Jose Galvan v. Eric Holder, Jr. ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0704n.06
No. 09-3686 FILED
Nov 12, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOSE OSCAR GALVAN, )
) ON PETITION FOR REVIEW
Petitioner, ) FROM THE BOARD OF
) IMMIGRATION APPEALS.
v. )
)
ERIC H. HOLDER, JR., ) OPINION
)
Respondent. )
)
BEFORE: NORRIS, ROGERS, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Petitioner Jose Oscar Galvan (Galvan) appeals the
Board of Immigration Appeals (BIA) denial of his application for Cancellation of Removal (COR).
We DENY the petition for review.
I.
Galvan, a thirty-six-year-old Mexican native and citizen who resides in Nashville, Tennessee,
crossed the border without inspection from Mexico into Phoenix, Arizona in 1997. Galvan testified
that he moved from Phoenix to Los Angeles, and then to Chicago, before settling in Tennessee. On
April 30, 2007, after he was arrested in Tennessee on a minor driving offense, the United States
presented Galvan with a Notice to Appear in removal proceedings. Galvan conceded his
removability, but filed an application for COR in May, 2008.
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To make out a prima facie case for COR, a petitioner must establish his continuous physical
presence for ten years or more in the United States, prior to filing the COR application. This
continuous period is cut off when the United States begins removal proceedings. 8 U.S.C. §
1229b(b)(1)(A).1 In order for Galvan to fulfill the ten-year requirement, therefore, he must show that
he was present in the United States on or before April 30, 1997.
The record contains conflicting evidence regarding the precise date on which Galvan arrived
in the United States. An INS Form I-213 (Record of Deportable/Inadmissible Alien) dated April 29,
2007, reports that Galvan told the Immigration and Customs Enforcement (ICE) official who
interviewed him that he “entered the U.S . . . on July 08, 1997.” However, on July 11, 2008, Galvan
testified at his removal hearing that he actually arrived in the United States on April 12 or 13, 1997,
and that he had given the incorrect July date to the ICE official because he was “nervous” and not
“fully conscious of my five senses” during the interview. Other than his own testimony at the
removal hearing, Galvan did not provide additional witnesses or documentary evidence (pay stubs,
bank statements, medical records, residential lease, etc.) placing him in the United States before July,
1997, nor did he provide a street address for any residence at which he stayed while living in Los
Angeles. There is documentary evidence – including a certificate of title for an automobile and a
1
8 U.S.C. § 1229b(b)(1)(A) states:
(b) Cancellation of removal and adjustment of status for certain nonpermanent residents
(1) In general
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully
admitted for permanent residence, an alien who is admissible or deportable from the United
States if the alien--
(A) has been physically present in the United States for a continuous period of not less than
10 years immediately preceding the date of such application.
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signed letter from Galvan’s parish priest – establishing his presence in the United States from July,
1997 on. When the Immigration Judge (IJ) asked Galvan why he could not provide documentation
of his presence in Los Angeles in April 1997, Galvan replied that he had no pay stubs or bank
account because he had been paid in cash as a contract worker, and that he had not signed a lease.
Galvan brought one witness with him to the hearing, but conceded that that witness had only known
him since 2002. Galvan alleged that a second witness was unable to attend because of a canceled
flight, but conceded that that witness would not be able to place him in the United States on or before
April 30, 1997.
At one point during Galvan’s direct examination at the removal hearing, and after discussion
of the date of his arrival in the United States, the IJ interjected:
JUDGE TO [GALVAN’S ATTORNEY]: Let me stop the testimony at this point.
We have a threshold issue.
[GALVAN’S ATTORNEY] TO JUDGE: Correct.
JUDGE TO [GALVAN’S ATTORNEY]: If we were in Federal Court, there would
be 12 B 6 motion right about now, a motion to pretermit in Immigration parlance.
Do you have a witness that you say can place the respondent in the United States at
this time?
Galvan’s attorney consulted with Galvan and responded that they did not have such a witness.
Shortly thereafter, the IJ also stated that unless Galvan could show appropriate documentation, or
present appropriate witnesses establishing his presence for ten years, the IJ “might entertain a motion
from the Government to pretermit.” Not long after, the Government moved that the application be
pretermitted on the basis that Galvan was “not statutorily eligible for cancellation” based on his
failure to demonstrate ten years’ presence in the United States, which the IJ granted.
