Raul Barradas v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3440
R AUL B ARRADAS,
Petitioner,
v.
E RIC H. H OLDER, JR.,ΠAttorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A078-869-280
A RGUED A PRIL 1, 2009—D ECIDED S EPTEMBER 23, 2009
Before P OSNER, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Raul Barradas, a Mexican citizen
and lawful permanent resident of the United States, was
found removable from the United States on the grounds
Œ
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is automatically substituted
for Michael B. Mukasey as Respondent.
2 No. 08-3440
that he knowingly attempted to smuggle illegal aliens
into the country. He appealed the decision of the Im-
migration Judge (“IJ”) to the Board of Immigration Ap-
peals, which affirmed. Barradas now petitions this court
for relief, arguing that the IJ incorrectly concluded that
the government met its heavy burden of proof,
improperly admitted evidence without allowing him
the opportunity to cross-examine its preparer, and
impermissibly denied him due process by compelling him
to testify and then excessively interrogating him. For
the reasons stated below, we deny the petition for review.
I. Background
Raul Barradas, a Mexican citizen, became a lawful
permanent resident of the United States on September 18,
2001. Barradas made his home in Monroe, Wisconsin, but
made frequent trips back to Mexico. Before one of
Barradas’s trips in 2005, a family friend, Alfredo Meyer,
gave him two United States birth certificates bearing
the names “Nicole Lynne Leighty” and “Jacob Brian
Leighty” and asked him to bring the children they
named, allegedly Meyer’s own, back to Wisconsin from
Mexico. Barradas traveled to Mexico with his wife and
his own two children to visit his brother. While there, he
somehow acquired two Mexican children, Anyyensy
Meyer Gonzalez, age seventeen, and Eduardo Doranetes
Ortiz, age eleven. (The record is unclear at best regarding
how Anyyensy and Eduardo came to travel with
Barradas; Barradas’s testimony indicates that unnamed
people brought the children to him at some point during
his visit.)
No. 08-3440 3
When Barradas tried to reenter the United States at the
Hidalgo, Texas port of entry on October 8, 2005 with his
wife, his two children, and Anyyensy and Eduardo in
tow, he was stopped by Customs and Border Patrol agents
Roel DeLaFuente and Mark Latigo. Barradas presented
his resident alien card and the Leighty birth certificates
to the agents, who became suspicious and ordered sec-
ondary inspections (in-depth interviews) of everyone in
Barradas’s van. Officer DeLaFuente recorded the infor-
mation gleaned from the secondary inspections on a
Form I-213 Record of Deportable/Inadmissible Alien and
authored an accompanying Form I-831 Customs and
Border Patrol memorandum.
According to those reports, Barradas told the agents
that he knew Anyyensy was born in Mexico and that he
had coached both children to memorize the information
on the Leighty birth certificates. He claimed he was
transporting the children to their father in Wisconsin and
would receive $1000 per child for bringing them back.
Anyyensy and Eduardo told the agents their real names
and essentially reiterated the story Barradas had told
the agents: that he gave them U.S. birth certificates
and coached them to say that they were U.S. citizens
named Nicole Lynne Leighty and Jacob Brian Leighty.
Following the secondary inspections, Anyyensy and
Eduardo were returned to Mexico, Barradas’s wife and
children were permitted to return to the United States,
and Barradas was detained at La Villa Detention Center
and charged with violating 8 U.S.C. § 1325(a)(3) and
18 U.S.C. § 2.
4 No. 08-3440
On October 10, 2005, mere days after his apprehension
in Hidalgo and the same day on which his charging
document was completed,1 Barradas pleaded guilty to
alien smuggling. Because no detention space was avail-
able at the Port Isabel Service Processing Center, Barradas
was paroled into the United States on October 11, 2005. On
October 18, 2005, Officer DeLaFuente supplemented
the Forms I-213 and I-831 with information about
Barradas’s conviction.
