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Espinoza v. Immigration & Naturalization Service

filed: January 12, 1995.

RAMIRO CRUZ ESPINOZA, PETITIONER,
v.
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A71-812-968. Original Opinion Previously Reported at:,.

Before: Betty B. Fletcher, David R. Thompson and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Fletcher.

Author: Fletcher

Order AMENDING OPINION, DENYING PETITION FOR REHEARING, AND REJECTING SUGGESTION FOR REHEARING EN BANC

FLETCHER, Circuit Judge:

Ramiro Cruz Espinoza seeks review of the Board of Immigration Appeals's ("BIA" 's) dismissal of his appeal of an immigration Judge's deportation order. Cruz Espinoza claims that the BIA erred in holding that an Immigration and Naturalization Service ("INS") form prepared by border agents who apprehended him was admissible at his deportation hearing and constituted clear and convincing evidence that he was deportable. We have jurisdiction under 8 U.S.C. § 1105a(a), and we affirm.

I

On July 10, 1992, the INS apprehended Cruz Espinoza in California and issued an Order to Show Cause alleging that Cruz Espinoza was a Mexican citizen who had entered the United States illegally in 1989. Cruz Espinoza was charged under 8 U.S.C. § 1251(a)(1)(B), which prohibits entering the country without inspection.

At deportation hearings on August 25 and September 24, 1992, Cruz Espinoza's attorney denied the charge. Id. at 104. After stating his name, Cruz Espinoza invoked the Fifth Amendment and refused to answer further questions. The only evidence offered by the INS was a copy of an INS Form I-213, Record of a Deportable Alien. The form, which border agents routinely complete after interviewing aliens,*fn1 stated that Cruz Espinoza was from Mexico and had entered the U.S. in February 1989. Attached to the Form I-213 was a signed statement by the INS district director for Los Angeles, certifying that the form was a copy of a document in Cruz Espinoza's INS file.

Cruz Espinoza's attorney objected that the form had not been properly authenticated, was hearsay, and was not reliable. He contended that Cruz Espinoza could not have provided all of the information on the form. As an example, he noted a reference to a citation of a California statute under which Cruz Espinoza had been convicted of an unrelated crime. The immigration Judge admitted the Form I-213 and denied Cruz Espinoza's request to cross-examine the form's preparer.

The Judge then ruled that Cruz Espinoza was deportable, and granted voluntary departure. Cruz Espinoza appealed to the BIA, renewing his claims that the Form I-213 was not properly authenticated and was unreliable hearsay, and asserting that he had been improperly denied a chance to cross-examine the preparer. He also claimed that the immigration Judge had abused his discretion in denying him a continuance.

The BIA dismissed the appeal. It held that the Form I-213 was properly authenticated; and that such forms are presumed inherently reliable if authenticated, and are presumed to contain information from the respondent unless the respondent presents evidence to the contrary. Furthermore, the BIA said that Cruz Espinoza's Form I-213 was highly probative, and that its admission was fair because there was no evidence that any information had been obtained through coercion. The BIA found that the errors that Cruz Espinoza claimed appeared on the form were irrelevant to the purpose for which the form was admitted, which was to demonstrate alienage.

The BIA held that the immigration Judge was not obligated to permit Cruz Espinoza to cross-examine the preparer. Because Cruz Espinoza had presented no testimony to counter the INS's charge of illegal entry, the BIA found that the INS had proved deportability by clear and convincing evidence. The BIA also rejected the claim that the Judge had improperly denied a continuance.

In this petition, Cruz Espinoza seeks review only of the dismissal of his claims concerning ...


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