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On July 11, 2008, the IJ denied Galvan’s application for COR, relying on Santana-Albarran
v. Ashcroft, 393 F.3d 699 (6th Cir. 2005), for the proposition that an IJ could reasonably expect the
corroboration of ten years’ of presence in the form of documentary evidence, and finding that
because there were no “reliable documents” or witnesses in the record to support Galvan’s
contention that he had been present in the United States in April, 1997, and because Galvan himself
had initially claimed that he arrived in the United States in July rather than April of 1997, Galvan
had not met his burden of proof with respect to the ten-year continuous-presence requirement for
COR. The IJ also overruled Galvan’s objections to the admittance of the I-213 as evidence. Galvan
had argued that the form should not be admitted because it was not authenticated and he did not
“know that the person who signed it was actually the signer,” and on the grounds of hearsay. The
IJ held that the form “merely memorialized testimony which respondent gave to an Immigration
Officer and which he repeated in this Court, but the I-213 stands separate from respondent’s inability
to meet his burden of proof.” The IJ granted Galvan voluntary departure up to and including
September 9, 2008.
Galvan timely appealed the IJ’s decision denying his application for COR to the BIA, arguing
that: (1) the IJ failed to give proper weight to Galvan’s testimony; (2) the IJ improperly violated his
due process rights by relying on inherently unreliable hearsay, i.e., the I-213 Form; and, (3) the BIA
was deprived of a meaningful opportunity to review the proceedings because of the incomplete
transcript.2
2
The removal hearing transcript has a significant number of instances where part or all of
Galvan’s responses to questions are marked “indiscernible.”
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The BIA dismissed Galvan’s appeal on May 13, 2009. First, the BIA held that although the
transcript of the removal hearing “shows numerous areas in the respondent’s testimony that are
indiscernible from the tape of the proceedings,” a review of the entire transcript shows that neither
the parties nor the BIA were deprived of a meaningful review of the proceedings. The BIA held that
this was true of the parties because Galvan’s attorney before the BIA also represented him before the
IJ “and heard the questions and the respondent’s testimony first-hand.” The BIA then held that this
was true for the BIA as well because, “even though the transcript is flawed, it is sufficient for the
Board to review the proceedings. There has been no specific dispute as to the critical findings of the
Immigration Judge from that testimony.” Specifically, the BIA found that, as regards the central
question whether Galvan had been in the United States ten years, the transcript showed that Galvan
testified he had entered the United States on either April 12 or 13, that he first went to Phoenix and
then arrived in Los Angeles on April 14, that he lived there until July 11, 1997, but could not
remember his address or provide any documentation to support those dates, that he then moved from
Los Angeles to Chicago by plane but had no documentation of that move, that he had told the
immigration agent that he entered the United States on July 8, 1997, that the witness who had come
to the hearing on Galvan’s behalf could only testify to his presence beginning in 2002, and that he
had not arranged for any other witnesses that could testify to his presence in the United States before
April 30, 1997.
Second, the BIA held that the IJ did not commit error in relying on the information contained
in the I-213 because Galvan admitted that he provided the immigration officer with a date of July
8, 1997, which was then included in the I-213.
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Third, the BIA affirmed the IJ, holding that Galvan did not qualify for COR “because he
failed to show that he has the requisite period of continuous physical presence” required by 8 U.S.C.
§ 1229b(b)(1)(A). In support of this decision, the BIA noted that in light of Galvan’s lack of
documentary evidence or witnesses to support his testimony regarding his arrival in the United States
in April, 1997, his own testimony about his arrival date at the removal hearing was not reliable. The
BIA subsequently ordered that Galvan be permitted to voluntarily depart the United States within
sixty days from the date of the order “or any extension beyond that time as may be granted by the
Department of Homeland Security,” “conditioned upon compliance with conditions set forth by the
Immigration Judge and the statute.” The BIA’s order included a warning that: “If, prior to departing
the United States, the respondent files any judicial challenge to this administratively final order, such
as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary
departure is automatically terminated, and the alternate order of removal shall immediately take
effect.”
Galvan timely petitioned for review of the BIA’s order in the Sixth Circuit. On June 29,
2009, he moved for a stay of removal and, concurrently, for either a stay of voluntary departure or
a reinstatement of voluntary departure nunc pro tunc. On October 26, 2009, a motions panel of this
Circuit granted Galvan’s motion for stay of removal, but referred the motion for a stay of voluntary
departure to the merits panel.
