Tomas Alejandro Mancinas-Hernandez v. US Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14801
Non-Argument Calendar
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Agency No. A088-054-789
TOMAS ALEJANDRO MANCINAS-HERNANDEZ,
a.k.a. Filiberto Alvarado,
Petitioner-Appellant,
versus
US ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 6, 2013)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Thomas Alejandro Mancinas-Hernandez (“Hernandez”) petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of the
Immigration Judge’s (“IJ”) decision that found he was removable and statutorily
ineligible for adjustment of status. After review, we deny the petition.
I. BACKGROUND FACTS
A. Removal Proceedings
In June 1996, Hernandez, a citizen of Mexico, was admitted to the United
States as a nonimmigrant visitor with authorization to remain until July 2, 1996.
Hernandez remained in the United States, without authorization, for years beyond
the date permitted by his visa. In 2003, Hernandez began working at Alatrade
Foods (“Alatrade”) in Alabama without authorization. In 2006, Hernandez
married a U.S. citizen with whom he had two children.
In 2007, Hernandez was served with a Notice to Appear (“NTA”) charging
him with removability. The initial NTA charged Hernandez with being present in
the United States without inspection. An amended NTA, however, dropped the
initial ground and instead charged Hernandez with three new grounds for
removability: (1) remaining in the United States longer than permitted,
Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B); (2) failing to comply with the conditions of the nonimmigrant
status under which he was admitted by working at Alatrade, INA § 237(a)(1)(C), 8
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U.S.C. § 1227(a)(1)(C); and (3) falsely representing himself to be a United States
citizen for any purpose or benefit under the INA by signing an I-9 Form for
employment verification using the name Filiberto Alvarado to obtain work at
Alatrade, INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D).
Hernandez conceded removability on the first two grounds, but denied the
third ground and sought adjustment of status to a lawful permanent resident based
on his marriage to a U.S. citizen. An alien bears the burden of proving his
eligibility for adjustment of status, including, inter alia, that he is admissible. INA
§ 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A), INA § 245(a), 8 U.S.C. § 1255(a). An
alien who falsely claims U.S. citizenship on the employment verification
documentation required by INA § 274A, 8 U.S.C. § 1324a, is inadmissible. INA
§ 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Thus, an alien who does so is
not eligible to adjust his status to lawful permanent resident.
B. Hearings Before the IJ
At a hearing before the IJ, Hernandez, represented by counsel, admitted that
he resided at the address on the I-9 Form, but denied signing the I-9 Form.
Hernandez testified that he obtained employment at Alatrade under his real name
without completing any forms or showing any identification other than his
Mexican-issued identification.
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The government sought to introduce Hernandez’s sworn statement given to
an immigration officer in which Hernandez admitted he had been employed at
Alatrade under the name Filiberto Alvarado. Hernandez objected because the
government had not complied with the immigration court’s rule requiring
submission of evidence fifteen days before the hearing. The IJ overruled the
objection because Hernandez’s sworn statement was impeachment evidence.
Hernandez admitted that he had signed the sworn statement, but said that he could
not read English and had not known at the time what he was signing. Hernandez
stated that immigration officials told him “to sign papers in order to not get
deported and detained.”
In his defense, Hernandez submitted documents showing that in March 2007
Hernandez was charged in Alabama state court with two counts of second degree
forgery, but that the state court dismissed the case in March 2010 after a grand jury
“no billed” the charges.
The IJ continued the April 22, 2011 hearing to give Hernandez an
opportunity to obtain documentation from his former employer Alatrade showing
that Hernandez had worked there under his real name and had not submitted false
identifying information. At a subsequent May 5, 2011 hearing, however,
Hernandez’s counsel indicated that Hernandez did not wish to supplement the
record.
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C. IJ’s Decision
Following the second hearing, the IJ issued an oral decision finding
Hernandez removable on all three charges. The IJ sustained the first two charges
based on Hernandez’s concessions. As to the third, disputed ground, the IJ
concluded that the government had carried its burden to establish Hernandez’s
removability.
The IJ discredited Hernandez’s testimony denying that he worked at
Alatrade under the alias Filiberto Alvarado and that he signed the I-9 Form. The IJ
found that Hernandez’s sworn statement that he had used the alias to work at
Alatrade had a high degree of reliability and was properly admitted for
impeachment purposes. The IJ noted, however, that he would have found
Hernandez not credible even if he had excluded Hernandez’s sworn statement.