On October 19, 2005, Officer DeLaFuente initiated
removal proceedings against Barradas and issued him
a Notice to Appear (“NTA”).2 The NTA alleged that
Barradas (1) was not a U.S. citizen or national; (2) was a
native and citizen of Mexico; (3) applied for admission to
the United States at Hidalgo as a returning lawful perma-
nent resident; and (4) was convicted of smuggling illegal
aliens into the United States on October 10, 2005. On the
basis of those allegations, Barradas was charged as
subject to removal from the United States pursuant to
8 U.S.C. § 1182(a)(6)(E)(i), which denies admissibility to
aliens “who at any time knowingly ha[ve] encouraged,
1
The Southern District of Texas, in which Hidalgo is located,
has a “fast track” program to speed adjudication of cases
involving the transportation, harboring, or smuggling of aliens.
Memorandum from Craig Morford, Acting Deputy Attorney
General, to United States Attorneys 2-3 (Feb. 1, 2008), available at
http://www.fd.org/pdf_lib/fast_track_reauthorization08.pdf.
2
The record indicates that the October 19, 2005 NTA super-
seded one issued to Barradas sometime proximate to the
October 8, 2005 secondary inspection.
No. 08-3440 5
induced, assisted, abetted, or aided any other alien to
enter or to try to enter the United States in violation of
law . . . .”3
At his January 26, 2007 hearing before an IJ, at which
he was represented by counsel, Barradas admitted the
first three allegations of the NTA but denied the con-
viction and consequently his removability. The Depar-
tment of Homeland Security (“DHS” or “the govern-
ment”) offered the NTA, documentation of Barradas’s
permanent resident status, and a copy of the October 8,
2005 criminal complaint into evidence without objection
from Barradas. Barradas objected to the DHS’s other
proffered pieces of evidence, Officer DeLaFuente’s Form I-
213 and accompanying Form I-831 memorandum, on the
grounds that he lacked an opportunity to cross-examine
Officer DeLaFuente, their creator. The IJ admitted
both pieces of evidence over Barradas’s objections. The
government did not offer into evidence any official court
record of Barradas’s conviction for alien smuggling.
The IJ invited the DHS to question Barradas about the
fourth allegation in the NTA (alleging an October 10, 2005
conviction for alien smuggling). Barradas objected to the
questioning, claiming that the DHS could not “meet
[its] burden by questioning him in this hearing.” The IJ
3
The term “removable” is defined as an alien who is “inadmis-
sible” under 8 U.S.C. § 1182 or “deportable” under 8 U.S.C.
§ 1227. 8 U.S.C. § 1229a(e)(2); see also Zamora-Mallari v. Mukasey,
514 F.3d 679, 687 n.2 (7th Cir. 2008). We use the terms inter-
changeably.
6 No. 08-3440
stated that Barradas had “no right to stand mute at this
particular time,” and informed Barradas that he would
“draw an adverse inference” from Barradas’s silence or
refusal to take the stand. Barradas then took the stand
and testified that on October 8, 2005, he applied for
admission at the Hidalgo port of entry, along with his
wife, his two daughters, and two children identified
by birth certificates as Nicole Lynne Leighty and Jacob
Brian Leighty. He claimed that he believed that the chil-
dren were U.S. citizens and that he had been asked by
their father, Alfredo Meyer, to return them to Wisconsin.
When pressed by the DHS and the IJ, he said he
thought the children were “eight, nine, or ten,” and
testified that he did not know why he had agreed to pick
them up. He denied the Form I-213’s allegations that he
coached the children to memorize the Leighty birth
certificate information, that he knew that they were not
U.S. citizens, and that he was promised $1000 upon
their safe return to Wisconsin.
The IJ interrupted the DHS’s questioning to clarify
Barradas’s testimony about how the children came to
be with Barradas and how he acquired the Leighty
birth certificates. The IJ also asked Barradas to explain
what happened following the border inspections. During
the IJ’s questioning, Barradas denied familiarity with
the criminal complaint arising from the October 8, 2005
Hidalgo apprehension, but stated that he pleaded guilty
to a charge in federal court around that time because
he had “no choice” but to do so. The IJ confirmed that
Barradas knew he had been charged with alien
smuggling and that he had pleaded guilty to that charge.
No. 08-3440 7
After the government and the IJ questioned Barradas,
Barradas’s attorney did not examine him further.