II.
Where the BIA issues an opinion separate from that of the IJ, we review the BIA’s decision
as the final agency determination. However, we also review the IJ’s decision to the extent the BIA
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adopted it. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). This Court reviews de novo claims
asserting due process violations in removal hearings. Mikhailevitch v. I.N.S., 146 F.3d 384, 391 (6th
Cir. 1998).
Galvan argues that various errors committed by the IJ and BIA deprived him of due process.
“An alien must establish both error and substantial prejudice to prevail on a due process challenge
to deportation proceedings.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (internal
quotations omitted). Not every error in a removal proceeding implicates the Fifth Amendment. “[A]
defect must have been such as might have led to a denial of justice to trigger due process concerns.”
Id. (internal quotations omitted). Either because there was no error, or because any alleged error did
not produce substantial prejudice, none of the alleged errors violated Galvan’s right to due process.
A.
Galvan first argues that he was deprived of due process by the IJ’s consideration of the I-213
form because: (1) the IJ failed to consider the “unfair or coercive manner in which the information
on Form I-213 was collected”; (2) the IJ did not allow for cross-examination of the ICE official who
prepared the form; and, (3) the IJ improperly gave more weight to the information in the I-213 form
than to Galvan’s testimony.
We need not engage in a lengthy discussion of these claims because even if Galvan could
show error in the admission of the I-213, he cannot show prejudice. The Government did not need
to rely on the I-213 to introduce the conflicting July date because Galvan acknowledged at the
hearing before the IJ that he gave the Immigration Officer an entry date of July 8, 1997. That
testimony undermines Galvan’s second and third claims of error, as well as his subclaims based on
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hearsay and the failure to authenticate the I-213. See Walker v. Ashcroft, 54 F. App’x 438, 440-41
(6th Cir. 2002) (relying on I-213 where petitioner gives “no reason to doubt the correctness of the
information contained in the court records and the I-213 form”). Further, there is no evidence the
I-213 form is a forgery or has been tampered with in any way. See Lici v. Mukasey, 258 F. App’x
845, 848 (6th Cir. 2007) (“Authentication is not an issue as there is no evidence the report is a
forgery.”).3
Additionally, neither the IJ nor the BIA relied solely, or even primarily, on the I-213 divorced
from Galvan’s testimony. The IJ held that “the I-213 stands separate from respondent’s inability to
meet his burden of proof.” Similarly, the BIA premised its affirmance on “the conflicting dates the
respondent has provided as his date of entry, and the lack of documentary evidence that he was
present in the United States on or before April 30, 1997.”
Regarding his first claim of error, Galvan concedes that “[f]orm I-213 is regularly admitted
into evidence as the sole means of proof of removability.” However, he argues that admitting the
form in his particular case violated due process because the IJ did not consider “the unfair or
coercive manner in which this information on the I-213 was collected.”
“Evidentiary matters in immigration proceedings . . . are not subject to the Federal Rules of
Evidence, and we review evidentiary rulings by IJs only to determine whether such rulings have
3
The BIA observed that “because the respondent has admitted that he provided the date of
July 8, 1997, to the Immigration [O]fficer, who then filled it in on the Form I-213, the challenge of
the entry of such documentary evidence on the basis that it has not been authenticated is without
merit.”
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resulted in a violation of due process.” Singh v. Ashcroft, 398 F.3d 396, 406-07 (6th Cir. 2005)
(internal citation omitted). The IJ “may receive in evidence any oral or written statement that is
material and relevant to any issue in the case previously made by the respondent or any other person
during any investigation, examination, hearing, or trial.” 8 C.F.R. § 1240.7(a). “[T]he test for
admissibility of evidence [in the immigration context] . . . is whether the evidence is probative and
whether its use is fundamentally fair.” Alexandrov v. Gonzales, 442 F.3d 395, 404-05 (6th Cir.
2006) (citing Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003)). “The burden of
establishing a basis for exclusion of evidence from a government record falls on the opponent of the
evidence, who must come forward with enough negative factors to persuade the court not to admit
it.” Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir. 1995); see also id. (“Th[e burden] rule is premised
on the assumption that public officials perform their duties properly without motive or interest other
than to submit accurate and fair reports. Another consideration is the great inconvenience that would
be caused to public business if public officers had to be called to court to verify in person every fact
they certify.” (internal citations and quotations omitted)).
