Luis Aparicio-Brito v. Loretta E. Lynch
824 F.3d 674
| 7th Cir. | 2016Background
- Luis Aparicio-Brito, a Mexican national, entered the U.S. without inspection around 1998 and was later arrested for a fourth DUI in 2010, triggering DHS removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i).
- DHS prepared a Form I-213 reporting that Aparicio-Brito admitted Mexican citizenship and entry without inspection; Aparicio-Brito neither admitted nor denied the NTA and sought cancellation of removal and voluntary departure.
- Aparicio-Brito filed motions to suppress the I-213 and to subpoena interviewing officers; the IJ denied those motions, admitted the I-213, found alienage established, and sustained removability.
- At the merits hearing Aparicio-Brito testified about family hardship, continuous presence, and his DUI convictions; the IJ denied cancellation of removal for failure to prove continuous 10-year physical presence, exceptional hardship, and good moral character.
- The IJ also denied voluntary departure based on lack of good moral character; the BIA affirmed and denied motions to reconsider and to reopen; Aparicio-Brito petitioned for review.
- The Seventh Circuit denied the petition, holding the IJ and BIA acted properly: the I-213 was admissible and sufficient to prove alienage, no due-process violations warranted reversal, and Aparicio-Brito failed to prove continuous presence required for cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/use of Form I-213 to prove alienage | I-213 is unreliable and lacked proper warning; statements were coerced or made without timely advisal | I-213 is presumptively reliable; no evidence of coercion and warning requirement not triggered before NTA | I-213 admissible and sufficient to establish alienage; no basis to suppress |
| Right to cross-examine DHS officer (subpoenas) | Denial of subpoenas and suppression violated cross-examination rights | Absent officer is treated as reliable recorder; cross-exam not required absent evidence of fabrication | Motion to subpoena/suppress properly denied; cross-exam not required here |
| Due process re: IJ questioning and procedure | IJ questioned petitioner adversarially; failed to advise/allow asylum/withholding | IJ may interrogate; procedural requirements met; asylum/withholding claims not exhausted | No due-process violation; IJ’s questioning permissible; asylum/withholding claims unexhausted so not reviewed |
| Eligibility for cancellation of removal (continuous presence, hardship, moral character) | Aparicio-Brito met 10-year continuous presence and showed hardship; AA/church attendance, family ties favor relief | He took multi-month trips to Mexico likely exceeding allowable absences and has four DUI convictions undermining moral character and hardship showing | Denial upheld: petitioner failed to prove continuous 10-year physical presence; court need not reach other discretionary factors |
Key Cases Cited
- Lopez-Esparza v. Holder, 770 F.3d 606 (7th Cir.) (discusses evidentiary burdens for cancellation of removal)
- Delgado v. Holder, 674 F.3d 759 (7th Cir.) (limits of due process protections for discretionary relief in removal proceedings)
- Antia-Perea v. Holder, 768 F.3d 647 (7th Cir.) (treats Form I-213 as presumptively reliable absent signs of fabrication)
- Barradas v. Holder, 582 F.3d 754 (7th Cir.) (Form I-213 may be admissible without officer testimony because agent is presumed accurate)
- Lopez-Mendoza v. INS, 468 U.S. 1032 (U.S. Supreme Court) (governmental burden to prove removability by clear and convincing evidence)
- Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir.) (continuous physical presence is a non-discretionary statutory question)