The IJ immediately issued an oral decision in which he
rejected Barradas’s testimony that he did not know the
children were not U.S. citizens as incredible and relied
instead upon the information contained in the Form I-213
completed by Officer DeLaFuente. The IJ noted that the
record did not contain a court record of Barradas’s con-
viction, but found, based on Barradas’s credible
testimony about his guilty plea and the other evidence
in the record, that Barradas engaged in alien smuggling
and “knew or should have known” that the children he
attempted to bring into the United States were not citi-
zens. The IJ concluded that the DHS had established
removability under 8 U.S.C. § 1182(a)(6)(E)(i) by clear
and convincing evidence and ordered Barradas removed
to Mexico.
Barradas timely appealed the IJ’s order to the Board of
Immigration Appeals (“BIA”). On August 27, 2008, the
BIA affirmed the IJ’s removal decision, finding that it
was supported by evidence of record that established
Barradas’s knowing encouragement, inducement, assis-
tance, abetting, or aiding of two undocumented minor
aliens to try to enter the United States. In a footnote to
its per curiam order, the BIA noted that 8 U.S.C.
§ 1182(a)(6)(E)(i) requires an individual to act “know-
ingly” and observed that the IJ misstated the mens rea
requirement as “knew, or should have known.” The BIA
found this error to be harmless in light of Barradas’s
testimony that he pleaded guilty to alien smuggling. The
8 No. 08-3440
BIA found no evidence in the record to support
Barradas’s allegations that the IJ violated his due
process rights.
Barradas now petitions this court for relief and renews
the arguments he made before the BIA. His arguments
logically condense into two primary allegations: insuffi-
cient evidence and violation of due process rights. First,
he alleges that the DHS failed to prove his removability
by “clear, unequivocal, and convincing evidence” as
required by Woodby v. INS, 385 U.S. 276, 286 (1966). He
contends that the DHS did not introduce sufficient evi-
dence of his conviction to prove the factual allegation of
the conviction asserted in his NTA. This contention is
entwined with one of his subsidiary arguments: that the
IJ improperly admitted and relied upon the Forms I-213
and I-831. Second, Barradas alleges that the IJ violated
his due process rights by compelling his testimony
through inappropriate threats to draw an adverse infer-
ence from his silence and then by subjecting him to
“excessive interrogation” once he took the stand. We
evaluate his claims in turn.
II. Analysis
A. Sufficiency of the Evidence
Barradas argues that the BIA’s decision to remove him
should be reversed because the DHS failed to prove by
clear, unequivocal, and convincing evidence that he was
convicted of alien smuggling. The NTA alleged that “[o]n
October 10, 2005, [Barradas was] convicted of smuggling
No. 08-3440 9
illegal aliens into the United States.” On the basis of
that allegation and the three others to which Barradas
admitted, the NTA alleged him to be inadmissible (and
thus removable) pursuant to 8 U.S.C. § 1182(a)(6)(E)(i),
which states that “[a]ny alien who at any time knowingly
has encouraged, induced, assisted, abetted, or aided
any other alien to enter or to try to enter the United States
in violation of law is inadmissible.” Although 8 U.S.C.
§ 1182(a)(6)(E)(i) does not require a conviction for inad-
missibility or removal, see In re Ruiz-Romero, 22 I. & N. Dec.
486, 490 (B.I.A. 1999) (“[T]hese substantive provisions
describe the smuggling activities that will suffice, even
in the absence of a criminal conviction, to exclude or
deport an alien from the United States.”), Barradas
asserts that the DHS must prove the conviction here
because it was specifically alleged in the NTA. See Woodby,
385 U.S. at 286 (“[N]o deportation order may be entered
unless it is found by clear, unequivocal, and convincing
evidence that the facts alleged as grounds for deportation
are true.”); Iysheh v. Gonzales, 437 F.3d 613, 615 (7th Cir.
2006).4
4
We question Barradas’s basic premise that the government
was required to prove that he was “convicted” of alien smug-
gling merely because it happened to use that term in its NTA
allegation. The government could have employed any of a
host of terms—encouraged, induced, assisted, abetted, aided,
helped, succored, etc.—to allege, equally validly, that Barradas
violated the statute under which he was charged removable,
8 U.S.C. § 1182(a)(6)(E)(i). To be found removable under the
(continued...)
