Gaitan-Cortez v. Holder , 369 F. App'x 305 ( 2010 )

09-3563-ag
Gaitan-Cortez v. Holder
BIA
Montante, IJ
A088 186 070
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16 th day of March, two thousand and ten.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Circuit Judge,
9 KIMBA M. WOOD, *
10 District Judge. **
11 _________________________________________
12
13 JOSE AMILCAR GAITAN-CORTEZ,
14 Petitioner,
15
16 v. 09-3563-ag
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
*
The Hon. Kimba M. Wood, Senior Judge of the United
States District Court for the Southern District of New York,
sitting by designation.
**
The Hon. Rosemary S. Pooler, originally assigned to
this panel, did not participate in the consideration of this
appeal. The remaining two members of th panel, who are in
agreement, have determined this matter. See Second Circuit
Internal Operating Procedure E(b); 28 U.S.C. § 46(d); United
States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
1 FOR PETITIONER: Jose Amilcar Gaitan-Cortez, pro se,
2 West New York, NJ.
3
4 FOR RESPONDENT: Jessica Segall, Trial Attorney,
5 Office of Immigration Litigation
6 (Tony West, Assistant Attorney
7 General; Leslie McKay, Assistant
8 Director, Office of Immigration
9 Litigation, on the brief), United
10 States Department of Justice,
11 Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED, that the petition for review
16 is DENIED.
17 Petitioner Jose Amilcar Gaitan-Cortez, a native and
18 citizen of El Salvador, seeks review of the July 24, 2009,
19 order of the BIA affirming the August 4, 2008, decision of
20 Immigration Judge (“IJ”) Philip J. Montante, Jr., ordering him
21 removed to El Salvador. In re Jose Amilcar Gaitan Cortez, No.
22 A 088 186 070 (B.I.A. July 24, 2009), aff’g No. A 088 186 070
23 (Immig. Ct. Buffalo, N.Y. Aug. 4, 2008). We assume the
24 parties’ familiarity with the underlying facts of the case,
25 procedural history, and issues for review on appeal.
26 Under the circumstances of this case, this Court reviews
27 the decision of the IJ as supplemented by the BIA. See Yan
28 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
2
1 the agency’s factual findings under the substantial evidence
2 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS,
3 494 F.3d 281, 289 (2d Cir. 2007). The Court reviews de novo
4 questions of law and the application of law to undisputed
5 fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
6 Due process in removal proceedings requires “notice” to
7 the alien “of the nature of the charges and a meaningful
8 opportunity to be heard,” Pierre v. Holder, 588 F.3d 767, 776
9 (2d Cir. 2009) (internal quotation mark omitted), and that the
10 proceedings be otherwise fundamentally fair, Xiao Ji Chen v.
11 U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir. 2006),
12 vacated on other grounds, 471 F.3d 315 (2d Cir. 2006); see
13 also Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).
14 Even where an alien shows that due process was denied, he can
15 prevail only if he shows “some cognizable prejudice fairly
16 attributable to the challenged process.” Garcia-Villeda v.
17 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal quotation
18 marks omitted).
19 In this case, we conclude that the IJ did not violate
20 Gaitan-Cortez’s due process rights by failing to provide him
21 with an opportunity to cross-examine the Border Patrol agent
22 who prepared his Form I-213 Record of Deportable/Inadmissible
3
1 Alien, on which the IJ based his conclusion that Petitioner
2 was removable. We have held that “a Form I-213 is
3 presumptively reliable and can be admitted in deportation
4 proceedings without giving the alien the opportunity to cross-
5 examine the document’s author, at least when the alien has put
6 forth no evidence to contradict or impeach the statements in
7 the report.” See Felzcerek v. INS, 75 F.3d 112, 117 (2d Cir.
8 1996). Although Petitioner argues that he was not afforded an
9 opportunity to present such evidence, he was served with the
10 I-213 form at his first hearing, in September 2007. At his
11 second hearing, nearly a year later in August 2008, the IJ
12 asked Petitioner’s attorney if he had “any evidence . . . to
13 even suggest that the contents of the [Form I-213] did not
14 relate to [Petitioner] or that the information is erroneous or
15 that it was the result of coercion or duress?” App. 86.
16 Petitioner’s attorney responded that he did not, but explained
17 that he had filed a Freedom of Information Act (“FOIA”)
18 inquiry to discover whether Gaitan-Cortez had previously filed
19 any applications for legal immigration status. However, when
20 the IJ asked if he had any evidence of the inquiry, his
21 attorney replied that he did not. Therefore, Petitioner’s
22 assertion to this Court that the IJ did not allow him an
23 opportunity to come forward with evidence to rebut the
4
1 contents of the I-213 is without merit. The assertion that
2 Petitioner’s attorney challenged the factual accuracy of the
3 I-213's contents is similarly unsupported. See, e.g.,
4 Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (unsworn
5 statements of an attorney are not evidence). Petitioner
6 presented no actual evidence that he had ever filed any
7 application for relief, or that his attorney had filed the
8 FOIA request as he claimed. Accordingly, Gaitan-Cortez’s
9 assertion that the IJ violated his due process rights fails.
10 We have carefully considered Petitioner’s remaining
11 arguments and conclude that they are without merit. For the
12 foregoing reasons, the petition for review is DENIED.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
5