54 F.3d 605 (9th Cir. 1995), 93-71029, Murphy v. I.N.S.

Docket Nº:93-71029.
Citation:54 F.3d 605
Party Name:Travis MURPHY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:May 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 605

54 F.3d 605 (9th Cir. 1995)

Travis MURPHY, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 93-71029.

United States Court of Appeals, Ninth Circuit

May 19, 1995

        Argued and Submitted Feb. 8, 1995.

Page 606

        John H. Sharer, Donald J. Schmid, Gibson, Dunn & Crutcher, Los Angeles, CA, and Edward L. Xanders, Gibson, Dunn & Crutcher, Irvine, CA, for petitioner.

        Norah Ascoli Schwarz, I.N.S., Civil Division, U.S. Dept. of Justice, Washington, DC, for respondent.

        Petition for Review of a Decision of the Immigration and Naturalization Service.

        Before: BROWNING, D.W. NELSON, and HAWKINS, Circuit Judges.

        D.W. NELSON, Circuit Judge:

        Travis Murphy petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the determination of the immigration judge ("IJ") that Murphy is deportable to Jamaica, pursuant to 8 U.S.C. Secs. 1251(a)(1)(B), 1251(a)(2)(A)(iii), and 1251(a)(2)(B)(i), as an alien convicted of cocaine trafficking after entering the country without inspection. Murphy contends that the BIA decision is not based on substantial evidence because the government did not meet its burden of proof to provide clear, convincing, and unequivocal evidence of alienage, and that the deportation proceedings denied him due process because of the admission of an unauthenticated I-213 and an unauthenticated statement of an agent who was not present for cross-examination. In the alternative, Murphy asks that his case be transferred to the United States district court for de novo determination of his claim to citizenship, pursuant to 8 U.S.C. Sec. 1105a(a)(5)(B). We have jurisdiction under 8 U.S.C. Sec. 1105a(a). We grant the petition for review and vacate the BIA decision.

Page 607

FACTUAL AND PROCEDURAL BACKGROUND

        After Murphy's conviction for sale or transportation of a controlled substance, the INS issued an Order to Show Cause on February 26, 1993. Murphy, who is homeless, uneducated, and illiterate, appeared pro se at the initial hearing on March 23, 1993, at which he denied all of the allegations other than the drug trafficking conviction and claimed that he was born in the Virgin Islands of the United States. After further questioning, the IJ told Murphy that he needed to obtain proof of his citizenship by birth certificate or parents' or friends' testimony, and continued the deportation hearing until April 15, 1993 to allow Murphy to secure pro bono counsel.

        At the deportation hearing, the INS presented various documents in an attempt to establish alienage: (1) the Order to Show Cause, listing respondent's surname in one place as Murphy and in another as Minguez-Contreras, without explanation; (2) an unauthenticated I-213 form signed by INS agent John Wills; (3) two certifications from the Virgin Islands, stating that there was no birth certificate for Travis Murphy on either December 15, 1956 or February 12, 1959 in the records for Saint Thomas or Saint John islands (but not including information regarding the records of Saint Croix); (4) an unauthenticated, undated, unnotarized, and unverified statement from John Wills prepared in support of the deportation proceeding, reporting earlier sworn statements by Murphy that he is from St. Thomas, Virgin Islands and inconsistent, purported admissions that he is from St. Thomas, Jamaica; and (5) a map of Jamaica establishing that there is a St. Thomas parish in Jamaica. Although the INS disclosed none of the exhibits before the hearing, other than the fact that the Virgin Islands had not found a birth certificate for the two dates searched, the unauthenticated exhibits were admitted without objection. Neither Wills nor any other INS witness testified at the hearing, but the IJ found the I-213 form and Wills' unauthenticated statement to be sufficient as prima facie evidence of alienage.

        Although the transcript has numerous gaps for which Murphy's responses are listed as "indiscernible," Murphy testified that he was born by home delivery in the Virgin Islands and that he left when he was five to come to New York. He stated that he did not remember the names of the people who cared for him between the ages of six and twelve. At one point he indicated that he thought that their name was Williams, but he was unsure; later, he declined to insist on any name because he could not remember. When he was nine or ten, these people informed him of his birth and told him that his father and mother had died, his mother having succumbed to illness when Murphy was six, resulting from a home delivery. Murphy stated that he travelled to Los Angeles with a friend when he was twelve and then lived on the streets and in an open lot. Murphy indicated that an INS "snitch" had told the INS that he was from Jamaica, but that he himself had never claimed to be from Jamaica and did not associate with Jamaicans.

        The IJ found that the INS had produced sufficient evidence to establish a prima facie case creating a presumption of alienage, based on the I-213 form, the affidavit, and the lack of a Virgin Islands birth certificate for the dates searched; consequently, the IJ shifted the burden to Murphy to prove citizenship. The IJ found that Murphy's testimony rebutted the INS evidence so that the burden shifted back to the INS to establish alienage by clear, convincing, and unequivocal evidence. Although the INS offered no further evidence, the IJ found that the government met its burden of proving alienage because Murphy's story was implausible given his "specific statement" (reported in Wills' statement) that he came from St. Thomas, Jamaica. Having found alienage, the IJ then noted that Murphy had failed to demonstrate legal entry to combat the statutory presumption that he was present in the United States in violation of the law, pursuant to 8 U.S.C. Sec. 1361, which shifts the burden of proof to the alien to show time, manner, and place of legal entry. The IJ therefore ordered Murphy deported.

        The BIA conducted a de novo review. It found that the INS had established a prima

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facie case of alienage with the certification of lack of birth certificates from the Virgin Islands for the dates and places shown, the I-213 form, and Wills' statement. Although the BIA acknowledged that the I-213 merited little weight because Murphy had contested critical statements and had testified that an informant--not Murphy--had told Wills that Murphy was Jamaican, it considered the lack of a birth certificate probative. The BIA also ruled that Wills' statement was entitled to "full evidentiary weight."

        The BIA then found that Murphy's testimony lacked credibility because it was uncorroborated. The BIA noted that Murphy offered no evidence of the frequency of unregistered home births in the Virgin Islands, could provide no specifics about the family friends that took him in when he was a small child, presented no death certificates for his parents, offered no testimony from the sole relative mentioned (an uncle), and offered no official papers confirming his adoption at the age of five. Thus, the BIA found that Murphy had failed to satisfy his burden of rebutting the INS' prima facie evidence of alienage by "corroborat[ing] his claim to citizenship" with a "preponderance of credible evidence."

        Murphy asks this panel to grant his petition for review and vacate the order of deportation.

        STANDARD OF REVIEW

        We review to determine whether the deportation order is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. Sec. 1105a(a)(4); Trias-Hernandez v. INS, 528 F.2d 366, 370 (9th Cir.1975). In a deportation proceeding, the government must prove alienage by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 281, 284-85, 87 S.Ct. 483, 485, 487-88, 17 L.Ed.2d 362 (1966); Ramon-Sepulveda v. INS, 743 F.2d 1307, 1308 n. 2 (9th Cir.1984) (holding that the government must prove alienage by "clear, convincing, and unequivocal evidence of foreign birth" before the burden shifts to the respondent to rebut by demonstrating legal entry).

        DISCUSSION

        Murphy's claim that the BIA's findings were not supported by reasonable, substantial, and probative evidence, see Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966), rests on two grounds: (1) the BIA inappropriately shifted the burden of persuasion to the respondent to prove citizenship by requiring Murphy to rebut the BIA's prima facie evidence of alienage by a preponderance of the evidence; and...

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