The IJ further explained that Hernandez’s testimony about how he obtained the job
at Alatrade was implausible without corroborating evidence from Alatrade.
Accordingly, the IJ concluded that the government had demonstrated
removability under INA § 237(a)(3)(D) for falsely claimed U.S. citizenship on the
I-9 Form to obtain employment at Alatrade and that Hernandez had not
demonstrated eligibility for adjustment of status. The IJ ordered Hernandez
removed to Mexico.
D. Appeal to the BIA
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On appeal to the BIA, Hernandez challenged the IJ’s admission of
Hernandez’s sworn statement and the IJ’s adverse credibility finding. The BIA
dismissed Hernandez’s appeal. The BIA agreed with the IJ that Hernandez’s
sworn statement was properly admitted for impeachment purposes and, as such,
was not subject to the “generally applicable deadlines for timely submission of
evidence.” The BIA concluded that the use of the sworn statement was not
fundamentally unfair and was “probative with respect to the veracity of
[Hernandez’s] testimony.”
Because Hernandez’s sworn statement was properly admitted, the BIA also
determined that the IJ’s credibility finding as to Hernandez’s testimony was not
clear error. The BIA explained that the IJ’s credibility finding was permissibly
based on inconsistencies between Hernandez’s sworn statement and his hearing
testimony. The BIA specifically noted that: (1) although Hernandez identified his
signature on the sworn statement as his, he disclaimed ever using the Filiberto
Alvarado alias for employment purposes; (2) Hernandez’s explanations had not
persuaded the IJ; and (3) although Hernandez was given a continuance and the
opportunity to obtain employment records from Alatrade to verify that he worked
there under his own name, he failed to present such evidence.
Finally, the BIA rejected Hernandez’s claim that because the IJ had not
mentioned the grand jury’s “no bill” in his decision, the IJ had not sufficiently
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taken into account that evidence. Nonetheless, the BIA took administrative notice
of this evidence and concluded that, when considered “within the context of the
Immigration Judge’s other factual and credibility findings,” it did not establish
clear error in the IJ’s decision. The BIA noted that: (1) the court document did not
indicate what charge was “no billed,” or the basis for the “no bill” determination
and thus was “not entitled to any considerable degree of weight”; and (2) a false
claim conviction was not necessary to sustain a charge under § 237(a)(3)(D).
II. DISCUSSION
A. Jurisdiction
As a threshold matter, we note that we lack jurisdiction to review the
discretionary decision to deny Hernandez’s application for adjustment of status.
See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). However, we retain
jurisdiction to review colorable constitutional claims and questions of law, such as
statutory eligibility for discretionary relief. See INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D); Alvarado v. U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir.
2010). Hernandez raises two such claims: (1) whether the IJ’s admission of his
sworn statement was “fundamentally unfair,” and thus violated his due process
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rights; and (2) whether the IJ violated the Full Faith and Credit Act (“FCCA”) by
failing to adequately consider the grand jury’s return of a “no bill.” 1
B. Due Process Claim
Aliens are entitled to due process in removal proceedings, which is “satisfied
only by a full and fair hearing.” Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir.
1987). To prevail in a due process challenge, the alien must demonstrate
substantial prejudice by showing that, absent the alleged due process violation,
“the outcome would have been different.” Id. ; see also Patel v. U.S. Att’y Gen.,
334 F.3d 1259, 1263 (11th Cir. 2003) (stating that alien could not show due
process violation where the result of the removal proceedings “would have been
the same in the absence of the alleged procedural deficiencies”). In other words,
an alien asserting that the admission of evidence amounted to a due process
violation must show that, but for the admitted evidence, the outcome would have
been different.
To safeguard due process rights, the INA provides that an alien shall have,
among other things, “a reasonable opportunity to examine the evidence against the
alien.” The Federal Rules of Evidence, however, do not apply in immigration
1
“We review our subject matter jurisdiction de novo.” Alvarado v. U.S. Att’y Gen., 610
F.3d 1311, 1314 (11th Cir. 2010). “We review only the BIA’s decision, except to the extent it
expressly adopts the IJ’s opinion or reasoning.” Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307
(11th Cir. 2013) (quotation marks and brackets omitted). We review de novo legal conclusions
and constitutional issues. Id.8
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proceedings. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir. 2010).
