Avram v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION JUN 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FLORENTINA MARINELA AVRAM, No. 06-71345
Petitioner, Agency No. A078-184-759
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
FLORENTINA MARINELA AVRAM, No. 06-72849
Petitioner, Agency No. A078-184-759
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 18, 2010 **
San Francisco, California
Before: BYBEE, N.R. SMITH, and TYMKOVICH,*** Circuit Judges.
Appellant Florentina Marinela Avram appeals the decision of the Board of
Immigration Appeals (BIA) affirming her removability for entry fraud and denying
her request for withholding of removal. Avram’s claims of error arise mainly from
actions of the Immigration Judge (IJ) relating to his finding that she was also
removable for marriage fraud.
Avram claims the IJ violated her due process rights when he admitted a
hearsay statement from her ex-husband without making any attempt to procure the
declarant for cross-examination, citing our decisions in Hernandez-Guadarrama v.
Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005), and Saidane v. INS, 129 F.3d 1063,
1066 (9th Cir. 1997). We review due process challenges in immigration
proceedings de novo. Zetino v. Holder, 596 F.3d 517 (9th Cir. 2010). However,
the party claiming a due process violation must also show that the alleged error
prejudiced her—in other words, the party must show that “the IJ’s conduct
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Timothy M. Tymkovich, Circuit Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
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potentially affected the outcome of the proceedings.” Cano-Merida v. INS, 311
F.3d 960, 965 (9th Cir. 2002) (internal punctuation omitted).
Even if we assume that the IJ’s decision to admit this hearsay statement
violated Avram’s due process and statutory rights to cross-examine witnesses
against her, she has not shown this error affected the determination that she was
removable. Because Avram has not challenged the finding that she was removable
for entry fraud, and because the record clearly supports this finding, she has failed
to demonstrate prejudice.
Likewise, Avram’s claims that her Miranda rights were violated are
unavailing. Even if Avram was entitled to a Miranda warning during her visa
interview under United States v. Chen, 439 F.3d 1037, 1042 (9th Cir. 2006)
(immigration officials should give Miranda warnings during interviews if there is
an “especially heightened risk” of prosecution), the protections of Miranda were
not applicable to her deportation proceeding because “deportation proceedings are
not criminal prosecutions, but are civil in nature.” United States v. Salgado, 292
F.3d 1169, 1173 (9th Cir. 2002). Nor was she entitled to Miranda warnings during
her deportation hearing. Id.Additionally, Avram asserts that she was eligible for cancellation of removal
for battered spouses. We lack jurisdiction to address this issue, because she failed
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to raise it to the BIA. See Cordon-Garcia v. INS, 204 F.3d 985, 988 (9th Cir.
2000).
Finally, we review the BIA’s decision to deny withholding of removal for
substantial evidence. Zetino, 596 F.3d at 522. It is the burden of the applicant to
supply sufficient evidence of past or likely future persecution to support a
withholding of removal claim. Id. at 527. The BIA’s determination that Avram
was not eligible for this form of relief was “supported by reasonable, substantial,
and probative evidence on the record considered as a whole,” id., and therefore we
will not disturb it on appeal.
DENIED.
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