Antia-Perea v. Holder
| Decision Date | 25 September 2014 |
| Docket Number | Nos. 12–3641,13–1895,13–2737.,13–1228,s. 12–3641 |
| Citation | 768 F.3d 647 |
| Parties | Raul ANTIA–PEREA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Royal F. Berg, Law Office of Royal F. Berg, Chicago, IL, for Petitioner.
Jacob A. Bashyrov, Attorney, OIL, Attorney, Enitan Otunla, Attorney, Department of Justice, Washington, DC, for Respondent.
Before KANNE and ROVNER, Circuit Judges, and DOW, District Judge. *
According to the Form I–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 I–213 but did not otherwise challenge the contents of the I–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 I–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 I–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 erroneous,we deny the consolidated petition for review.
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 I–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, 726 F.3d 1007, 1013 (7th Cir.2013). The I–213 stated that Antia–Perea came into DHS custody on August 20, 2010, and at that time “voluntarily admitted” to DHS agent Yesenia Ochoa that he was not a citizen or national of the United States. According to the I–213, Antia–Perea was “a native and citizen of Colombia” and “ma[d]e [ ] no claim to United States citizenship.” The documents tendered to Antia–Perea also included a Chicago Police Department “rap sheet,” and a “newer iClear Rap Sheet.” Both rap sheets indicated that Antia–Perea was born in Puerto Rico.
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 removability on the documentary evidence it had submitted: the I–213, the rap sheets, and a few other documents pertaining to Antia–Perea's convictions. The Government argued that the I–213 “establishes that he did advise an Immigration Officer that he's a native and citizen of Colombia.” The Government did not call to the IJ's attention the discrepancy between the I–213, which reported Colombia as Antia–Perea's birthplace, and the rap sheets, which identified Puerto Rico as Antia–Perea's birthplace. Neither did Antia–Perea or his counsel.
Instead, Antia–Perea's counsel advised the IJ that Antia–Perea refused to testify as to the authenticity or the accuracy of the I–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, 610 F.3d 483 (7th Cir.2010), and 8 U.S.C. § 1229a(b)(4)(B). The IJ further rejected Antia–Perea's challenge to the Government's failure to produce any witnesses aside from Antia–Perea himself. The IJ explained that the Government The IJ gave Antia–Perea an opportunity to “challeng[e] the documentary evidence, through testimony or affidavits or something else” on rebuttal, but Antia–Perea declined. He expressly stated that he objected to the use of the I–213 solely on the ground that “we're not being permitted to cross-examine the maker of this document.”
Ultimately, the IJ concluded that the I–213 was a reliable document that “clearly establishe[d] 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)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). 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–Perea could establish a prima facie case for relief without testifying. The IJ disagreed. The IJ addressed Antia–Perea directly and told him that his application for cancellation of removal was inadequate in its present state. The IJ also advised Antia–Perea that he as the applicant for cancellation of removal bore the burden of showing an entitlement to relief. The IJ gave Antia–Perea a one-week continuance to discuss the matter with counsel. ...
To continue reading
Request your trial