According to the Form 1-213 that the Department of Homeland Security (“DHS” or “the Government”) presented at his removal hearing, Petitioner Raul Antia-Perea is a native and citizen of Colombia who was not properly admitted to the United States. Antia-Perea sought to subpoena the DHS agent who prepared the 1-213 but did not otherwise challenge the contents of the 1-213 or present any evidence in his own behalf at the removal stage of the proceedings. An immigration judge (“IJ”) denied Antia-Perea’s subpoena request, and, relying on the 1-213, found him removable to Colombia. The IJ also denied Antia-Perea’s request for a six-month continuance to seek a gubernatorial pardon and found him ineligible for cancellation of removal. The Board of Immigration Appeals (“BIA” or “Board”) affirmed the IJ’s decision and later denied Antia-Perea’s motion for reconsideration. The BIA subsequently denied Antia-Perea’s motion to reopen, as well as his request for reconsideration of that ruling.
Antia-Perea now seeks relief from all four of the BIA’s decisions in this consolidated petition for review. Antia-Perea contends that the IJ wrongfully denied his requests to subpoena and cross-examine the DHS agent who prepared the 1-213, improperly concluded that the Government could and did satisfy its burden of proving alienage with documentary evidence alone, and erroneously denied his request for a continuance to seek a pardon. Antia-Perea further submits that the IJ was biased against him and that the BIA erred in denying his motion to reopen and in denying his motion to reconsider that ruling. Because we conclude that none of the challenged rulings by the IJ or BIA was erro
I.
A. Removal Proceedings. DHS initiated removal proceedings against Antia-Perea on August 20, 2010 by serving him with a Notice to Appear (“NTA”). The NTA alleged that Antia-Perea was a citizen and native of Colombia who had entered the United States at an unknown place and time without being admitted or paroled by an immigration officer. It charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. The NTA further alleged that Antia-Perea had been convicted of “indecent liberties with a child,” a crime of moral turpitude, and charged him with removability on that basis as well. See 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Antia-Perea appeared pro se before an IJ twice before he retained counsel. The only substantive occurrence at those hearings was that the Government filed and tendered to Antia-Perea “several documents in this case pertaining to allegations in the Notice to Appear.” Those documents included a copy of a Form 1-213, a “Record of Deportable/Inadmissible Alien” prepared by DHS “that is typically a record of an immigration inspector’s conversation with an alien who will probably be subject to removal.”
Pouhova v. Holder,
Antia-Perea eventually retained counsel, who sought and received two continuances to review the documents, make Freedom of Information Act requests, and generally get up to speed with the case. The matter was reassigned to a different IJ, and Antia-Perea and counsel appeared before the new IJ on May 24, 2011. On the advice of counsel, Antia-Perea declined to admit or deny the NTA’s allegations against him. Antia-Perea further declined to designate Colombia as the country of removal. He requested that the Government be put to its burden of proving his alienage and removability. Antia-Perea also asked that “the Government be put to its burden of proving removability before we get to the relief stage.” The IJ granted these requests and scheduled the matter for a contested hearing on the issue of removability. However, the IJ denied Antia-Perea’s request “for subpoenas for the makers of any and all Government documents that are coming in.” The IJ advised Antia-Perea that this request was “too broad” and told him that he would “have to identify what it is that you’re seeking and specify the nature of the request.” The IJ directed the Government to serve counsel with the documents it planned to use no later than 15 days before the contested hearing, which was set for June 28, 2011. The IJ also directed the Government to have all of its witnesses available for the hearing so that the case could proceed in an orderly fashion.
At the contested hearing, the Government called Antia-Perea as its sole witness. Antia-Perea refused to answer any of the Government’s questions. In light of Antia-Perea’s silence, the Government requested that the IJ make a finding of
Instead, Antia-Perea’s counsel advised the IJ that Antia-Perea refused to testify as to the authenticity or the accuracy of the 1-213 and reiterated his request to subpoena the preparer of that and the Government’s other documents. The IJ again denied the request as overly broad. The IJ also denied Antia-Perea’s request to cross-examine the preparer of the I-213, rejecting Antia-Perea’s contention that he had a right to do so under
Malave v. Holder,
Ultimately, the IJ concluded that the I-213 was a reliable document that “clearly established] the respondent’s alienage” and that Antia-Perea failed to show that “the time, manner, and place of his entry” were such that his presence in the United States was authorized. The IJ therefore found that Antia-Perea was removable under § 212(a)(6)(A)® of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)®. At the same time, the IJ concluded that the Government’s evidence was insufficient to establish removability on the NTA’s second charge. The IJ did not address the fact that the rap sheets listed Puerto Rico as Antia-Perea’s birthplace. Neither did counsel for either side.