Rather, in immigration proceedings, evidence is admissible “if it is probative and
its use is not fundamentally unfair so as to deprive [the] petitioner of due process.”
See Tashnizi v. INS, 585 F.2d 781, 782-83 (5th Cir. 1978) (concerning hearsay
evidence). 2
An IJ may consider evidence in the form of an “oral or written statement that
is material and relevant to any issue in the case previously made by the respondent
or any other person.” 8 C.F.R. § 1240.46(b). Under the rules governing
immigration court procedure, “[f]or individual calendar hearings involving non-
detained aliens, filings must be submitted at least fifteen (15) days in advance of
the hearing.” U.S. Dep’t of Justice, Exec. Office of Immigration Rev.,
Immigration Court Practice Manual (“Practice Manual”), § 3.1(b)(ii)(A).
However, this filing requirement “does not apply to exhibits or witnesses offered
solely to rebut and/or impeach.” Id.3
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
3
Contrary to Hernandez’s assertion, the Practice Manual’s filing requirements are not
necessarily binding, but rather are binding on the parties subject to the IJ’s discretion. See
Practice Manual, § 1.1(b) (stating that the manual’s provisions are binding unless the IJ “directs
otherwise in a particular case”), § 3.1(d)(ii) (giving the IJ “the authority to determine how to treat
an untimely filing” and warning parties that the consequences of untimely filing an exhibit is
“sometimes” that the evidence is not entered or is given less weight).
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Here, Hernandez has not shown a due process violation. First, we reject
Hernandez’s claim that the IJ failed to comply with the Practice Manual in
admitting Hernandez’s sworn statement. The sworn statement was admitted only
after Hernandez testified that he did not work at Alatrade under the alias Filiberto
Alvarado. Hernandez’s prior sworn statement directly contradicted his hearing
testimony and thus was impeachment evidence. To the extent Hernandez
complains that the evidence was used to prove he signed the I-9 Form as Filiberto
Alvarado, a U.S. citizen, the exception to the pre-hearing filing requirement applies
to both impeachment and rebuttal evidence.
Moreover, the IJ found that, even absent the sworn statement, Hernandez’s
hearing testimony—that he obtained employment at Alatrade under his own name
without completing any forms and by showing only his Mexican-issued
identification—was “almost implausible” and required corroboration from
Alatrade to be believed. Although Hernandez was given two weeks to obtain such
evidence from Alatrade, he failed to do so. Thus, the IJ’s adverse credibility
determination did not turn on the sworn statement, but on Hernandez’s failure to
corroborate his otherwise implausible testimony even though he was given
additional time to do so. Under these circumstances, Hernandez has not shown
that, had the IJ excluded the sworn statement, the outcome of his removal hearing
would have been different. “Without the necessary showing of substantial
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prejudice, [Hernandez’s] challenge to the fairness of the proceeding fails.” See
Ibrahim, 821 F.2d at 1550. 4
Finally, there is no merit to Hernandez’s argument that by admitting the
sworn statement, the IJ somehow impermissibly shifted the burden of proof to
Hernandez to prove that he was not removable. The record reflects that the IJ
clearly understood that the government had the burden to prove Hernandez’s
removability by clear and convincing evidence and that Hernandez had the burden
to prove that he was eligible for adjustment of status and properly applied the
parties’ respective burdens in his final removal order.
C. FFCA Claim
Hernandez argues that the IJ violated the Full Faith and Credit Act by
making findings inconsistent with the state court grand jury’s “no bill.”
The FFCA provides that “records and judicial proceedings of any court of
any such State . . . shall be proved or admitted in other courts within the United
States . . . [and] shall have the same full faith and credit in every court within the
United States” as in the courts of that State. 28 U.S.C. § 1738. Under the FFCA, a
federal court generally must give a state court judgment “the same effect that it
4
While we have jurisdiction to review constitutional issues and questions of law as to the
denial of Hernandez’s request for adjustment of status, we do not have jurisdiction to review the
IJ’s underlying fact findings. See Jean-Pierre v. U.S Att’y Gen., 500 F.3d 1315, 1322 (11th Cir.