Galvan suggests through rhetorical questions that the IJ should have considered whether the
I-213 was produced in a coercive manner. Galvan did not raise this claim to the BIA and submitted
no evidence of coercion. Rather, this “coercion” element of his due process argument seems to rely
solely on the assertion that he was nervous during the I-213 interview. Galvan was permitted to
testify to the circumstances surrounding the I-213 interview. That he testified to being nervous does
not render the I-213 so inherently unreliable as to compel its exclusion. In re Ponce-Hernandez, 22
I. & N. Dec. 784, 785 (B.I.A. 1999) (“It has been held that absent any evidence that a Form I-213
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contains information that is incorrect or was obtained by coercion or duress, that document is
inherently trustworthy and admissible as evidence to prove alienage or deportability.”); see also
Murdock v. Attorney General of U.S., 131 F. App’x 360, 361 (3rd Cir. 2005) (citing In re Ponce-
Hernandez, 27 I. & N. Dec. at 785). Rather, it was for the IJ to determine, based on the entire record,
whether Galvan’s nervousness and anxiety adequately explained his providing the Immigration
Officer with the July date. The IJ did not reject Galvan’s account of his state of mind during the
interview; he was simply unpersuaded that his state of mind accounted for the asserted error. Galvan
has shown no prejudice from his inability to cross-examine the Immigration Officer.
Galvan further argues that “[o]nce the IJ admitted the Form I-213, he should not have
afforded greater weight to it than the in-court witness (the Petitioner) and over to [sic] the objections
of the respondent.” As noted above, however, the IJ’s holding that Galvan was not eligible for COR
was not premised on the date contained in the I-213, but on Galvan’s failure to satisfy his burden of
proof in light of all the evidence presented.
B.
Galvan argues that his right to due process was violated because the IJ did not make an
adverse credibility finding with respect to Galvan, and therefore should have accepted Galvan’s
testimony during his removal hearing as sufficient without additional corroboration. Galvan also
argues that the IJ and BIA held him to the wrong legal standard of corroboration – they erroneously
employed the standard found in Santana-Albarran v. Ashcroft, rather than INA § 240(c)(4)(B) [8
U.S.C. § 1229a(c)(4)(B)]. We read the record differently.
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INA § 240(c)(4)(B) is an amendment to the INA pursuant to the REAL ID Act (effective on
May 11, 2005), which would allow Galvan’s testimony to suffice as evidence that he was
continuously present for ten years provided he could also show that he could not reasonably obtain
supporting documentary evidence. Galvan argues that the IJ interpreted Santana-Albarran to mean
that those corroborating documents were required, and did not realize he had discretion.
Galvan correctly argues that 8 U.S.C. § 1229a(c)(4)(B) applies to issues of the sufficiency
of corroborative evidence in removal proceedings. That statute states in pertinent part:
In evaluating the testimony of the applicant or other witness in support of the
application, the immigration judge will determine whether or not the testimony is
credible, is persuasive, and refers to specific facts sufficient to demonstrate that the
applicant has satisfied the applicant’s burden of proof. In determining whether the
applicant has met such burden, the immigration judge shall weigh the credible
testimony along with other evidence of record. Where the immigration judge
determines that the applicant should provide evidence which corroborates otherwise
credible testimony, such evidence must be provided unless the applicant
demonstrates that the applicant does not have the evidence and cannot reasonably
obtain the evidence.
8 U.S.C. § 1229a(c)(4)(B).
This Court construed the post-REAL ID Act standard for corroborating evidence in
immigration proceedings in Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010). Urbina-Mejia’s
claim for withholding of removal had been denied in part because he failed to provide corroborating
evidence. Id. at 362. This court found that the IJ and BIA did not err in finding that the petitioner
had failed to corroborate his credible testimony with available evidence, noting:
This court is bound by the REAL ID Act of 2005 and may not reverse an agency
finding as to the availability of corroborating evidence “unless the court finds . . . that
a reasonable trier of fact is compelled to conclude that such corroborating evidence
is unavailable.”
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597 F.3d at 367 (quoting Fisenko v. Holder, 336 F. App’x 504, 513 (6th Cir. 2009)). Urbina-Mejia
confirmed that the REAL ID Act allows IJs to “determine[] that an applicant should provide
corroborating evidence, even if the applicant is found credible.” Id. As in Urbina-Mejia, Galvan
“has failed to show that his testimony must be found sufficient to sustain his burden of proof without
corroboration merely because it may do so when no corroborating evidence is available.” Id. at 368
n.4 (emphasis added).