Antia-Perea’s counsel did request a continuance to file various requests for relief from removability and an application for cancellation of removal. The IJ granted this request over the Government’s objection to allow Antia-Perea to “file any applications that you want me to consider in your case.” The IJ set the matter for a hearing on September 13, 2011.
At the September 13 hearing, Antia-Perea submitted an application for cancellation of removal, on which he left unanswered the questions about his birthplace, nationality, current citizenship, and his entry into the United States. Counsel indicated that Antia-Perea “would refer to the record that was submitted previously by the Government.” Counsel also informed the IJ that Antia-Perea’s son, then a student at John Marshall Law School, was preparing documentation “seeking a pardon of the things that would bar, perhaps statutorily, Mr. Antia from receiving cancellation.” Counsel asked the IJ for a six-month continuance “for us to try to obtain a pardon from the governor, expressing to the governor the need for urgency here.”
Antia-Perea “respectfully refus[ed]” to answer the IJ’s questions about his application for cancellation of removal. Counsel told the IJ that he believed that Antia-
At the continued hearing a week later, counsel presented the IJ with several documents in support of Antia-Perea’s application for cancellation of removal, including his wife’s naturalization papers, tourist cards issued by the Colombian consulate listing Puerto Rico as Antia-Perea’s place of birth, and birth certificates of Antia-Perea’s adult children that said the same. Antia-Perea did not testify, nor did he seek any other type of relief, such as voluntary departure.
The IJ issued a written decision on September 26, 2011. The IJ found that the Government had carried its burden of proving Antia-Perea removable by clear and convincing evidence by way of the I-213. The IJ cited Seventh Circuit case law for the proposition that the 1-213 is “presumptively reliable” such that it is admissible as evidence of the truth of its contents barring any countervailing evidence of inaccuracy or duress. The IJ also explained that he denied Antia-Perea’s subpoena request for lack of good cause “because he did not present any evidence undermining the accuracy of the document or the methods by which it was obtained.” The IJ rejected Antia-Perea’s reliance on Malave and concluded that without some evidence impugning the 1-213, “it is not apparent what information the respondent would elicit through cross-examination of its author.” He ruled that “[t]he regulations governing subpoenas require at least that much,” and cited in support 8 C.F.R. § 1003.35(b)(2), which by its terms requires a party applying for a subpoena “to state in writing or at the proceeding, what he or she expects to prove by such witnesses or documentary evidence, and to show affirmatively that he or she has made diligent effort, without success, to produce the same.”
The IJ also formally denied Antia-Perea’s request for cancellation of removal. The IJ found that, in light of the rap sheets, which Antia-Perea conceded were applicable to him, “there is at least a ‘reasonable indication]’ that the respondent is barred from cancellation of removal by section 240A(b)(l)(C),” 8 U.S.C. § 1229b(b)(l)(C). The IJ further noted that Antia-Perea had sought a continuance to seek a pardon but that he had denied the request because he did not want to “delay proceedings and finds the respondent’s request too speculative.”
B. Appeal to the BIA. Antia-Perea timely appealed the IJ’s decision to the BIA. He contended that the IJ erred in (1) admitting the Form 1-213 into evidence; (2) denying his request to cross-examine the maker of the Form 1-213; (3) ruling that the Government had established alien-age; (4) ordering him deported; and (5) denying his request for a continuance to seek a gubernatorial pardon. Antia-Perea also asserted that the IJ was biased in
The BIA dismissed the appeal after reviewing the IJ’s findings of fact for clear error and all other issues de novo. Especially pertinent here, the BIA agreed with the IJ that DHS met its burden of establishing alienage and removability based on the Form 1-213. The BIA found that “[t]here is nothing facially suspect about the Form 1-213,” and that absent some evidence or even allegations that an 1-213 is inaccurate, it may be considered inherently reliable and can be sufficient to establish alienage. Notwithstanding Antia-Perea’s failure to raise the issue before the IJ, the BIA acknowledged that the rap sheets in the record indicated that Antia-Perea was born in Puerto Rico. It accorded these documents little weight, however, reasoning that “[ijnformation such as place of birth for such documents is typically provided by the individual to whom they pertain, rather than an independent or verified source.” The BIA also agreed with the IJ that “[wjhether and when the respondent may be granted pardon is too speculative to provide good cause for a continuance.” Additionally, the BIA found that Antia-Perea “has not shown he was prejudiced by the denial of a continuance” to seek a pardon, because “[t]he finding of removability was not based on his convictions, and the lack of a disqualifying conviction is only one of several statutory factors for cancellation of removal that the respondent did not demonstrate.” The BIA rejected Antia-Perea’s assertions of bias out of hand for failure to cite specific examples of impropriety.
