Gupta v. Lynch ( 2016 )

15-2167
Gupta v. Lynch
BIA
Chew, IJ
A098 235 582
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 22nd day
of September, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
SANDIP GUPTA,
Petitioner,
v. 15-2167
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Alexander G. Rojas, Barst Mukamal &
Kleiner LLP, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Holly M.
Smith, Senior Litigation Counsel;
Edward C. Durant, Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DISMISSED.
Petitioner Sandip Gupta, an alleged native and citizen of India,
seeks review of a June 18, 2015, decision of the BIA, affirming a
November 1, 2013, decision of an Immigration Judge (“IJ”) ordering
Gupta removed to India. In re Sandip Gupta, No. A098 235 582 (B.I.A.
June 18, 2015), aff’g No. A098 235 582 (Immig. Ct. N.Y.C. Nov. 1,
2013). We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
I. Scope and Standards of Review
We generally lack jurisdiction to review a final order of
removal against an alien, who is removable by reason of having been
convicted of a crime involving moral turpitude. 8 U.S.C.
§ 1252(a)(2)(C), (D). However, we retain jurisdiction “to
determine whether we have jurisdiction” — in this case, to determine
whether Gupta “is in fact an alien whose petition is unreviewable
under § 1252(a)(2)(C).” Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir.
2005). “If [Gupta] is a United States citizen, then
§ 1252(a)(2)(C) cannot bar his petition.” Id.
Clear and convincing evidence that the petitioner was born
abroad creates a presumption of alienage. See Matter of
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Rodriguez-Tejedor, 23 I. & N. Dec. 153, 164 (B.I.A. 2001); Matter
of Tijerina-Villarreal, 13 I. & N. Dec. 327, 330-31 (B.I.A. 1969).
The petitioner may rebut that presumption only by proving, by “a
preponderance of the credible evidence,” that he is a citizen
notwithstanding his foreign birth. Rodriguez-Tejedor, 23 I. & N. Dec.
at 164; Tijerina-Villarreal, 13 I. & N. Dec. at 330.
Under the circumstances of this case, we review both the IJ’s
and BIA’s decisions regarding Gupta’s alienage “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524,
528 (2d Cir. 2006). We review the IJ’s factual findings under the
substantial evidence standard, treating them as “conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). We have observed, however,
that substantial evidence review becomes “more demanding” in the
removability context in light of the Government’s burden of proof.
Francis v. Gonzales, 442 F.3d 131, 138-39 (2d Cir. 2006). To set
aside the agency’s determination, “we must find that any rational
trier of fact would be compelled to conclude that the proof did not
rise to the level of clear and convincing evidence.” Id.
“The Federal Rules of Evidence do not apply in removal
proceedings; rather, ‘[e]vidence is admissible provided that it does
not violate the alien’s right to due process of law.’” Zerrei v.
Gonzales, 471 F.3d 342, 346 (2d Cir. 2006) (quoting Zhen Nan Lin v.
U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d Cir. 2006)). “The
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standard for due process is satisfied if the evidence ‘is probative
and its use is fundamentally fair,’ fairness in this context being
‘closely related to the reliability and trustworthiness of the
evidence.’” Id. (quoting Zhen Nan Lin, 459 F.3d at 268).
II. Discussion
Gupta’s claim of citizenship turns on whether or not he was born
in the United States. We conclude that substantial evidence
supports the agency’s determination that the Government established
“by clear, unequivocal, and convincing evidence” that Gupta was not
born in the United States. Woodby v. INS, 385 U.S. 276, 286 (1966).
The agency reasonably relied on Gupta’s social security card
application, his Form I-213, and Agent Doherty’s testimony in support
of that determination.
Notwithstanding Gupta’s arguments to the contrary, the agency
did not place excessive weight on Gupta’s social security card
application, which listed his place of birth as Calcutta, India.
Gupta conceded that the signature on the application was his, and
the agency reasonably credited the concession of foreign birth in
the application given that Gupta was eighteen years old and could
read English when he signed it. See Siewe v. Gonzales, 480 F.3d 160,
168-69 (2d Cir. 2007) (noting that we will not find error where an
inference drawn by the IJ “is tethered to the evidentiary record”).