10 No. 08-3440
Because Barradas has lawful permanent resident status,
the government may remove him only if it establishes by
clear and convincing evidence that he is removable.
8 U.S.C. § 1229a(c)(3)(A); Olowo v. Ashcroft, 368 F.3d 692,
699 (7th Cir. 2004). Where, as here, the IJ and BIA found
that the government has met that burden, it is our task
to consider whether the removal order rests on “reason-
able, substantial, and probative evidence.” Olowo, 368
F.3d at 699. We cannot reverse the order of the BIA unless
we find that the evidence compels the conclusion that
the BIA ruled incorrectly. Rosendo-Ramirez v. INS, 32 F.3d
4
(...continued)
statute, Barradas need only have engaged in the conduct of alien
smuggling; no conviction is statutorily required. See 8 U.S.C.
§ 1182(a)(6)(E)(i); Escobar v. Holder, 567 F.3d 466, 468-69 & n.1
(9th Cir. 2009); In re Ruiz-Romero, 22 I. & N. Dec. at 490.
Barradas’s insistence that the government be confined by the
precise wording of the NTA elevates technical form over
pragmatic substance and subverts the generally high degree
of flexibility the DHS is afforded in making admissibility
decisions. After all, the language of an NTA is not formally
binding like that of a federal grand jury indictment; an NTA can
be modified “[a]t any time during deportation or removal
hearings.” 8 C.F.R. § 1003.30. Moreover, support for Barradas’s
premise within the broader context of immigration jurispru-
dence appears to stem largely from factually distinguishable
decisions. We save the resolution of this issue for another
case, however. Today, arguendo, we accept as valid Barradas’s
assertion that the government is bound to prove with
precision the “conviction” it alleged in his NTA and evaluate
his petition for review on that basis.
No. 08-3440 11
1085, 1087 (7th Cir. 1994). Where, as here, the BIA has
adopted, affirmed, and supplemented a decision of an
IJ, we review the IJ’s decision as supplemented by that of
the BIA. Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir. 2007).
Our determination of whether there is reasonable,
substantial, and probative evidence in the record as a
whole to support the IJ’s and BIA’s conclusions that the
government proved Barradas’s conviction by clear, un-
equivocal, and convincing evidence necessarily requires
an examination of the evidence admitted at Barradas’s
removal hearing. For reasons unbeknownst to us,
and apparently even to itself, the government was
unable to produce any court-issued documentation of
Barradas’s guilty plea or conviction at the time of his
hearing.5 Left without this evidence in the record, we
must determine whether the evidence that the govern-
ment did introduce—the criminal complaint, the Form I-
213, and the Form I-831—was sufficient to satisfy the
government’s heavy burden of proof as to his convic-
tion. First we must determine whether these items were
5
At Barradas’s continued hearing on October 5, 2006, the DHS
said it would “reach out to try to find out if [it could] get a
copy” of Barradas’s conviction. The IJ told the DHS that “if
you need some time [to get the conviction], you can just ask
for some more time.” The government evidently failed to do
so. As of oral argument, the government still had not intro-
duced a copy of the conviction or guilty plea or explained
its failure to do so. Counsel at oral argument was unable to
explain the delay in procuring a document she was able to
find “on PACER in about thirty seconds.”
12 No. 08-3440
admissible to prove the conviction. From there, we will
evaluate their sufficiency.
There is a statutory list of records that constitute proof
of a criminal conviction. See 8 U.S.C. § 1229a(c)(3)(B).
Barradas correctly observes that neither a criminal com-
plaint nor Forms I-213 or I-831 appears on the list. In
light of the deference we accord agency regulations,
however, we have held that the list is not exhaustive. See
Rosales-Pineda v. Gonzales, 452 F.3d 627, 631 (7th Cir. 2006);
see also Francis v. Gonzales, 442 F.3d 131, 142 (2d Cir. 2006).
Here, we defer to the Attorney General’s regulation
for determining what kinds of evidence may be used
to prove a criminal conviction in immigration pro-
ceedings, 8 C.F.R. § 1003.41. Subsection (d) of this regula-
tion provides that “[a]ny . . . evidence that reasonably
indicates the existence of a criminal conviction may be
admissible as evidence thereof.” 8 C.F.R. § 1003.41(d).
