliance upon, three sworn
statements. In particular, she argues that: (1) the three statements were not
reliable; (2) the statement of her ex-husband was not properly admitted as rebuttal
evidence; and (3) the admission of the statements violated her due process rights to
examine the evidence and cross-examine the witnesses against her. Further, she
contends that substantial evidence did not support the IJ’s and BIA’s conclusion
that she entered into a fraudulent marriage in order to obtain an immigration
benefit. For ease of reference, we will address each point in turn.
I.
We review our own subject matter jurisdiction de novo. Gonzalez-Oropeza
v. U.S. Att’y Gen, 321 F.3d 1331, 1332 (11th Cir. 2003). Pursuant to the
Immigration and Nationality Act (“INA”), we may not review a final order of
removal unless “the alien has exhausted all administrative remedies available to the
alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner has failed to exhaust her
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administrative remedies by not raising an issue in her notice of appeal or appeal
brief filed with the BIA, we lack jurisdiction to consider the claim. Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006). To
properly raise a claim before the BIA, the petitioner must give the agency a “full
opportunity” to consider the petitioner’s claim and compile a record adequate for
judicial review. Id. at 1250 (quotations omitted). The petitioner must mention the
issue and discuss its merits or at least challenge the underlying factual basis for the
IJ’s decision. See Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006).
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). When the BIA explicitly agrees with the
findings of the IJ, we will review the decision of both the BIA and the IJ as to
those issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).
Additionally, we review constitutional challenges, including alleged due
process violations, de novo. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th
Cir. 2010).
The Fifth Amendment right to due process applies to non-citizens in removal
proceedings. Reno v. Flores, 507 U.S. 292, 306, 113 S. Ct. 1439, 1449 (1993). “In
order to establish a due process violation, an alien must show that [she] was
deprived of liberty without due process of law, and that the asserted error caused
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[her] substantial prejudice.” Gonzalez-Oropeza, 321 F.3d at 1333 (citation
omitted). “To show substantial prejudice, an alien must demonstrate that, in the
absence of the alleged violations, the outcome of the proceeding would have been
different.” Lapaix, 605 F.3d at 1143. Although the Federal Rules of Evidence do
not apply in immigration proceedings, Garces v. U.S. Att’y Gen., 611 F.3d 1337,
1347 (11th Cir. 2010), to safeguard due process rights, the INA provides that an
alien shall have, among other things, “a reasonable opportunity to examine the
evidence against the alien.” 8 U.S.C. § 1229a(b)(4)(B).
Finally, the rules governing immigration court procedure state that the
“requirements set forth in [the] manual are binding on the parties who appear
before the Immigration Courts, unless the Immigration Judge directs otherwise in a
particular case.” U.S. Dep’t of Justice, Exec. Office for Immig. Rev., Immigration
Court Practice Manual (“Practice Manual”), § 1.1(b). In pertinent part, the
Practice Manual states that “[f]or individual calendar hearings involving non-
detained aliens, filings must be submitted at least fifteen (15) calendar days in
advance of the hearing.” Id. § 3.1(b)(ii)(A). However, this rule does not apply to
“exhibits or witnesses offered solely to rebut and/or impeach.” Id.
As an initial matter, we lack jurisdiction to consider Zuluaga Hincapie’s
argument that the IJ erred in determining that the three sworn statements were
unreliable because she failed to exhaust her administrative remedies as to this
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claim. See Amaya-Artunduaga, 463 F.3d at 1250-51. Zuluaga Hincapie did not
argue on appeal to the BIA that the three statements were not genuine or that the IJ
incorrectly found that they bore sufficient indicia of reliability. Accordingly, we
dismiss the petition for review as to this argument.
Taking Zuluaga Hincapie’s remaining arguments in turn, we find that the IJ
properly admitted her ex-husband’s sworn statement as rebuttal evidence. At the
removal hearing, Zuluaga Hincapie testified, among other things, that her ex-
husband was not gay and that they had not married in order for her to gain an
immigration benefit. Her ex-husband’s sworn statement directly contradicted her
testimony because he stated that (1) he was gay; (2) they had never consummated
their marriage; and (3) they had married so that she could remain in the United
States. Because the Government introduced the statement in order to impeach
Zuluaga Hincapie, it was not required to file the statement 15 days prior to the
hearing, and the IJ did not commit any error by admitting the statement. See
Practice Manual, § 3.1(b)(ii)(A).
Moreover, Zuluaga Hincapie has failed to demonstrate that the IJ violated
her due process right to examine the evidence against her. Two of the three sworn
statements were filed by the Government and placed in the administrative record
18 months before the removal hearing, and it was apparent from the record that
Zuluaga Hincapie had the opportunity to view them. Furthermore, while her
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former husband’s sworn statement was not filed until the day of the hearing,
Zuluaga Hincapie has not demonstrated how having prior access to the statement
would have changed the outcome of her proceedings. Thus, she has failed to
establish that she was substantially prejudiced. See id.; Gonzalez-Oropeza, 321
F.3d at 1333.
Likewise, Zuluaga Hincapie has not established that she was substantially
prejudiced by the IJ’s admission of the three sworn statements. Importantly,
Zuluaga Hincapie did not make a timely objection to the first two statements at her
removal hearing, and thus, she forfeited her objection to the admission of that
evidence. Ocasio v. Ashcroft, 375 F.3d 105, 107-08 (1st Cir. 2004). The third
sworn statement by her ex-husband merely corroborated these two properly-
admitted statements. Even if the Court assumes that admission of her ex-
husband’s affidavit was a due process violation, Zuluaga Hincapie has not shown
that the outcome of the proceeding would have been different in light of the record
before the IJ and BIA. See Indrawati v. U.S. Att’y Gen., No. 13-12071, 2015 WL
871709, at *11 (11th Cir. Mar. 2, 2015).
II.
We review factual determinations, including findings of removability, under
the substantial evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th
Cir. 2004) (en banc). The substantial evidence test requires us to “view the record
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evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Id. at 1027. We must affirm the
BIA’s decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1254-55 (11th Cir. 2006) (quotations omitted). Accordingly, in order for us
to conclude that a finding of fact should be reversed, we must determine that the
record “compels” reversal. Id. at 1255 (quotations omitted). The Government
bears the initial burden of establishing, by clear and convincing evidence, that an
alien is removable. 8 U.S.C. § 1229a(c)(3)(A).
Substantial evidence supports the IJ’s and the BIA’s conclusion that Zuluaga
Hincapie was removable because she entered into a fraudulent marriage with her
ex-husband for the purpose of obtaining an immigration benefit. The evidence in
the record established that Zuluaga Hincapie’s ex-husband was gay and in a
relationship with her brother, and Zuluaga Hincapie and her ex-husband married in
order to allow her to remain in the United States once her visa expired. As such,
the IJ’s and BIA’s conclusion was based on substantial evidence, and the record
does not “compel” a conclusion contrary to that reached by the BIA and the IJ. See
Ruiz, 440 F.3d at 1255. Accordingly, we deny Zuluaga Hincapie’s petition for
review as to this claim.
PETITION DISMISSED, IN PART, AND DENIED, IN PART.
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