Rosendo-Ramirez v. I.N.S.

• Decision Date: 10 August 1994
• Docket Number: ROSENDO-RAMIRE,P,No. 93-2921,93-2921
• Citation: 32 F.3d 1085
• Parties: Martinetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1085

32 F.3d 1085

Martin ROSENDO-RAMIREZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-2921.

United States Court of Appeals Seventh Circuit.

Argued April 20, 1994.

Decided Aug. 10, 1994.

James Hallagan (argued), Minsky, McCormick & Hallagan, Chicago, IL, for petitioner.

Michael J. Shepard, Asst. U.S. Atty., Crim. Div., Chicago, IL, David V. Bernal (argued), Dept. of Justice, Office of Immigration Litigation, Janet Reno, U.S. Atty. Gen., Washington, DC, Samuel Der-Yeghiayan, Chicago, IL, William J. Howard, David J. Kline, Dept. of Justice, Office of Immigration Litigation, Washington, DC, for respondent.

Before BAUER and CUDAHY, Circuit Judges, and GRANT, District Judge. ^*

CUDAHY, Circuit Judge.

Chicago resident Martin Rosendo-Ramirez, a legal permanent resident of the United States since 1983, was apprehended on April 12, 1989 at the airport in El Paso, Texas, about ten miles inside the United States border. Rosendo and his wife and sister-in-law, both undocumented aliens, had just boarded a private plane scheduled to fly to New Mexico. Acting on an anonymous tip that the plane would be ferrying undocumented aliens, Border Patrol Agent Benjamin Robinson halted the plane and detained the passengers and pilot (a U.S. citizen) for questioning. Robinson concluded that the passengers were undocumented aliens, and arrested all three and took them to the Border Patrol office for further questioning. Computer files then revealed that Rosendo was a permanent resident. Based upon Agent Robinson's conclusion that Rosendo had departed from the United States and re-entered with his wife and sister-in-law, deportation proceedings were commenced against Rosendo for entering the United States without inspection, in violation of INA Sec. 241(a)(2), 8 U.S.C. Sec. 1251(a)(2) (1988). ¹ Rosendo's wife and sister-in-law were processed for voluntary departure and left for Mexico that same evening.

Agent Robinson testified at Rosendo's deportation hearing. Robinson testified that he had questioned all three individuals for two-and-a-half to three hours, interrogating Rosendo both separately and along with the two women. Their statements indicated to him that they had all come from a ranch in Mexico and were heading to Rosendo's parents' house in Chicago. Robinson testified that he had asked all three how they entered the country, and that Rosendo had said he entered the United States across the Bridge of Americas "on the west sidewalk." Robinson testified (in an interesting insight into border security) that there were no immigration inspectors on the west side of the bridge, so a person walking from Mexico to the United States along the west sidewalk would not be subjected to immigration inspection. Robinson could not remember, but believed that all three told the same story about how they entered the United States. Robinson also testified that Rosendo had said that he had departed from the United States about five months before his re-entry to live with his wife in Mexico.

The other piece of evidence admitted at the deportation hearing was the INS Form I-213 (Record of Deportable Alien). The I-213, prepared by Agent Robinson after the initial encounter with Rosendo, purports to record Rosendo's statements during the interrogation. After listing basic identifying information, the I-213 provides in its entirety:

Subject was encountered this date at the Cutter Beechcraft, private air terminal in El Paso, Texas. Subject was encountered as a result of a confidential informant telephonic received at Border Patrol in El Paso, Texas. The information received indicated that a pilot had arrived at El Paso and was awaiting people to transport to Hobbs, New Mexico. Above mentioned agents proceeded to the location and met with the informant. The informant pointed out the pilot and several minutes later, subject arrived with two other (illegal) aliens from Mexico. All four (including pilot) boarded the small craft and were about to depart when they were instructed to re-taxi. At that time, the plane was approached and asked to state his citizenship. He stated that he was an American citizen. The passengers were also asked and subject along with them stated that they were in fact Mexican nationals, illegally in the United States. At that time, all were then placed under arrest. Upon interrogation, the following was ascertained: subject departed Chicago, Ill. on/about Nov. 15, 1988. (He had been staying with his parents for about 7 mos. prior) At the time of his departure, he intended to travel to El Cocon, Mncpo., Purisima, Gto., Mexico, where he was to stay with his lawful spouse. Subject stated that his intentions also were to ultimately take his spouse to Chicago, Ill. (All the aforementioned information was obtained after subject was confronted with the fact that CO indicated that he was indeed a LAPR, all along subject maintained that he was totally undocumented.) Subject also stated that he entered the United States illegally on above stated date and time walking north on the south-bound sidewalk at BOA POE. Subject further stated that he has no residence in the United States at this time, he simply stays at his parents' resident in Chicago, Ill. whenever he does travel there. He also stated that his Alien Registration Receipt Card is, at this time, in Mexico. He stated he had left it there in order to easily claim not documented and therefore be granted a VR.