2007) (reviewing whether undisputed facts met the legal standard for torture). Thus, to the
extent Hernandez challenges the IJ’s adverse credibility finding or the factual determination that
Hernandez signed the I-9 Form using the name Filiberto Alvarado and represented himself to be
a U.S. citizen to obtain employment at Alatrade, those findings are not reviewable.
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would have in the courts of the State in which it was rendered.” Matsushita Elec.
Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 369, 116 S. Ct. 873, 876 (1996). To
determine the preclusive effect of a state court judgment in a subsequent federal
action, we look to the preclusion rules of the state. Marrese v. Am. Academy of
Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S. Ct. 1327, 1331-32 (1985).
The BIA has applied the FFCA in immigration proceedings. Specifically, in
cases where the basis for removability is a criminal conviction, the BIA gives full
faith and credit to a state court judgment showing that the alien’s conviction has
been vacated. See In re Rodriguez-Ruiz, 22 I.&N. Dec. 1378, 1380 (BIA 2000)
(involving charge of removability as an alien convicted of an aggravated felony).
This Court has concluded, however, that when the basis for removability is the
underlying conduct rather than the criminal conviction itself, the underlying facts
can still support a finding of removability even if the conviction is vacated so long
as “they are established by reasonable, substantial and probative evidence.”
Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir. 2010) (involving charge
of removability as an alien whom the Attorney General “knows or has reason to
believe” is a drug trafficker).
Here, as in Garces, the grounds for removability did not hinge on the
existence of a criminal conviction. Rather, the government needed to prove only
that Hernandez falsely claimed he was a U.S. citizen on an I-9 Form, whether or
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not that conduct led to a criminal conviction. Thus, the underlying facts that led to
Hernandez’s now-dismissed criminal charges can also support a finding of
removability if they were properly proved by the government. See Garces, 611
F.3d at 1347. Moreover, Hernandez, not the government, bore the burden of
establishing his eligibility for adjustment of status “clearly and beyond doubt.”
See INA §§ 240(c)(2)(A), (4)(A), 8 U.S.C. §§ 1229a(c)(2)(A), (4)(A).
In any event, there is nothing to suggest that the BIA did not give the “no
bill” the same effect that an Alabama court would give it. Hernandez did not cite
any Alabama law indicating that the state court’s dismissal of the forgery charges
based on the grand jury’s return of a “no bill” would bar any future civil litigation,
much less litigation on the issue of whether Hernandez made a false claim of U.S.
citizenship by signing the I-9 Form. Our own research suggests otherwise. See Ex
Parte State Alcoholic Beverage Control Bd., 654 So. 2d 1149, 1152-53 (Ala. 1994)
(concluding that the dismissal of criminal charges did not preclude a subsequent
state administrative proceeding); M.L.E. v. K.B. ex rel. A.B., 794 So. 2d 1143,
1147 (Ala. Civ. App. 2000) (concluding that an acquittal did not preclude a
subsequent civil action).
Additionally, contrary to Hernandez’s claims, the state court documents do
not show why the grand jury declined to indict him, what evidence the grand jury
examined before making its decision, or even if the dismissed forgery charges were
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based on Hernandez’s alleged signing of the I-9 Form in the name of Filiberto
Alvarado. The state court documents show only that an Alabama grand jury
declined to indict Hernandez on forgery charges. Under these circumstances, the
IJ’s fact findings did not violate the FFCA. 5
PETITION DENIED.
5
There is no merit to Hernandez’s claim that the state court documents were not
considered. The parties discussed the documents during Hernandez’s hearings and in their briefs
filed with the IJ. Although the IJ did not mention them in his oral decision, the IJ is not required
to discuss explicitly every piece of evidence an alien presents. See Ayala v. U.S. Att’y Gen., 605
F.3d 941, 948 (11th Cir. 2010). Further, the BIA took administrative notice of the state court
documents and explicitly addressed them, but concluded that they had little probative weight
because they did not indicate the basis for the grand jury’s “no bill.” See 8 C.F.R.
§ 1003.1(d)(3)(iv) (permitting BIA to take administrative notice of the contents of official
documents).
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