Chitic Ren v. Holder, Jr.

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-2000
SEBASTIAN CHITIC REN,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
APPEALS
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
Benjamin C. Mizer, Acting Assistant Attorney General, Civil
Division, Mary Jane Candaux, Assistant Director, Office of
Immigration Litigation, and Aimee J. Carmichael, Trial Attorney,
Office of Immigration Litigation, United States Department of
Justice, on brief for respondent.
August 25, 2015
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch has been substituted for former
Attorney General Eric H. Holder, Jr., as the respondent.
BARRON, Circuit Judge. The petitioner, Sebastian Chitic
Ren, is a Guatemalan citizen who entered the United States in 1995.
In 2014, the Board of Immigration Appeals affirmed an Immigration
Judge's order removing Chitic from the United States for attempting
to obtain a more favorable immigration status by fraud. The Board
of Immigration Appeals also denied Chitic's request for
cancellation of removal because it found that Chitic was ineligible
for such relief. Chitic petitions for review, making three
arguments against the Board of Immigration Appeals's decision. We
reject each of Chitic's arguments and deny the petition for review.
I.
Chitic argues that the Immigration Judge violated
Chitic's due process rights when the Immigration Judge continued
Chitic's first removal hearing. To support that argument, Chitic
asserts that the government failed to offer any evidence that he
was removable at that first hearing, and that due process therefore
required that the Immigration Judge terminate the proceedings
against him rather than continue them. But even assuming there is
any force to the doubtful argument that the government should be
so limited in developing its evidence, "an alien must show
prejudice in order to succeed on a due process claim." Santosa v.
Mukasey, 528 F.3d 88, 94 (1st Cir. 2008). And here Chitic clearly
cannot.
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The record makes clear that the Immigration Judge
granted the continuance for Chitic's own benefit. At Chitic's
first removal hearing, the government sought to admit a report
written by an immigration officer which claimed that Chitic had
confessed to submitting a fraudulent application for Temporary
Protected Status.1 By statute, "[a]ny alien who, by fraud or
willfully misrepresenting a material fact, seeks to procure . . .
a visa, other documentation . . . or other benefit provided under"
federal immigration law is removable.2 8 U.S.C.
§ 1182(a)(6)(C)(i). Chitic objected to the admission of that
report, however, contending that there was reason to doubt the
accuracy of the author's account and that Chitic should be given
an opportunity to cross-examine him.
In response to the objection, the Immigration Judge
allowed Chitic to testify and try to make a showing that there was
a problem with the report. But, after hearing Chitic's testimony,
1 Temporary Protected Status is a form of relief from removal
available to citizens of certain designated foreign countries.
See generally 8 U.S.C. § 1254a. At the time of Chitic's
application, citizens of El Salvador were eligible for Temporary
Protected Status, but Guatemalan citizens like Chitic were not.
The government charged that Chitic had falsely claimed to be a
citizen of El Salvador in an effort to obtain Temporary Protected
Status despite not being entitled to it.
2 Chitic does not deny that Temporary Protected Status
constitutes either "other documentation" or an "other benefit"
under federal immigration law within the meaning of
§ 1182(a)(6)(c)(i).
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the Immigration Judge explained that he still believed that "the
weight of the evidence is that fraud was committed" by Chitic.
The Immigration Judge emphasized that he did not "for one moment
believe" Chitic that the report was incorrect. Nonetheless, the
Immigration Judge decided to continue the proceedings so that he
could "nail this down to see, determine who's credible and who's
not here." Thus, the Immigration Judge ordered the continuance so
that Chitic could cross-examine the officer who wrote the report,
as Chitic had asked to do.
Given this record, the continuance clearly did not harm
Chitic. The continuance increased his opportunity to challenge
the basis for his removal. And while Chitic does contend that the
continuance gave the government a second chance it should not have
had to prove Chitic removable on the separate charge that he had
entered without inspection, Chitic was not ordered removed for
entering without inspection. He was ordered removed for his
fraudulent Temporary Protected Status application. The removal
order was thus based on the report that the continuance allowed
Chitic more of an opportunity to challenge. Chitic's due process
argument must therefore fail.
