Gomez-Perez v. Holder

FILED
NOT FOR PUBLICATION JAN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE MANUEL GOMEZ-PEREZ, No. 05-74574
Petitioner, Agency No. A075-580-176
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Jose Manuel Gomez-Perez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order summarily affirming an
immigration judge’s (“IJ”) decision finding him removable for participating in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
SS/Research
alien smuggling. We have jurisdiction under 8 U.S.C. § 1252. We review de novo
claims of due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107
(9th Cir. 2003), and review for substantial evidence the agency’s findings of fact,
Urzua Covarrubias v. Gonzales, 487 F.3d 742, 744 (9th Cir. 2007). We deny the
petition for review.
Substantial evidence supports the IJ’s finding that Gomez-Perez is
removable for alien smuggling where the record contains evidence that Gomez-
Perez knew the smugglee was not his niece Maira, yet indicated to the immigration
inspector that the smugglee was Maira and the smugglee was a part of his family.
See Altamirano v. Gonzales, 427 F.3d 586, 592 (9th Cir. 2005).
Gomez-Perez’s due process rights were not violated by the admission of the
smuglee’s Form I-213 (Record of Deportable/Inadmissible Alien) because the form
was probative as to the smugglee’s alienage, and its admission was not
fundamentally unfair. See Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir. 1995)
(noting that “[t]he sole test for admission of evidence [in a deportation proceeding]
is whether the evidence is probative and its admission is fundamentally fair,” and
rejecting argument that a Form I-213 is inadmissible as hearsay). The IJ properly
denied Gomez-Perez’s request to cross-examine the preparers of the smugglee’s
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Forms-213 and 831 and his Form I-213, because Gomez-Perez did not produce
probative evidence that cast doubt on the documents’ reliability. See id.Finally, Gomez-Perez’s contention that the IJ violated his duties as a neutral
fact finder is not supported by the record.
PETITION FOR REVIEW DENIED.
SS/Research 3 05-74574