The agency also did not err by admitting and crediting Agent
Doherty’s testimony that Gupta had stated that he was born outside
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the United States during an interview regarding Gupta’s submission
of fraudulent school records in support of his passport renewal
application. See Zerrei, 471 F.3d at 346. Gupta’s challenge to
Agent Doherty’s credibility is based primarily on the IJ’s finding
in 2010 that Agent Doherty’s testimony was entitled to little weight
because he had difficulty recalling important details. The BIA,
however, subsequently remanded proceedings to the IJ for entry of
a new decision. In a 2013 decision, the IJ clarified that, despite
Agent Doherty’s difficulty remembering details, the agent testified
“unequivocally” that Gupta had admitted that he was not born in the
United States. Gupta has not presented us with any evidence that
compels a finding that this aspect of Doherty’s testimony is not
credible.
The agency also did not err by admitting and crediting Gupta’s
Form I-213. We have held that an I-213 is “presumptively reliable,”
because it “contain[s] guarantees of reliability and trustworthiness
that are substantially equivalent” to those required of business
records admissible under the Federal Rules of Evidence. Felzcerek
v. INS, 75 F.3d 112, 116-17 (2d Cir. 1996). Gupta argues that the
I-213 in his case is unreliable evidence of his foreign birth because
it was prepared 18 months after his interview, there were no
contemporaneous interview notes in the record, and Agent Doherty did
not prepare the I-213 himself. In support of this position, Gupta
relies largely on Murphy v. INS, 54 F.3d 605 (9th Cir. 1995). We
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find that this reliance is misplaced. In contrast to Murphy, Agent
Doherty testified and was cross-examined regarding the information
in the I-213 and the circumstances surrounding its development. Cf.
Murphy, 54 F.3d at 610-11. In light of his testimony, the agency
reasonably concluded that the I-213 was admissible and entitled to
weight. See Felzcerek, 75 F.3d at 116-17; Zerrei, 471 F.3d at 346;
cf. Tejeda-Mata v. INS, 626 F.2d 721, 724 (9th Cir. 1980).
Gupta’s proffer consisted of one piece of documentary evidence:
his mother’s 1995 application for adjustment of status which listed
Gupta’s place of birth as California. The agency gave diminished
weight to that evidence based on his mother’s strong incentive to
conform the information on her application to Gupta’s
then-recently-obtained Delayed Registration of Birth (procured
through the submission of Gupta’s fraudulent school records). That
determination was reasonable.
Gupta also faults the agency for discounting his and his
parents’ testimony. The agency, however, did not err in declining
to credit their testimony because of the absence of any corroborating
evidence. Cf. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(recognizing that “[a]n applicant’s failure to corroborate his . .
. testimony may bear on credibility, because the absence of
corroboration in general makes an applicant unable to rehabilitate
testimony that has already been called into question”). Gupta’s
father testified that the hospital in California had given him a
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document stating that his son was born there, but that he gave the
document to the Indian government in 1969 to register his son as an
Indian citizen. Gupta did not provide evidence that he or his family
attempted to recover that hospital record, despite having ample time
to do so. Nor did Gupta’s parents submit passports or any other
evidence that they were in the United States in 1969 or that Gupta
was endorsed on either of their passports upon leaving the United
States as they claimed. Nor did they offer any evidence from doctors
regarding the post-natal medical care they purportedly received in
the United States, England, and India. Under these circumstances,
the agency did not err in declining to credit their testimony. See
Siewe, 480 F.3d at 168-69.
Given the agency’s reasonable consideration of Gupta’s social
security card application, Form I-213, and Agent Doherty’s
testimony, as well as its proper bases for discounting the testimony
of Gupta and his parents, it cannot be said that “any rational trier
of fact would be compelled to conclude that the proof [of Gupta’s
foreign birth] did not rise to the level of clear and convincing
evidence.” Francis, 442 F.3d at 138-39.
The government’s proof of Gupta’s foreign birth created a
rebuttable presumption of alienage. See Rodriguez-Tejedor, 23 I.
& N. Dec. at 164; Tijerina-Villarreal, 13 I. & N. Dec. at 330. Gupta
failed to rebut that presumption because he offered no basis for
citizenship other than the location of his birth. See id. We
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therefore conclude that we lack jurisdiction to review his petition.
Ashton, 431 F.3d at 99. The petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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