II.
Chitic next argues that the Board of Immigration Appeals
erred in finding him removable based on the allegedly fraudulent
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Temporary Protected Status application.3 The Board of Immigration
Appeals found that "the record contain[ed] clear and convincing
evidence that [Chitic] misrepresented that he was a citizen of El
Salvador in order to obtain Temporary Protected Status." We review
the Board of Immigration Appeals's factual finding that Chitic had
committed fraud for substantial evidence. See Budiono v. Mukasey,
548 F.3d 44, 48 (1st Cir. 2008).
The Board of Immigration Appeals relied for its fraud
finding on multiple immigration forms that Chitic signed and that
related to Temporary Protected Status. Those forms claimed that
Chitic was a Salvadoran citizen even though he was not. And the
Board of Immigration Appeals explained that although Chitic
disclaimed knowledge of the contents of some of those forms, he
admitted that he knew at least one of them -- what the Board called
an "appeal letter" -- contained the false citizenship claim when
he signed it.
Chitic challenges the Board's finding solely by pointing
to some contrary evidence in the record, including his own
testimony that he was unaware of the contents of some of the forms
when he signed them. But even Chitic admits in his brief to this
3
Chitic also argues that the Immigration Judge erred in
finding him removable for having entered the United States without
inspection. But the Board of Immigration Appeals relied solely on
the fraud ground in finding Chitic removable. For that reason, we
address only the fraud ground.
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Court that he testified, regarding the appeal letter, that "he
needed his work permit so he signed it, knowing that it said he
was Salvadoran." That direct admission of fraud in pursuit of an
immigration benefit provides substantial evidence to sustain the
Board's finding that Chitic was removable for fraud under 8 U.S.C.
§ 1182(a)(6)(C)(i).
III.
Finally, Chitic argues that the Board of Immigration
Appeals erred when it found him ineligible for a form of relief
known as cancellation of removal. See id. § 1229b(b)(1)(A)-(D).
Chitic had the burden of proving his eligibility for that form of
relief. See id. § 1229a(c)(4)(A). Chitic's own testimony,
however, suggested that he had entered the United States on a
crewman's visa, which would have made him ineligible for
cancellation of removal. See id. § 1229b(c)(1). The Board of
Immigration Appeals agreed with the Immigration Judge that,
because "it appear[ed] that [Chitic] entered the United States as
an alien crewman," Chitic had failed to meet his burden of showing
he was eligible for cancellation of removal.
Chitic argues that what he calls the Board's "finding"
that he entered on a crewman's visa conflicts with the Immigration
Judge's separate finding -- which the Board of Immigration Appeals
did not address -- that Chitic was removable for having entered
the country without inspection. As Chitic points out, an alien
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who entered the United States without inspection would, by
definition, not have entered on a crewman's visa. And, in
consequence of that claimed conflict, Chitic asserts that the
Board's decision "def[ies] logic" and should be reversed for that
reason.
But the Immigration Judge and the Board of Immigration
Appeals did not "find" that Chitic entered the United States on a
crewman's visa. A fair reading of the record shows that the
Immigration Judge and the Board found only that, because it
"appeared" that Chitic had entered on a crewman's visa, Chitic had
not met his burden of proving his eligibility for cancellation of
removal.4 And that finding was wholly consistent with the
Immigration Judge's separate finding that, because Chitic's means
of entry was unclear (in part "because of [Chitic's] inconsistent
statements" concerning his claim that he entered on a crewman's
visa), Chitic had also failed to meet his burden of proving that
he had not entered without inspection. See id. § 1229a(c)(2)(B).
The Board of Immigration Appeals thus did not act inconsistently
4The Immigration Judge explained that he had sustained the
entry without inspection charge because "the burden of proof [was]
on" Chitic, and "he couldn't prove to me that he entered
otherwise." But as the Immigration Judge further explained, with
respect to cancellation of removal "the burden of proof is on him
again to show he's eligible . . . . And at this point he's not
carrying the burden of proof on that, either."
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when it found that Chitic did not meet his burden of proving that
he was eligible for cancellation of removal.
IV.
For the foregoing reasons, we deny Chitic's petition for
review.
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