108 F.4th 114
2d Cir.2024Background
- Maximo Robert Vera Punin, a citizen of Ecuador, was ordered removed from the United States after his conviction in state court for multiple counts of sexual abuse of a minor.
- Vera Punin is serving a 25-year prison sentence and will face deportation after completing his jail term.
- During removal proceedings, the Department of Homeland Security (DHS) relied on Form I-213 to argue that Vera Punin was an alien.
- Vera Punin objected to the use and sufficiency of the I-213 as evidence of his alienage, challenged the burden of proof, and questioned the authority of the deciding Board member.
- Both the Immigration Judge and Board of Immigration Appeals found the I-213 admissible and sufficient, and the Second Circuit was asked to review those determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the agency fail to adequately explain its alienage finding? | IJ did not explain why I-213 met the required standard; BIA did not cure this. | Argument was not raised before BIA; thus, not preserved for review. | Dismissed for failure to exhaust administrative remedies. |
| Was I-213 properly admitted and sufficient to prove alienage? | I-213 is either hearsay or based on unreliable/third-party sources, not enough by law. | I-213 is presumptively reliable unless rebutted by evidence of inaccuracy or coercion. | Agency properly admitted and relied on I-213; sufficient to prove alienage. |
| Did treating the I-213 as presumptively reliable shift burden of proof? | Presumption improperly shifts burden from government to respondent. | Presumption is only about the burden of production, not proof; burden stays on DHS. | Presumption does not impermissibly shift the burden of proof away from the government. |
| Was the temporary Appellate Immigration Judge properly appointed? | Appointment violated regulations limiting term and process for temporary judges. | Appointment was lawful under Attorney General’s statutory authority, not regulation. | Temporary judge was validly appointed by the Attorney General under 8 U.S.C. § 1103(g)(1). |
Key Cases Cited
- Woodby v. INS, 385 U.S. 276 (1966) (clear, unequivocal, and convincing evidence required for deportation)
- Felzcerek v. INS, 75 F.3d 112 (2d Cir. 1996) (Form I-213 is presumptively reliable in immigration proceedings)
- Colorado v. New Mexico, 467 U.S. 310 (1984) (description of the clear and convincing evidence standard)
- Com. Molasses Corp. v. N.Y. Tank Barge Corp., 314 U.S. 104 (1941) (distinction between burden of proof and production)
- Dir., Off. of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994) (definition of burden of proof and production)