Barradas v. Holder, 08-3440 (7th Cir. 9/23/09)

TINDER Posner Evans

Barradas had pled guilty to attempting to smuggle in some children who weren’t his own; but the Govt failed to introduce evidence of the conviction in the Immigration Court (though it’s easily available on PACER). The only evidence they had was in the I-213 and in his own testimony. While the ground of inadmissibility (INA 212(a)(6)(E)) doesn’t actually require a conviction, ICE alleged in the NTA that he had been convicted, and Petitioner attempted to hold them to that factual question. Assuming arguendo that the NTA is formally binding, the Court considered whether the Govt had met its burden.

1. The CtApp found the I-213 etc. to be admissible to prove the existence of the conviction deferring to the regs, 8 C.F.R. § 1003.41(d), which permit "[a]ny . . . evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof."

2. It found the introduction of the I-213 not to be barred by the statutory right to cross-examine adverse witnesses – no "automatic" right to cross-examine document preparers.

In the immigration context, " ‘fundamentally fair’ should simply be read to mean ‘in accordance with the reasonable opportunity guaranteed by [8 U.S.C.] § 1229a(b)(4).’ " Doumbia, 472 F.3d at 962. Aliens in removal proceedings have the right to a reasonable opportunity to "cross-examine witnesses presented by the Government," 8 U.S.C. § 1229a(b)(4)(B), but when the evidence introduced is that "recorded by a[] [DHS] agent in a public record," the absent agent "cannot be presumed to be an unfriendly witness or other than an accurate recorder," Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1994). "Establishing an automatic right to cross-examine the preparers of such documents would place an unwarranted burden on the [DHS]." Id. Absent any indication that a Form I-213 contains information that is manifestly incorrect or was obtained by duress, the BIA has found the Form to be inherently trustworthy and admissible as evidence. In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (B.I.A. 1999). We have agreed with that position. See Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir. 2001).

* * * * We. might doubt the reliability of the notation—and require an opportunity for cross-examination—if it mischaracterized or misstated any material information about Barradas’s conviction or seemed suspicious in any other way. No such factors are present here. Nor does Barradas allege that the remainder of the Form I-213 was carelessly drafted or clouded by bias.

3. Turning to sufficiency of the evidence, the CtApp found that the evidence clearly satisfied the first prong of the definition of conviction – i.e., that he pled guilty. He testified to that. But as to the sentence, his testimony was unclear. He said he hadn’t had to pay a fine, but didn’t say precisely what he did have to do (time served, one imagines). The CtApp found - !!? – that the fact that he would have been detained at PISPC by ICE was a sufficient restraint on his liberty as to qualify under the second prong of the conviction definition. In a FN, they point out that remand would be pretty pointless, since it’s easily established via PACER that he received some sentence.

[CR: of course it makes no sense to say that he was sentenced to civil immigration detention as a result of his conviction. If immigration detention *were* a punishment resulting from a conviction, there would be all sorts of issues – ex post facto, double jeopardy, etc. Rehearing would be a pointless exercise, in a way, but this is an egregious misstatement. One wonders if the Govt argued it in their briefs. Oh, btw – why couldn’t the Court of Appeals have taken judicial notice of the conviction documents?]

4. Petitioner argued that threatening to make an "adverse inference" against the Petitioner if he didn’t testify was an improper burden shifting activity, and thus violated his rights under Due Process. The CtApp assumed that burden-shifting argument, and found that sufficient evidence supported the finding that the Govt had met its prima facie burden before his testimony.

5. Finally, Petitioner argued that the IJ had become an interrogator – the CtApp found that his questions hadn’t been irrelevant or abusive. Also, it saw an inconsistency in arguing that the IJ should have forced DHS to produce the conviction documents with the argument that the IJ was acting like a prosecutor. But if the IJ had told DHS what it needed to produce, that would have been more like co-counsel than in ruling on the evidence presented to the Court.

[CR: my goodness, what a big deal Judge Tinder made of this case! It certainly would have been easier to take judicial notice of the conviction – or to remand – rather than undertake such a convoluted analysis.]

Read decision here: 

Nzeve v. Holder, 08-3455 (7th Cir 9/17/09)

BAUER Tinder Sykes

The applicant was an asylum-seeker from Zimbabwe, whose asylum claim was denied because his past mistreatment was held not to rise to the level of past persecution.

1. The BIA erred in applying 8th cir law to the case. Under VTC, the law of the place where the IJ sits is binding.

2. The CtApp found that a single incident of beating with batons, etc., did not compel a finding of past persecution. Moreover, the threat against him wasn’t particularly serious, and thus didn’t add much to the totality of the case.

3. The record didn’t compel the conclusion that his fear of future persecution was objectively reasonable, where he couldn’t amass objective facts supporting his fears. The mistreatment of asylum-seekers returned from the UK – who are interrogated at the airport – did not suffice. Being harassed isn’t persecuted.

Read decision here: 

Patel v. Mukasey, 08-3067 (7th Cir. 9/16/09)

WOOD Rovner Kanne

The Petitioner was an asylum-seeker from India. First, the Court rejected his argument that the IJ should have continued the case. Even if the Kucana decision results in a finding that the CtApp has abuse-of-discretion review over continuance denials, there was no abuse here – he knew about the hearing for months. The asylum argument was waived by his failure to argue for an exception to the one-year filing rule below, and there is no jurisdiction anyway. Khan v. Filip, 554 F.3d 681, 687 (7th Cir. 2009). His withholding theory was doomed by his admission that he was attacked for business reasons, not for politics. Finally, he sought reopening on grounds of IAC, under Lozada; but didn’t separately petition for review from the denial of reopening. Thus, the CtApp lacks jurisdiction to address the argument.

Read opinion here: 

Dakaj v. Holder (7th Cir., August 31, 2009)

Bauer, Ripple, Tinder

Read the opinion here.