Antonio Garcia-Virrey v. Loretta E. Lynch

606 F. App'x 370

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2015
• Docket: 12-70213
• Status: Unpublished

Opinion

MEMORANDUM ***

Antonio Garcia-Virrey, a citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) denial of his application for cancellation of removal. See 8 U.S.C. § 1229b(a). We deny the petition.

Garcia asserts that his procedural due process rights 1 were violated when the Immigration Judge (IJ) admitted a police report into evidence at his cancellation hearing without requiring cross-examination of the officer who prepared the report. 2 See Vilchez v. Holder, 682 F.3d 1195, 1198-99 (9th Cir.2012); Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir.1995); Cunanan v. INS, 856 F.2d 1373, 1374-75 (9th Cir.1988); see also Cinapian v. Holder, 567 F.3d 1067,1074 (9th Cir.2009). We disagree. There was no evidence that the officer’s own observations (for example the strong odor of alcohol) were not trustworthy. Thus, those would be admissible under the Federal Rules of Evidence, 3 which are more stringent than the rules applied in these proceedings. 4 More importantly, it does not appear that the BIA 5 relied on any improper material in that report. Thus, even if there were some unfairness, 6 the error, if any, was not prejudicial. 7

Petition DENIED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . See Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir.2001).

2 . We note that the IJ did not deny cross-examination; he indicated that he would resolve the issue if it wás raised later in the proceedings. It was not raised.

3 .See Fed.R.Evid. 803(8)(A).

4 . See, e.g., Cinapian, 567 F.3d at 1074; Espinoza, 45 F.3d at 310; Cunanan, 856 F.2d at 1374.

5 . See Vilchez, 682 F.3d at 1199.

6 . See id.

7