The Federal Rules of Evidence do not apply in immigra-
tion proceedings. Doumbia v. Gonzales, 472 F.3d 957, 962
(7th Cir. 2007). Evidence is admissible so long as it
is probative and its admission is fundamentally fair.
Rosendo-Ramirez, 32 F.3d at 1088.
The IJ admitted into evidence the criminal complaint
charging Barradas with alien smuggling. Barradas
did not object to the admission. During questioning, the
IJ showed the criminal complaint to Barradas, who ac-
knowledged that it charged him with alien smuggling.
While a criminal complaint does not demonstrate guilt
or the existence of a conviction, it at least provides some
basis for the government’s allegations in the NTA.
No. 08-3440 13
Barradas did not challenge the admission of or reliance
upon this document, and neither do we.
The admissibility of the Forms I-213 and I-831—both as
proof of Barradas’s conviction and as proof of other facts
in the case—is more contentious.6 Barradas objected to
their admission at his hearing because he was not given
the opportunity to cross-examine their creator, Officer
DeLaFuente, who was not present at the hearing. The IJ
admitted both Forms over Barradas’s objection. Barradas
maintains that doing so was “fundamentally unfair” to
him.
We have observed that “problems of fundamental
fairness associated with hearsay testimony are dispelled
when the testimony is subject to cross-examination,”
Olowo, 368 F.3d at 700, but we did not go so far as to say
that cross-examination is the only way to ensure funda-
mental fairness. In the immigration context, “ ‘fundamen-
tally fair’ should simply be read to mean ‘in accordance
with the reasonable opportunity guaranteed by [8 U.S.C.]
§ 1229a(b)(4).’ ” Doumbia, 472 F.3d at 962. Aliens in
removal proceedings have the right to a reasonable op-
portunity to “cross-examine witnesses presented by the
Government,” 8 U.S.C. § 1229a(b)(4)(B), but when the
evidence introduced is that “recorded by a[] [DHS] agent
in a public record,” the absent agent “cannot be presumed
6
The relevant contents of the Forms I-213 and I-831 are virtu-
ally identical in this case. We will therefore follow the lead
of Barradas’s reply brief and limit our discussion to the ad-
missibility of the Form I-213.
14 No. 08-3440
to be an unfriendly witness or other than an accurate
recorder,” Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1994).
“Establishing an automatic right to cross-examine the
preparers of such documents would place an unwar-
ranted burden on the [DHS].” Id. Absent any indication
that a Form I-213 contains information that is manifestly
incorrect or was obtained by duress, the BIA has found
the Form to be inherently trustworthy and admissible as
evidence. In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785
(B.I.A. 1999). We have agreed with that position. See
Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir. 2001).
Moreover, we have long allowed the admission of
Forms I-213 to prove the truth of their contents. See
Rosendo-Ramirez, 32 F.3d at 1089. There is no indication
that Officer DeLaFuente’s conviction notation was care-
lessly or maliciously drafted or was intended to serve
as anything other than an administrative record.7 We
7
The notation in its entirety read: “10/18/05: Subject was
reserved [sic] with an NTA (form 862) via mail. Subject was
convicted of Alien Smuggling on 10/10/05. Subject was issued
a McNary Parole and was admitted into the US at the
Hidalgo Port of Entry due to that lack of space at PISPC on
October 11, 2005.” The notation Officer DeLaFuente made on
the Form I-831 was substantially identical. The slight incon-
sistency between the date on the notation (10/18/05) and the
date on the NTA (10/19/05) does not give rise to an inference
of carelessness or unreliability. Likewise, the fact that
DeLaFuente was a law enforcement officer and was acting
in that capacity does not render the Form I-213 inadmissible. Cf.
(continued...)
