NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CESAR OMAR LOPEZ DUARTE, AKA No. 17-71087 Cesar A. Lopez, Agency No. A205-466-438 Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 6, 2020 Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District Judge. Dissent by Judge RAWLINSON
Petitioner Cesar Omar Lopez Duarte, a former resident of San Francisco,
petitions for review of the Board of Immigration Appeals (BIA)’s decision
dismissing his appeal of the Immigration Judge (IJ)’s denial of his motion to
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. suppress a Form I-213. We have jurisdiction under 8 U.S.C. § 1252(a). We
review de novo questions of constitutional law. Khan v. Holder, 584 F.3d 773, 776
(9th Cir. 2009) (citing Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir. 2005)). For
the reasons explained below, we grant the petition and remand for further
proceedings.
1. The government contends that Lopez Duarte failed to exhaust his
argument that the IJ’s reliance on a “US-VISIT” form violated his due process
rights under the Fifth Amendment and 8 U.S.C. § 1229a, therefore limiting our
jurisdiction on review. See 8 U.S.C. § 1252(d)(1). We disagree. To satisfy the
exhaustion requirement in § 1252(d)(1), a party need only “put the BIA on notice”
in his appeal from an IJ’s order. Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th
Cir. 2018) (quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)).
Although a “‘petitioner cannot satisfy the exhaustion requirement by making a
general challenge’ to the BIA’s decision, the petitioner ‘need not . . . raise the
precise argument below.’” Id. at 960 (quoting Garcia v. Lynch, 786 F.3d 789, 793
(9th Cir. 2015) (per curiam)) (emphasis and alteration in original). Lopez Duarte
argued to the BIA that the IJ failed to conduct an adequate factual inquiry into the
origin of the information on the “US-VISIT” form and erred in making factual
findings concerning the form that were not supported by the record. He also
argued that evidence obtained in violation of due process and the agency’s own
2 regulations must be suppressed. Thus, Lopez Duarte “articulate[d] each essential
part of the contention he now raises.” Garcia, 786 F.3d at 793.
2. The IJ’s reliance on the “US-VISIT” form to deny Lopez Duarte’s
motion to suppress, without providing him an opportunity to confront and
challenge the document, violated due process. See Grigoryan v. Barr, 959 F.3d
1233, 1240-41 (9th Cir. 2020). We have repeatedly held that individuals in
removal proceedings must be provided a full and fair opportunity to confront
evidence offered by the government. Id.; Bondarenko v. Holder, 733 F.3d 899,
906-07 (9th Cir. 2013); Cinapian v. Holder, 567 F.3d 1067, 1074-75 (9th Cir.
2009).
The “US-VISIT” form was an exhibit to the government’s opposition to the
motion to suppress and was marked as an untimely filing. The form itself
contained numerous blank fields. The government did not offer any affidavits or
testimony explaining how the form was created. Following the appearance of the
parties at the hearing, the IJ announced his decision to deny the motion to suppress,
relying solely on the “US-VISIT” form. The IJ then proceeded to ask the parties
regarding any relief Lopez Duarte would be seeking, indicating that his ruling on
the motion to suppress was final.1 Because the IJ failed to provide Lopez Duarte
1 In context, the IJ’s questions regarding how Lopez Duarte “would like to proceed,” and whether there was “a type of relief” that Lopez Duarte would be seeking concerned applications for relief. These questions arose after the IJ had
3 any opportunity to confront or challenge the government’s “US-VISIT” form, and
then relied on that evidence to deny Lopez Duarte’s motion to suppress, the IJ
denied Lopez Duarte a fair hearing. See Grigoryan, 959 F.3d at 1240-41;
Bondarenko, 733 F.3d at 906-07.