C. First Motion for Reconsideration.
Antia-Perea timely petitioned this Court for review of the BIA’s decision (No. 12-3641). While his petition was pending, he filed a motion asking the BIA to reconsider its decision. He essentially reiterated the contentions that he made on initial review and asserted that the BIA erred in rejecting his requests for relief.
The BIA denied Antia-Perea’s motion to reconsider without engaging in new analysis. Antia-Perea timely filed a petition for review of this decision (No. 13-1228).
D. Motion to Reopen. In January 2013, Antia-Perea filed a motion requesting that the BIA reopen his proceedings pursuant to 8 C.F.R. § 1003.2(c)(1) and remand them to a different IJ. His motion presented virtually all of the arguments that the BIA previously rejected. In the final paragraphs of his motion, he raised for the first time an alleged fear of deportation to Colombia and sought a hearing “on his request for political asylum, withholding of removal, and/or protection under the United Nations Convention Against Torture.” In support of this request for relief, he cited a 60 Minutes report on the “Super Cartel” in Colombia and submitted affidavit testimony that he feared “for [his] life if [he is] deported to Colombia because the Super Cartel may want to retaliate against [him] if they were-to find out [his] daughter is an [Immigration and Customs Enforcement] ICE agent.” Antia-Perea later supplemented this motion with a transcript of the segment on the Super Cartel.
The BIA denied Antia-Perea’s motion to reopen on April 12, 2013. It noted that “[m]ost of the issues raised in the respondent’s motion to reopen were adequately addressed in our October 22, 2012, decision or were addressed in our January 18, 2013, decision.” Accordingly, the BIA substantively addressed only Antia-Perea’s requests for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). It did so briefly, concluding that Antia-Perea failed to “show prima facie eligibility for asylum and withholding of removal” because he failed to
E. Second Motion for Reconsideration. On May 9, 2013, Antia-Perea filed with the BIA a motion to reconsider its denial of his motion requesting relief from removal. He argued that “the evidence he provided the BIA was sufficient to demonstrate that his fear of persecution is both subjectively genuine and grounded in an objectively reasonable basis.” He also claimed that the BIA’s failure to grant him a hearing infringed his due process rights and “that to remove him to Colombia would be violative of the International obligations of the United States.” Antia-Perea added for the BIA’s consideration two news articles about ICE agents and informants getting killed by Mexican drug cartels in East El Paso, Texas.
The BIA denied Antia-Perea’s motion, which it treated as a motion to reopen in light of the newly appended articles. It concluded that there was “little commonality” between Antia-Perea’s fear and the fear expressed by one of the subjects in the 60 Minutes segment. The BIA considered Antia-Perea’s two news articles and concluded that he was “not similarly situated to ICE agents, Texas Rangers, or informants for ICE.” Antia-Perea filed a fourth petition seeking review of this decision (No. 13-2737).
II.
There is no dispute that all four of Antia-Perea’s petitions for review concern final decisions, were timely submitted, and are properly before this Court.
See El-Gazawy v. Holder,
A.
Antia-Perea first contends that the IJ and BIA violated his due process rights by denying him an opportunity to cross-examine the DHS agent who drafted the 1-213.
Aliens in removal proceedings are entitled to due process of law under the Fifth Amendment.
Reno v. Flores,
Section 1229a(b)(4)(B) provides that an alien in removal proceedings “shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” An alien who challenges a removal order by claiming a violation of these rights must show both that the proceeding did not meet these requirements and that he was prejudiced as a result.
Apouviepseakoda v. Gonzales,
As Antia-Perea concedes, it is well established that the 1-213 is a presumptively reliable and admissible document. Indeed, “[a]s a general rule, a Form 1-213 is treated as inherently trustworthy and admissible
even without the testimony of the officer who prepared it.
”
Pouhova v. Holder,
Antia-Perea did not introduce any evidence or make any argument challenging the contents, creation, or reliability of the 1-213 at the removal stage of his proceedings. He nonetheless contends that his case is closely analogous to
Pouhova v. Holder,
This case is distinguishable from
Pouhova
in two significant respects. First, there is no indication that the 1-213 was prepared years after the fact like the one in
Pouhova.
