Avram v. Holder

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 23, 2010
• Docket: 06-71345
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 23 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

FLORENTINA MARINELA AVRAM, No. 06-71345

Petitioner, Agency No. A078-184-759

v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

FLORENTINA MARINELA AVRAM, No. 06-72849

v.

ERIC H. HOLDER, Jr., Attorney General,

On Petition for Review of an Order of the Board of Immigration Appeals

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Submitted June 18, 2010 ** San Francisco, California

Before: BYBEE, N.R. SMITH, and TYMKOVICH,*** Circuit Judges.

Appellant Florentina Marinela Avram appeals the decision of the Board of

Immigration Appeals (BIA) affirming her removability for entry fraud and denying

her request for withholding of removal. Avram’s claims of error arise mainly from

actions of the Immigration Judge (IJ) relating to his finding that she was also

removable for marriage fraud.

Avram claims the IJ violated her due process rights when he admitted a

hearsay statement from her ex-husband without making any attempt to procure the

declarant for cross-examination, citing our decisions in Hernandez-Guadarrama v.

Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005), and Saidane v. INS, 129 F.3d 1063,

1066 (9th Cir. 1997). We review due process challenges in immigration

proceedings de novo. Zetino v. Holder, 596 F.3d 517 (9th Cir. 2010). However,

the party claiming a due process violation must also show that the alleged error

prejudiced her—in other words, the party must show that “the IJ’s conduct

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Timothy M. Tymkovich, Circuit Judge for the Tenth Circuit Court of Appeals, sitting by designation.

2 06-71345 potentially affected the outcome of the proceedings.” Cano-Merida v. INS, 311

F.3d 960, 965 (9th Cir. 2002) (internal punctuation omitted).

Even if we assume that the IJ’s decision to admit this hearsay statement

violated Avram’s due process and statutory rights to cross-examine witnesses

against her, she has not shown this error affected the determination that she was

removable. Because Avram has not challenged the finding that she was removable

for entry fraud, and because the record clearly supports this finding, she has failed

to demonstrate prejudice.

Likewise, Avram’s claims that her Miranda rights were violated are

unavailing. Even if Avram was entitled to a Miranda warning during her visa

interview under United States v. Chen, 439 F.3d 1037, 1042 (9th Cir. 2006)

(immigration officials should give Miranda warnings during interviews if there is

an “especially heightened risk” of prosecution), the protections of Miranda were

not applicable to her deportation proceeding because “deportation proceedings are

not criminal prosecutions, but are civil in nature.” United States v. Salgado, 292

F.3d 1169, 1173 (9th Cir. 2002). Nor was she entitled to Miranda warnings during

her deportation hearing. Id.

Additionally, Avram asserts that she was eligible for cancellation of removal

for battered spouses. We lack jurisdiction to address this issue, because she failed

3 06-71345 to raise it to the BIA. See Cordon-Garcia v. INS, 204 F.3d 985, 988 (9th Cir.

2000).

Finally, we review the BIA’s decision to deny withholding of removal for

substantial evidence. Zetino, 596 F.3d at 522. It is the burden of the applicant to

supply sufficient evidence of past or likely future persecution to support a

withholding of removal claim. Id. at 527. The BIA’s determination that Avram

was not eligible for this form of relief was “supported by reasonable, substantial,

and probative evidence on the record considered as a whole,” id., and therefore we

will not disturb it on appeal.

DENIED.

4 06-71345