The Immigration Judge terminated the deportation hearing, holding that a permanent resident is not deportable for entry without inspection unless he is guiding unlawful aliens into the country and that the INS had not proven that Rosendo was acting as a pathfinder. The Board of Immigration Appeals reversed, finding that the IJ had incorrectly stated the applicable law. The BIA granted Rosendo voluntary departure.

Rosendo petitions for review of the decision of the BIA, raising three claims: that the Immigration Judge erred in admitting the I-213 into evidence; that there was insufficient evidence that he had entered the country without inspection; and that since he had not made an "entry" for the purposes of the immigration laws, 8 U.S.C. Sec. 1101(a)(13), he was not deportable. We review the decision of the BIA to determine whether its factual findings are supported by "reasonable, substantial and probative evidence." 8 U.S.C. Sec. 1105a(a)(4); Woodby v. INS, 385 U.S. 276, 286-87, 87 S.Ct. 483, 488-89, 17 L.Ed.2d 362 (1966). In order to reverse, we must find that the evidence compels the conclusion that the BIA was wrong. INS v. Elias-Zacarias, --- U.S. ----, ----, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). We review conclusions of law de novo, although we defer to the BIA's reasonable interpretations of ambiguous provisions of the Act. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Zalega v. INS, 916 F.2d 1257, 1259 (7th Cir.1990); Jaramillo v. INS, 1 F.3d 1149, 1153 (11th Cir.1993). ²

I. Admissibility of I-213

Rosendo argues that the Board of Immigration Appeals erred in admitting the I-213 into evidence as substantive proof of deportability. ³ Although the hearsay rule does not apply to administrative proceedings, Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir.1988), the Fifth Amendment's guarantee of a full and fair hearing limits admissibility of evidence. Id.; Bridges v. Wixon, 326 U.S. 135, 153-56, 65 S.Ct. 1443, 1452-53, 89 L.Ed. 2103 (1945). Evidence is admissible in a deportation hearing if it is probative on the issue of entry into the United States and its use is fundamentally fair. Tejeda-Mata v. INS, 626 F.2d 721, 724 (9th Cir.1980), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982); Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir.1990). Rosendo claims that the I-213 was neither probative nor fundamentally fair. Rosendo's arguments about fundamental fairness are at bottom claims that the I-213 was too unreliable, so we essentially consider only the question of whether it was probative.

Since the I-213 is supposed to be a record of a conversation with an alien, courts have evaluated its probative value by considering whether there is evidence that the form is inaccurate or that the information recorded in it was obtained by someone other than the alien himself. Bustos-Torres, 898 F.2d at 1056; Tejeda-Mata, 626 F.2d at 724. Rosendo contends that Agent Robinson's testimony about the interrogations leading to preparation of the I-213 report show that the I-213 contains information provided by persons other than Rosendo. Agent Robinson testified that he did not interview the four witnesses separately (the passengers and the pilot), but rather jumped from one witness to another and engaged in a "discussion amongst all the witnesses." A.R. 73. He could not recall the order in which he spoke to individuals, or whether all of them told the same story about entering the United States. Rosendo argues that these factors prove that the one-paragraph I-213 was in fact a compilation of testimony from the four witnesses and the informant, and therefore was unreliable.

But the testimony that Agent Robinson conducted several interviews at once does not "compel the conclusion" that the BIA erred when it found the I-213 credible. Elias-Zacarias, --- U.S. at ---- n. 1, 112 S.Ct. at 815 n. 1. Robinson's testimony that he could not remember aspects of the interrogation--such as the order in which he interviewed witnesses or which witnesses provided information--at most casts doubt on, but does not contradict, the statements made in the I-213. Rosendo can adduce no additional evidence that the statements on the I-213 were made by anyone other than himself. He points out that the I-213 contains a legal conclusion--"subject stated that he entered the United States illegally"--other than merely his description of entry. But this alone does not impeach the...