No. 08-3440 15
might doubt the reliability of the notation—and require
an opportunity for cross-examination—if it mischarac-
terized or misstated any material information about
Barradas’s conviction or seemed suspicious in any other
way. No such factors are present here. Nor does
Barradas allege that the remainder of the Form I-213 was
carelessly drafted or clouded by bias. He does not claim
that the conviction information noted on it is incor-
rect, nor that Officer DeLaFuente obtained any of the
Form I-213’s contents by duress or other inappropriate
interrogation tactics. Perhaps most tellingly, Barradas
does not assert that Officer DeLaFuente mischaracterized
or incorrectly recorded the statements of Anyyensy and
Eduardo. He merely attempts to cast doubt on the chil-
dren’s credibility, speculating that “they got nervous, or
they were afraid . . . and they didn’t have nothing else
to say.” In light of these facts, we find that the Form I-213
was properly admitted for its truth, both generally
and with respect to the conviction notation.
Having concluded that the government’s evidence to
prove Barradas’s conviction was properly admitted, we
turn to the question of whether it was sufficient to sup-
port the IJ’s finding that the government met its “clear,
unequivocal, and convincing” burden. With respect to
an alien, a “conviction” is defined as
7
(...continued)
Francis v. Gonzales, 442 F.3d 131, 142 (2d Cir. 2006) (finding a
police report prepared by Jamaican police admissible as proof
of a conviction in immigration proceedings).
16 No. 08-3440
a formal judgment of guilt of the alien entered by
a court or, if adjudication of guilt has been with-
held, where—
(i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo conten-
dere or has admitted sufficient facts to warrant a
finding of guilt, and
(ii) the judge has ordered some form of punish-
ment, penalty, or restraint on the alien’s liberty to
be imposed.
8 U.S.C. § 1101(a)(48). Barradas admitted part (i) during
a colloquy with the IJ at his hearing:
IJ: [L]et me show you Exhibit 3, this is the, this is a
complaint. Does that look familiar? Does that look
familiar?
Barradas: No, they did not give me anything.
IJ: Well, it’s charged you with alien smuggling.
You know that, right?
Barradas: Yes.
IJ: It’s your understanding because you had no
choice, if I understand correctly, you entered a
plea of guilty. Is that right?
Barradas: Yes.
The IJ found Barradas’s statements to be credible. We
uphold an IJ’s credibility finding as long as it is sup-
ported by specific, cogent reasons and evidence in the
record, Torres v. Mukasey, 551 F.3d 616, 626 (7th Cir. 2008),
and we see no reason not to do so here. Moreover, the
No. 08-3440 17
administrative record of Barradas’s conviction in the
Form I-213 constitutes reasonable, substantial, and proba-
tive evidence that Barradas was adjudicated guilty.
The second prong of the definition is more difficult
to establish without a formal judgment in the record.
Barradas testified that he went to federal court, that his
case was resolved, and that the government gave him “a
lesser sentence . . . which it was not that big or grave.”
He also stated “[t]hey did not have me pay a fine and
that they would not send be [sic] back to Mexico,” but
later merely stated that he “was not going to pay a fine.”
It is not clear precisely what Barradas’s sentence or pos-
sible fine was; his testimony alone fails to clearly, unequiv-
ocally, and convincingly satisfy part (ii). However,
when we consider the Form I-213 as well, we are con-
vinced that the record as a whole supports the con-
clusion that “some form of punishment, fine, or restraint
on [Barradas’s] liberty” was imposed.
Officer DeLaFuente’s addendum to the Form I-213
indicates that Barradas was paroled into the United States
on October 11, 2005, because there was inadequate deten-
tion space at the Port Isabel Service Processing Center
(“PISPC”). Although Barradas was readmitted to the
United States, the alternative outcome—detention at the
PISPC—would have been a sufficient restraint on his
liberty. Between Barradas’s testimony 8 about his “lesser
sentence” and the Form I-213’s indication that he was
8
Our conclusion that Barradas’s testimony was not improperly
compelled, see infra Part II.B.1, permits us to consider
Barradas’s testimony in our analysis here.
