Cardona-Hernandez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISAAC CARDONA-HERNANDEZ, No. 22-410
Petitioner, Agency No. A043-281-809/
v.
MERRICK B. GARLAND, U.S. Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2023**
San Francisco, California
Before: SCHROEDER, CALLAHAN and BUMATAY, Circuit Judges.
Isaac Cardona-Hernandez, a citizen of Guatemala, petitions for review of a
decision by the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) admission of criminal conviction records in removal proceedings and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denying him relief from removal to Guatemala. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition for review.
We review the BIA’s determination of legal questions de novo but review
the BIA’s findings of fact for substantial evidence and will uphold them unless the
evidence compels a contrary result. Padilla-Martinez v. Holder, 770 F.3d 825, 830
(9th Cir. 2014).
Cardona-Hernandez alleges that the conviction records submitted by the
Department of Homeland Security (DHS) during his removal proceedings were not
properly authenticated under 8 U.S.C. § 1229a(c)(3)(C) and therefore could not
provide the basis for removal under 8 U.S.C. § 1227(a)(2)(A)(iii), based on a
conviction of rape in violation of California Penal Code § 261(a)(2), an aggravated
felony as defined by 8 U.S.C. § 1101(a)(43)(A). His argument is not persuasive.
Criminal conviction records “may be authenticated under INS regulations, or
by ‘any procedure that comports with common law rules of evidence.’” Sinotes-
Cruz v. Gonzales, 468 F.3d 1190, 1196 (9th Cir. 2006) (quoting Iran v. I.N.S., 656
F.2d 469, 472 n.8 (9th Cir. 1981)). “Admissibility is generally warranted as long
as there is ‘some sort of proof that the document is what it purports to be.’”
Padilla-Martinez, 770 F.3d 825 at 833 (quoting Sinotes-Cruz, 468 F.3d at 1196).
The conviction records submitted by DHS contain sufficient indicia of
reliability to be admissible as evidence in Cardona-Hernandez’s removal
2
proceedings. First, the conviction records on their face give every indication of
being official Los Angeles County Superior Court records, particularly the abstract
of judgment. The abstract of judgment, which details Cardona-Hernandez’s rape
conviction and sentence, is embossed with a seal from the Los Angeles County
Superior Court on the first page and is signed by a clerk of the court on each of the
remaining pages. See 8 C.F.R. § 1003.41(a)(5); Padilla-Martinez, 770 F.3d at 833(holding that a facsimile copy of a transcript of a state court change-of-plea
proceeding had sufficient indicia of reliability on its face to establish admissibility,
even absent authentication from an immigration official).
Second, a deportation officer from United States Immigration and Customs
Enforcement certified in writing that he received the conviction records by
facsimile from the state prison where Cardona-Hernandez was housed. The
prison’s facsimile cover sheet includes an employee’s attestation that the
documents are copies of Cardona-Hernandez’s official records. It also lists the
same California Department of Corrections and Rehabilitation and Criminal
Identification and Information numbers as those reflected on the embossed abstract
of judgment. See Sinotes-Cruz, 468 F.3d at 1196 (admitting faxed copies of
conviction records that were certified by an immigration official and appeared to
be state court records even though certification by a state official was lacking).
3
In sum, regardless of Cardona-Hernandez’s other arguments, the abstract of
judgment supported by the deportation officer’s certification is admissible and
sufficient to establish Cardona-Hernandez’s conviction of an aggravated felony in
his removal proceedings.
The petition is DENIED.
4