Moreover, although Santana-Albarran was a pre-REAL ID Act case, the IJ’s references to
that case for types of corroborative documentary evidence does not render this post-REAL ID Act
decision unsound. In Santana-Albarran, the petitioner, a Mexican national who applied for COR,
claimed the IJ did not give sufficient weight to back tax returns (filed long after the applicable tax
years and without W-2 forms) that he used to corroborate his testimony that he had been
continuously present in the United States for ten years. 393 F.3d at 706. The Santana-Albarran
court stated:
[P]ermissible evidence demonstrating a continuous physical presence should be
broadly defined. In an analogous situation, DHS regulations state that to prove a
continuing physical presence in this country, an alien may use (1) past employment
records, including pay stubs, W-2 forms, certifications of the filing of income tax
returns, or letters from employers; (2) utility bills; (3) school records; (4) hospital or
medical records; (5) attestations by churches, unions, or other organizations; and (6)
additional documents, including passport entries, birth certificates of children born
in the United States, letters or correspondence, contracts, government-issued
identification cards, or any other relevant document.
Id. at 705. Santana-Albarran’s recitation of the types of documentary evidence that can be used to
corroborate an alien’s testimony regarding his continuous physical presence claim is still relevant
after passage of the REAL ID Act. And it was to that standard that the IJ was referring when he
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stated: “The Immigration Judge would have expected documents of a reliable nature, such as those
set forth in Santana-Albarran, supra, to establish the 10-year presence.”
It is the IJ’s task to determine – apart from his credibility finding – whether Galvan’s
explanation for his lack of corroborating evidence is reasonable, and the IJ’s use of Santana-
Albarran to do so was not error.
Troubling, however, is that the transcript of the removal hearing does indicate that it is
possible that the IJ erroneously believed the Santana-Albarran documentation was required, as
opposed to optional:
Sir, let me explain your legal situation. You have to prove, prove, that you were
physically present in the United States before April 30, 1997. And the case law
involving that requires reliable proof in the form of the kind of documents that your
lawyer asked you about earlier.
Although the IJ’s order is more ambiguous as to whether he believed such documentation was
required, even assuming the IJ erred, the BIA made an independent finding that “the respondent’s
testimony regarding his April 1997 arrival date is not a reliable statement and not sufficient evidence
of his date of entry . . . .” Therefore, any error by the IJ does not compel reversal.
C.
Galvan argues that the IJ’s suggestion that the Government file a motion to pretermit violated
his right to due process, and that this suggestion prejudiced Galvan since the case was ultimately
pretermitted.
Although “[a] neutral judge is one of the most basic due process protections,” Reyes-
Melendez v. I.N.S., 342 F.3d 1001, 1006 (9th Cir. 2003), IJs have broad discretion in conducting their
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hearings. Ahmed v. Gonzales, 398 F.3d 722, 725 (6th Cir. 2005). Among the IJ’s statutorily
conferred powers are those to “administer oaths, receive evidence, and interrogate, examine, and
cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1). However, “[a]n immigration
judge has a responsibility to function as a neutral, impartial arbiter and must refrain from taking on
the role of advocate for either party.” Elias v. Gonzales, 490 F.3d 444, 451 (6th Cir. 2007). The BIA
has stated:
An IJ must be impartial and must not attempt to establish proof to support the
position of any party to the controversy; once he does so he becomes an advocate or
a participant, thus ceasing to function as an impartial trier of fact, and a hearing so
conducted is lacking in the fundamental fairness required by due process.
Vasha v. Gonzales, 410 F.3d 863, 872-73 (6th Cir. 2005) (quoting Matter of Lam, 14 I. & N. Dec.
168, 170 (B.I.A. 1972)).
At one point during Galvan’s removal hearing, as he was providing testimony, the IJ stated:
“Let me stop the testimony at this point. We have a threshold issue.” He then stated: “If we were
in Federal Court, there would be a 12 B 6 motion right about now, a motion to pretermit in
Immigration parlance.” A short while later he stated that unless Galvan had documents to show he
had been in the country for the requisite ten years he “might entertain a motion from the Government
to pretermit.”