18 No. 08-3440
initially ordered detained at the PISPC, we are
satisfied that the record as a whole contains sufficient
reasonable, substantial, and probative evidence from
which the IJ and BIA could conclude that the govern-
ment met its burden.9
B. Due Process Violations
Barradas alleges two due process violations. First, he
asserts that the IJ violated his due process rights when
he told Barradas that he would take an “adverse infer-
ence” if Barradas chose to “stand mute” at the hearing;
Barradas claims he was “compelled” to testify “in the
absence of any evidence showing he was convicted of
alien smuggling.” Second, Barradas contends that once
he took the stand to testify, the IJ interrogated him ex-
9
Even if we were to find the evidence insufficient, as Barradas
urges us to, on remand the government would simply have to
produce the record of his conviction it now claims to have
found on PACER to unambiguously satisfy its burden. We note
that “it is pointless to remand if ‘it is clear what the agency
decision must be.’ ” Yang v. INS, 109 F.3d 1185, 1194 (7th Cir.
1997) (quoting Rosendo-Ramirez, 32 F.3d at 1094). Similarly, we
agree with the BIA’s characterization of the IJ’s unfortunate
misstatement of the mens rea requirement (“knew, or should
have known” instead of the correct “knowingly”) for Barradas’s
removal as harmless error in light of the other evidence demon-
strating the existence of an adequate mens rea. See Balazoski
v. INS, 932 F.2d 638, 640 (7th Cir. 1991) (“Whether the IJ used
the incorrect legal standard is irrelevant. We review the
decision of the BIA, not the IJ.”).
No. 08-3440 19
cessively and went so far as to “assume the role of counsel
for the Government.”
We review Barradas’s claims that he was denied due
process of law de novo. Alimi, 489 F.3d at 834. “In cases
claiming due process violations in immigration proceed-
ings, . . . proceedings which meet the statutory and reg-
ulatory standards governing the conduct of removal
hearings, as a general rule, comport with due process.”
Id. (citing Apouviepseakoda v. Gonzales, 475 F.3d 881, 884-85
(7th Cir. 2007)).
1. Compelled Testimony
At the beginning of his hearing, Barradas admitted NTA
allegations (1)-(3) and denied allegation (4). The IJ then
admitted evidence, including the Form I-213 and criminal
complaint, and asked the government if it wanted to
examine Barradas. Barradas objected to all questioning.
His counsel explained, “I think it’s the Government’s
burden. I don’t think [it] can meet [its] burden by ques-
tioning him in this hearing.” The government coun-
tered that if Barradas declined to testify, it would ask
the IJ to take the reports it had submitted into full con-
sideration. The IJ then stated that “the respondent has
no right to stand mute at this particular time. If he does,
I will draw an adverse inference from that. . . . It’s not
improper to have him examined. . . .” Barradas then took
the stand, the IJ administered the oath to him through
an interpreter, and the government began asking ques-
tions. At no further point did Barradas attempt to
remain silent or otherwise make an effort to avoid answer-
20 No. 08-3440
ing questions related to alien smuggling; his counsel
only objected to the government’s questions about unre-
lated domestic violence incidents.
Barradas does not dispute that the IJ is permitted to
draw adverse inferences from silence in civil immigration
proceedings. Indeed, both parties agree that under
BIA precedent, a respondent in an immigration pro-
ceeding confronted with evidence of his deportability
leaves himself open to adverse inferences from his
silence. In re Guevara, 20 I. & N. Dec. 238, 241-42 (B.I.A.
1991). Barradas also recognizes that the BIA views this
principle as one of burden-shifting: if the government
establishes a prima facie case for removability, then the
burden shifts to the respondent. See In re Vivas, 16 I. & N.
Dec. 68, 69 (B.I.A. 1977) (“[N]otwithstanding the require-
ment of clear, convincing and unequivocal evidence to
establish deportability, a respondent may properly be
required to go forward with evidence to rebut prima
facie showings by the [DHS].”).
Barradas’s only contention here is that the govern-
ment never made its requisite prima facie showing. He
claims that the IJ’s threat to make an adverse inference
was an improper infringement of due process in his
case because the government did not meet its initial
burden of removability before the IJ made the statement.
Specifically, he argues that the government did not satis-
factorily prove the existence of his conviction for alien
smuggling.
Our question then is whether the government’s
evidence, before Barradas testified, established his con-
No. 08-3440 21
viction—and consequent removability—clearly, convinc-
ingly, and unequivocally. If it did, then the IJ would
have been permitted to draw an adverse inference
from Barradas’s silence and Barradas’s due process
argument on this point must fail. If the government did not
make a prima facie showing, then the IJ’s statement may
be viewed as impermissibly compelling Barradas to testify.
