Bustos-Torres v. I.N.S.

• Decision Date: 26 April 1990
• Docket Number: No. 89-4738,BUSTOS-TORRE,P,89-4738
• Citation: 898 F.2d 1053
• Parties: Pedroetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1053

898 F.2d 1053

Pedro BUSTOS-TORRES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-4738

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 26, 1990.

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.

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?

A. 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 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 information in the Form I-213 is based upon statements of the petitioner, and the petitioner does not contest their validity. In Tejeda-Mata v. INS, 626 F.2d 721, 724 (9th Cir.1980), the court held that the authenticity of a Form I-213 was sufficiently established by the testimony of the examining officer, who identified it as the form prepared by him when he questioned the alien. Here there was no such testimony by the examining officer, but his affidavit to that effect was introduced into evidence. ¹ Because the rules of evidence do not apply in deportation hearings, the admission of this affidavit was not error, for it is probative, and not fundamentally unfair.

Official INS documents have been admitted in deportation proceedings without being identified by the signer when the person to whom the document refers does not attempt to impeach the information in the document. Vlisidis v. Holland, 245 F.2d 812 (3d Cir.1957). Cf. Baliza v. INS, 709 F.2d 1231, 1234 (9th Cir.1983). ² Bustos does not contest that the Form I-213 reflects the officer's examination, nor did he attempt to impeach the information on the form. A similar INS apprehension report was admitted in Calderon-Ontiveros for the purpose of showing that the alien had been out of the country and then returned, and there is no indication that the officer who had completed the form testified at the later hearing. 809 F.2d at 1053. The court did not find the report inadmissible because it was hearsay, holding that "[t]he Administrative Procedure Act, which governs such hearings, excludes only 'irrelevant, immaterial, or unduly repetitious evidence.' 5 U.S.C. Sec. 556(d)." Id. The Form I-213 relating to Bustos is clearly relevant and material and is not repetitious, so it was properly admitted.

B. Admissibility With No Evidence of Warnings

Miranda warnings are not required in the deportation context, for deportation proceedings are civil, not criminal in nature, and the Sixth Amendment safeguards are not applicable. Trias-Hernandez, 528 F.2d at 368. Lavoie v. INS, 418 F.2d 732, 734 (9th Cir.1969). Because deportation hearings must conform to due process standards, however, an alien's involuntary statements cannot be used against him in a deportation hearing. See United States v. Alderete-Deras, 743 F.2d 645, 647 (9th Cir.1984); Choy v. Barber, 279 F.2d 642, 647 (9th Cir.1960). An alien's statements to immigration officers are not considered involuntary absent any showing of "coercion, duress, or improper action on the part of the immigration officer." Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir.1979). Bustos has not alleged any coercion, duress, or improper actions by the immigration officer.

The INS has instituted its own regulations imposing a duty on its officers to give certain warnings. 8 C.F.R. Sec. 287.3 provides:

An alien arrested without a warrant ... shall be examined ... by an officer.......