Notwithstanding the IJ’s invitation to the Government, Galvan had ample opportunity to
present evidence of his presence in the country for the requisite ten-year period, but was still unable
to do so. He has not shown substantial prejudice from the IJ’s actions. See Campos v. I.N.S., 16
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F.3d 118, 122 (6th Cir. 1994) (abbreviated hearing did not violate due process where petitioner was
statutorily barred from discretionary waiver and “had ample opportunity to address the issue”).
D.
Galvan argues that the extensive “indiscernible” notations throughout the transcript from the
removal hearing violated his rights to due process. The removal hearing transcript contains many
instances in which Galvan’s responses to questions are marked either partially or completely
“indiscernible,” including his answers to questions such as: “Where did you work in Los Angeles
as a contract worker?”; “[W]hy did you tell them that day that you came in April?”; “[W]hy did you
tell the ICE agent you arrived on July 8?”; and “Did you understand the ICE Agent’s question when
he asked you or she asked you what date did you enter the United States?” However, the flawed
transcript does not rise to the level of a due process violation, because Galvan has not indicated how
the incomplete transcript prejudiced his case.
In Garza-Moreno v. Gonzales, this Court held that a removal hearing transcript that contained
“sixty-seven ‘indiscernible’ notations” did not violate the alien petitioner’s right to due process under
the Fifth Amendment. 489 F.3d 239, 241-42 (6th Cir. 2007). This Court has noted, citing 8 U.S.C.
§ 1229a(b)(4)(C),4 that the government has an “obligation to prepare a reasonably accurate and
complete record of the removal hearing,” Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006), but
has also held that an error in a transcript, standing alone, does not trigger a due process violation
4
8 U.S.C. § 1229a(b)(4)(C) states: “[A] complete record shall be kept of all testimony and
evidence presented at the proceeding.”
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without a concomitant showing that the transcript’s flaws affected the outcome of the case.
Abdulahad v. Holder, 581 F.3d 290, 296 (6th Cir. 2009) (petitioner failed to establish a violation of
due process based solely on the fact that portions of his removal hearing transcript were marked
“indiscernible”); Soumare v. Holder, 343 F. App’x 75, 83-84 (6th Cir. 2009) (petitioner’s right to
due process was not violated by the admission of a transcript with numerous “indiscernible”
notations because petitioner “has not identified how the ‘indiscernibles’ in the hearing transcript
prejudiced his ability to perfect an appeal”).
In the instant case, the primary issue with which the IJ and the BIA were concerned was
whether Galvan could fulfill the ten-year continuous-presence factor required for a prima facie claim
of COR. The transcript reflects – and Galvan does not dispute – that Galvan: (1) reported that he
arrived in Los Angeles on April 14, 1997; (2) had previously told the ICE officer who filled out his
I-213 form that he arrived on July 8, 1997; (3) brought no witnesses to his removal hearing who
could testify to his presence in the United States before April 30, 1997; and (4) had no documentary
evidence to corroborate his testimony that he arrived in the United States in April, 1997. These
undisputed facts alone provided the IJ and the BIA with sufficient evidence to determine that Galvan
failed to meet his burden of proof on the ten-year continuous-presence prong of his COR claim.
While Galvan’s removal hearing transcript is unquestionably patchy, this does not bear on the
outcome of his case: he neither indicates specific, material facts that were omitted from the
transcript, nor argues that the IJ or the BIA misinterpreted the transcript because of its many
“indiscernible” notations. As the BIA observed, the same attorney represented Galvan at the hearing
and on appeal, and was present to hear the testimony, even the testimony that was not adequately
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transcribed. Thus, we find that the incomplete transcript did not prejudice Galvan and, therefore,
did not violate his right to due process.
E.
Galvan argued in a motion to this Court that he should be granted a stay of voluntary
departure. At oral argument, however, he conceded that he automatically lost his voluntary departure
status by filing this appeal. 8 C.F.R. § 1240.26(i)5. We therefore lack jurisdiction to consider a
motion to stay.
III.
Based on the foregoing, we DENY the petition for review.
5
8 C.F.R. § 1240.26(i) states:
Effect of filing a petition for review. If, prior to departing the United States, the alien
files a petition for review pursuant to section 242 of the Act (8 U.S.C. 1252) or any
other judicial challenge to the administratively final order, any grant of voluntary
departure shall terminate automatically upon the filing of the petition or other judicial
challenge and the alternate order of removal entered pursuant to paragraph (d) of this
section shall immediately take effect . . . .
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