Murdock v. Attorney General of the United States

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-3-2005
Murdock v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2338
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2338
CARLTON MURDOCK,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Immigration and Naturalization Service
Board of Immigration Appeals
(BIA No. A73-465-889)
Submitted Under Third Circuit LAR 34.1(a)
March 10, 2005
Before: NYGAARD, McKEE and RENDELL, Circuit Judges.
(Filed May 3, 2005)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Carlton Murdock appeals a final order of deportation issued by the Board of
Immigration Appeals on April 13, 2004. The Board had affirmed the Immigration
Judge’s finding that Murdock was an alien who remained in the United States longer than
his visitor visa permitted in violation of the former Immigration and Nationality Act, 8
U.S.C. § 1251(a)(1)(B). Murdock maintains that the Immigration Judge erred in: (1)
admitting evidence in the form of memoranda from immigration officials and a purported
sworn statement by Murdock without testimony as to the documents’ authenticity; (2)
admitting a Form I-213 Record of Deportable Alien into evidence that Murdock contends
contradicted other evidence and was therefore unreliable; (3) concluding that the
government satisfied its burden of proving Murdock’s alienage by clear, unequivocal, and
convincing evidence; and (4) finding that Murdock improperly invoked his Fifth
Amendment privilege against self-incrimination. Our jurisdiction arises under 8 U.S.C. §
1252(a). We will deny the petition for review.
As we write solely for the parties, our recitation of the facts will be limited to those
necessary to our determination. Murdock was apprehended at the border between the
United States and Canada after having been denied entry into Canada. The Immigration
and Naturalization Service initiated proceedings against him on May 27, 1995, charging
him with overstaying his visitor visa. On November 13, 1995, an Immigration Judge
ordered that he be deported to Jamaica. Murdock appealed the decision, and on April 3,
2002, the Board of Immigration Appeals remanded the case to the Immigration Judge for
a new hearing because the record from the 1995 proceeding had been lost.
At Murdock’s second hearing, the Immigration Judge admitted, over Murdock’s
2
objections, evidence offered by the government in the form of three memoranda signed by
government officials. The memoranda included Murdock’s initial statement to officials
that he was a United States citizen and his later admissions, including a sworn statement
by Murdock, that he was actually a Jamaican citizen who had fraudulently obtained a
United States passport. In addition, Murdock objected to the admission into evidence of a
Form I-213 Record of Deportable Alien that also indicated that he was a native and
citizen of Jamaica. When asked his name, Murdock refused to answer, and his attorney
indicated that Murdock was asserting his Fifth Amendment privilege against self-
incrimination. Eventually, Murdock admitted his identity, but refused to answer further
questions, again asserting his Fifth Amendment privilege. Finding that Murdock had
failed to present any evidence or testimony to refute the allegations against him, the
Immigration Judge ruled that there was clear, convincing, and unequivocal evidence that
Murdock was a deportable alien who had overstayed his visitor visa. On April 13, 2004,
the Board of Immigration Appeals affirmed the ruling of the Immigration Judge.
On appeal, Murdock contends that the Immigration Judge erred in allowing the
admission of the memoranda because they were not properly authenticated and the Form
I-213 because it was not trustworthy and in concluding that this evidence proved
Murdock’s alienage by clear, unequivocal, and convincing evidence. In addition,
Murdock argues that the Immigration Judge erred in finding that he improperly invoked
his Fifth Amendment privilege.
3
An Immigration Judge may consider evidence in the form of “any oral or written
statement that is material and relevant to any issue in the case.” See 8 C.F.R. §
1240.46(b). We have said that the test for admissibility of evidence in immigration
proceedings is “‘whether its use is fundamentally fair so as not to deprive the alien of due
process of law.’” Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003) (quoting
Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990)). To prove Murdock’s
alienage, the government offered documents that the INS District Director had certified as
an original or copy from its official records, one of which was a sworn statement signed
by Murdock and a Senior Immigration Inspector in which Murdock admitted to being a
Jamaican citizen, having no claim to United States citizenship, and fraudulently obtaining
a United States passport. Additionally, the government produced a Form I-213 Record of
Deportable Alien, a document that the Board of Immigration Appeals has said is
inherently trustworthy. See In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (BIA 1999).
Consistent with the other evidence offered by the government, the Form I-213 established
Murdock’s alienage as a Jamaican citizen. Through this showing, the government met its
burden of proving Murdock’s alienage by clear and convincing evidence and shifted the
burden of proving the time, place, and manner of entry into the United States to Murdock.
See 8 U.S.C. § 1361.
However, when the Immigration Judge asked whether the sworn statement was
accurate and properly attributable to him, Murdock asserted his Fifth Amendment
4
privilege and declined the opportunity refute the government’s evidence or elaborate on
the inconsistencies between the Form I-213 and his sworn statement that Murdock now
contends. Furthermore, Murdock’s refusal to testify entitled the Immigration Judge to
draw a negative inference that any answer he may have given would have been adverse to
his interests and to conclude that the statement was reliable and trustworthy. United
States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923).
We find that the Immigration Judge’s admission of the evidence was not so
fundamentally unfair as to deny Murdock his right to due process and that Murdock’s
alienage was established by clear, unequivocal, and convincing evidence.1 Accordingly,
we will DENY the petition for review.
1
Murdock additionally contends that the Immigration Judge erred in finding that he
improperly asserted his Fifth Amendment privilege. Because the Immigration Judge
allowed Murdock to assert his privilege and refuse to testify, we are unable to discern
what harm Murdock suffered.
5