898 F.2d 1053 (5th Cir. 1990), 89-4738, Bustos-Torres v. I.N.S.

Docket Nº:89-4738
Citation:898 F.2d 1053
Party Name:Pedro BUSTOS-TORRES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:April 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1053

898 F.2d 1053 (5th Cir. 1990)

Pedro BUSTOS-TORRES, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-4738

United States Court of Appeals, Fifth Circuit

April 26, 1990

Page 1054

Peter Williamson, Houston, Tex., for petitioner.

Donald A. Couvillon, Richard M. Evans, Alice M. Smith, Allen W. Hausman, Richard Thornburgh, Atty. Gen., U.S. Dept. of Justice, Robert L. Bombaugh, Washington, D.C., John B.Z. Caplinger, I.N.S., New Orleans, La., Ronald G. Parr, Houston, Tex., for respondent.

Petition for Review of an Order of the Board of Immigration & Naturalization Service.

Before WILLIAMS, HIGGINBOTHAM, and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Pedro Bustos-Torres appeals from the Board of Immigration Appeals' final order of deportation. Because the immigration judge did not err in admitting the INS Form I-213 (Record of Deportable Alien), and because Bustos did not refute any of the statements in the form which were sufficient for a prima facie showing of deportability, we affirm.

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I

On April 5, 1985, the immigration judge found Bustos deportable as charged for entering the United States without inspection in violation of 8 U.S.C. Sec. 1251(a)(2). At the deportation hearing Bustos identified himself, but refused to plead to the Order to Show Cause and refused to answer the immigration judge's questions, pleading his Fifth Amendment privilege. The INS submitted a Form I-213 Record of Deportable Alien relating to a Pedro Bustos-Torres, which stated that he is a native and citizen of Mexico who entered the United States without inspection in 1981. Attached to the form is an attestation by the INS's trial attorney that it is authentic and a true and correct copy of the original document taken from the INS's files. The record also contains a letter from the district director, pursuant to 8 C.F.R. Sec. 103.7(d)(2), authorizing any trial attorney, acting on behalf of the district director, to certify as to authenticity, originality, and custodial source of any record from any file presented as government evidence in any hearing. Bustos objected to the admission of the Form I-213, conceding that the trial attorney's authentication certified the custodial source of the document, but argued that the document was hearsay, and that the officer who made it should be present for cross-examination and to authenticate the document. The hearing was adjourned so that the officer could be produced. The officer was not available to testify at the continued hearing, as he was at the Dallas office and the hearing was in Houston. The INS produced an affidavit of the officer attesting that he filled out the form based upon an interview with the alien and this affidavit was admitted over Bustos's objections, including an objection that there was no indication that Bustos had executed a Form I-214, Warning as to Rights, or that he was told that he did not have to speak with the arresting officer. No further evidence was presented, and the judge found Bustos deportable.

Bustos appealed to the Board of Immigration Appeals, which affirmed the immigration judge's finding of deportability. Bustos appeals to this court.

II

In determining whether Bustos's deportation was proper, we must answer three questions. First, is a Form I-213 admissible evidence in a deportation proceeding without the testimony of the officer who completed the form to authenticate it and to explain the source of the information? Second, is a Form I-213 admissible in a deportation proceeding when there is no evidence that the alien was informed of any right to remain silent? Third, if the form is admissible, is it by itself sufficient to make a prima facie showing of deportability, requiring the alien to produce evidence of legal presence in this country?

  1. Admissibility Without Supporting Testimony

    Bustos alleges that the Form I-213 amounts to hearsay, and is not properly admissible without the testimony of the officer who filled out the form, so that he may be available for cross examination. First we note that the rules of evidence applicable in the courts are not applicable in deportation proceedings. Soto-Hernandez v. INS, 726 F.2d 1070 (5th Cir.1984). Nonetheless, due process standards of fundamental fairness extend to the conduct of deportation proceedings. Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). The test for admissibility of evidence in a deportation proceeding is whether the evidence is probative and whether its use is fundamentally fair so as not to deprive the alien of due process of law. See, e.g., Calderon-Ontiveros v. INS, 809 F.2d 1050 (5th Cir.1986); Baliza v. INS, 709 F.2d 1231 (9th Cir.1983); Tashnizi v. INS, 585 F.2d 781 (5th Cir.1978); Trias-Hernandez v. INS, 528 F.2d 366 (9th Cir.1975).

    In Trias-Hernandez, the Ninth Circuit considered the admissibility of a Form I-213, and determined that it was properly admitted, despite the alien's objections on the grounds that: "(1) he was not advised of his rights as required by Miranda "; "(2) the INS did not comply with its own

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    regulation, 8 C.F.R. Sec. 287.3"; "(3) it was inadmissible hearsay; and (4) no interpreter was present at the interrogation." 528 F.2d at 368. Bustos makes similar claims but none require reversal. Several courts have held that Form I-213 is admissible, despite its hearsay character. Hearsay is admissible in administrative proceedings, so long as the admission of evidence meets the tests of fundamental fairness and probity. Calderon-Ontiveros, 809 F.2d at 1053; Trias-Hernandez, 528 F.2d at 369; Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir.1974). The Form I-213 is essentially a recorded recollection of a conversation with the alien, and there is no evidence that the statements were not those of the petitioner or that they were the result of coercion.

    The affidavit of the examining officer shows that the...

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