To the contrary, it was prepared on the same day that Agent Ochoa interviewed Antia-Perea. Second,
Antia-Perea also relies heavily on
Malave v. Holder,
B.
Antia-Perea next argues that the rap sheets and the documents that he submitted at the relief stage of his proceedings — the incomplete application for cancellation of removal, the travel card, his wife’s naturalization papers, and his children’s birth certificates — undermined the inherent reliability of the 1-213 and rendered it insufficient to establish that he was an alien. The IJ considered only the 1-213 and found it sufficient to establish Antia-Perea’s alienage. In reviewing the IJ’s decision, the BIA also took into account the rap sheets and documents that Antia-Perea submitted in support of his application for cancellation of removal. The BIA nonetheless concluded that “the totality of the evidence” was sufficient to establish Antia-Perea’s alienage. Antia-Perea contends that the IJ and BIA erred as a matter of law.
“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board.”
Cece v. Holder,
We cannot conclude that the IJ or BIA erred under any standard. “In the case of a respondent charged as being in the United States without being admitted or paroled, the [Government] must first establish the alienage of the respondent.” 8 C.F.R. § 1240.8(c);
see also Mozdzen v. Holder,
The BIA’s supplemental (and apparently
sua sponte,
as Antia-Perea did not argue that the rap sheets or his documents undermined the 1-213) consideration of the rap sheets and the submissions that Antia-Perea made at the relief stage led it to the same conclusion that the IJ reached. The BIA weighed Antia-Perea’s silence and selectively incomplete application for cancellation of removal against the documents indicating that he was a citizen of Puerto Rico and found the former more persuasive than the latter. We find no error in this assessment. Immigration courts are permitted to draw adverse inferences from a person’s refusal to answer questions about his origin during a hearing,
Gutierrez-Berdin,
C.
Antia-Perea next contends that the IJ violated his due process rights by denying his request for continuance to allow him to seek a gubernatorial pardon. He asserts that the Board erred when it agreed that pursuit of a pardon was too speculative to provide good cause for a continuance, because 8 U.S.C. § 1227(a)(2)(A)(vi) expressly provides that an alien may not be adjudicated removable on the basis of a criminal conviction if he receives a full and unconditional pardon for the offense. Not only do these contentions miss the mark because Antia-Perea was not found removable based on his convictions, they do not establish a due process violation.
To establish a due process violation, Antia-Perea must demonstrate that he had a protected liberty or property interest in seeking the continuance.
Adame v. Holder,
D.
Antia-Perea next contends that the BIA erred in denying his motion to reopen because it “lump[ed] together in one broad brush each of Petitioner’s claims for asylum, withholding of removal, and protection under CAT” rather giving each its due consideration. We will uphold the BIA’s denial of a motion to reopen “unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.”
Munoz-Avila v. Holder,
Generally, the Board may deny an applicant’s motion to reopen if the applicant fails to establish a prima facie case of eligibility for the underlying relief sought.
Kay v. Ashcroft,
The Board’s analysis in this regard was less than stellar. Although it demonstrated that it had considered Antia-Perea’s evidentiary submissions, the Board neglected to set forth the standards against which those submissions were measured for each form of relief. Nonetheless, it is clear from the Board’s discussion that it denied Antia-Perea’s requests for asylum and withholding of removal because it concluded that the harm Antia-Perea feared was too speculative to merit relief. This is a valid and rational basis on which to deny both types of claim. Asylum applicants who have not been persecuted in the past may demonstrate eligibility for relief only by showing a fear of future persecution “that is subjectively genuine and objectively reasonable.”
Georgieva v. Holder,
As we have recognized in
Hassan
and elsewhere, the burden of proof for CAT protection is more stringent still than that for asylum or withholding of removal, as the applicant must show that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2);
Hassan,
E.
Antia-Perea finally contends that his due process rights were violated because the IJ was not fair and impartial. The BIA rejected this argument during Antia-Perea’s first appeal because he failed to offer any evidence of bias aside from the adverse rulings against him, and declined to revisit its decision on reconsideration. We find no error in these rulings.
The Fifth Amendment’s due process clause guarantees the right to an impartial decisionmaker,
Firishchak v. Holder,
III.
For all of the reasons stated above, Antia-Perea has not demonstrated that the IJ or the Board legally erred or denied him due process. Accordingly, his consolidated petition for review is DENIED.