Here, we find that the government adequately satisfied
its burden to demonstrate Barradas’s removability
before the IJ made his “adverse inference” statement.
Although Barradas’s testimony corroborated and
clarified the information contained in the documentary
evidence, it was not a required complement to the gov-
ernment’s prima facie case. See Cabral-Avila v. INS, 589
F.2d 957, 959 (9th Cir. 1978) (“The immigration judge
correctly decided that the petitioners were required to
rebut the finding of deportability due to the admission
of the I-213 forms. Once the forms have been properly
admitted, the [government’s] prima face case of
deportability is made.”). We cannot reverse the order of
the BIA unless we find that the evidence compels the
conclusion that the BIA ruled incorrectly, Rosendo-
Ramirez, 32 F.3d at 1087, and the evidence in this case
simply does not compel such a conclusion.
2. Excessive Interrogation
Barradas’s final argument is that the IJ violated his due
process rights by going “well beyond his role as fact-
finder” to become “the de facto co-counsel for DHS.”
22 No. 08-3440
Barradas asserts that the IJ’s excessive questioning and
continued interruption of his testimony denied him the
fair hearing to which he was entitled.
Immigration judges have the power to “interrogate,
examine, and cross-examine the alien and any witnesses.”
8 U.S.C. § 1229a(b)(1). They are permitted to use their
statutory authority to “focus the proceedings and exclude
irrelevant evidence,” though they may not “bar[ ] complete
chunks of oral testimony that would support the appli-
cant’s claim.” Kerciku v. INS, 314 F.3d 913, 918 (7th Cir.
2003) (per curiam). Essentially, IJs’ “ ‘broad discretion to
control the manner of interrogation in order to
ascertain the truth,’ ” Apouviepseakoda, 475 F.3d at 885(quoting Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997)), is
bounded only by the due process requirement that an
alien be afforded a meaningful opportunity to be heard,
see Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538 (7th
Cir. 2005). “In the end, we must determine whether,
given the totality of the circumstances, [Barradas] had
a full and fair opportunity to put on [his] case.” Id.The circumstances here indicate that Barradas had a
full and fair opportunity to present his case. The IJ con-
sidered Barradas’s evidentiary objections before ruling
on them. He interjected his own questions into the
hearing “just for . . . clarification on a line of testimony”
Barradas gave, namely about the birth certificates and
how Anyyensy and Eduardo came to travel with
Barradas, and only asked Barradas an extended series of
questions after the government concluded its exam-
ination of him. The IJ did not interrupt Barradas to
No. 08-3440 23
ask irrelevant or inappropriate questions, see Castilho
de Oliveira v. Holder, 564 F.3d 892, 899-900 (7th Cir. 2009),
nor did the IJ’s questioning rise to the level of being “so
pervasive that it was often difficult to determine who
was representing the federal government with more
fervor—the IJ or the government’s attorney,” Torres, 551
F.3d at 627. Further, the IJ did not bar any evidence
that Barradas sought to introduce. To the contrary,
Barradas’s counsel declined to examine him or present
any witnesses on his behalf.
Barradas also contends that the IJ’s failure to demand
production of “the supposed conviction for alien smug-
gling” also supports his claim of a due process viola-
tion. We fail to see how that contention can be reconciled
with Barradas’s simultaneous allegations that the IJ
inappropriately acted on behalf of the government. If the
IJ instructed the government as to what evidence to
produce and in what form to produce it, as Barradas
maintains he should have, that would be more akin to
becoming “de facto co-counsel” than any other instance
of the IJ’s conduct to which Barradas objects.
III. Conclusion
The IJ’s and the BIA’s determinations that the gov-
ernment proved Barradas’s conviction by clear, con-
vincing, and unequivocal evidence were supported by
reasonable, substantial, and probative record evidence.
Likewise, we find substantial support for the BIA’s find-
ings that Barradas was afforded a full and fair oppor-
24 No. 08-3440
tunity to present his case before a neutral IJ. Ac-
cordingly, Barradas’s petition for review is D ENIED.
9-23-09