Lopez Duarte has also shown that he was prejudiced by the due process
violation, as the “outcome of the proceeding may have been affected by the alleged
violation.” Grigoryan, 959 F.3d at 1240 (quoting Colmenar v. INS, 210 F.3d 967,
971 (9th Cir. 2000)). The IJ’s primary reason for denying Lopez Duarte’s motion
to suppress was—according to the IJ—independent evidence of his alienage noted
on the “US-VISIT” form. On the basis of that unchallenged evidence, the IJ
sustained the government’s factual allegations and concluded that Lopez Duarte
was removable. We are persuaded that the outcome of the motion to dismiss may
have been different had Lopez Duarte been afforded an opportunity to contest the
form. See Grigoryan, 959 F.3d at 1240-42; Bondarenko, 733 F.3d at 907-08.
Accordingly, for the above reasons, we grant Lopez Duarte’s petition for
review and remand to the agency for further proceedings consistent with this
announced his decision and were not meaningful opportunities for Lopez Duarte to re-open the motion to suppress to challenge the US-VISIT form. See Grigoryan, 959 F.3d at 1240 (concluding that the IJ failed to “afford[] [petitioners] a meaningful opportunity to rebut [the report’s] allegations”).
4 disposition. 2
Petition for review GRANTED and REMANDED.
2 In light of this disposition, we need not address the merits of Lopez Duarte’s motion to suppress the Form I-213. We note, however, that to the extent the IJ relied on Lopez Duarte’s bond counsel’s statement as an alternative basis for establishing alienage, the IJ erred. See Joseph v. Holder, 600 F.3d 1235, 1241 (9th Cir. 2010) (concluding evidence from a bond hearing should not be considered in a removal hearing).
5 FILED Lopez Duarte v. Garland, No. 17-71087 MAY 21 2021 Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent from the majority’s view that Petitioner established a
violation of due process. Although the case cited by the majority, Grigoryan v.
Barr, 959 F.3d 1233 (9th Cir. 2020), sets forth the proper test for establishing a due
process violation, the majority failed to properly apply that test to the facts of this
case. To prevail on a due process challenge, the Petitioner must demonstrate: (1)
“that the challenged proceeding was so fundamentally unfair that [he was]
prevented from reasonably presenting [his] case” and (2) “substantial prejudice
[which] is established when the outcome of the proceeding may have been
affected by the alleged violation.” Id. at 1240 (citations and internal quotation
marks omitted). Petitioner failed in both respects.
The majority contends that Petitioner did not have an adequate opportunity
to “confront and challenge” the US-VISIT report1 introduced into evidence by the
government to establish Petitioner’s non-citizenship. However, the record reflects
that Petitioner had ample opportunity to present any objection to the evidence
1 The majority refers to this as the US-VISIT form. It is actually not a form at all, but a computer report of data collected when a person encounters a port of entry or law enforcement to enable the United States to establish the identity of persons who enter the United States. See United States Visitor and Immigrant Status Indicator Technology Program (US–VISIT), 69 Fed.Reg. 53,318–01 (Aug. 31, 2004). 1 proffered by the government, including a challenge to the US-VISIT report, but
Petitioner simply failed to take advantage of that opportunity.
There were at least five junctures during the removal proceedings when the
opportunity was available for Petitioner to challenge the US-VISIT report. First, in
response to Petitioner’s motion to suppress the I-213, which motion was filed only
sixteen (16) days before the repeatedly continued removal proceedings, the
government provided a copy of the US-VISIT report to Petitioner eight (8) days
before the proceedings. Petitioner, however, did not file any objection to the US-
VISIT report at that opportunity.
Petitioner’s second opportunity was provided at the continued removal
proceedings when the Immigration Judge (IJ) referred to “independent evidence of
alienage [the US-VISIT report] that is not suppressible.” Following the reference
and after hearing the IJ describe the evidence as “not suppressible,” counsel for
Petitioner responded to the IJ’s inquiry about how counsel’s “client [would] like to
proceed” by mentioning only suppression of the I-213, with absolutely no mention
of any challenge to the US-VISIT report.
Petitioner’s third opportunity came when the IJ reminded Petitioner’s
counsel that the motion to suppress only “reserv[ed] appeal of that decision.” The
IJ then inquired whether there was “a type of relief” that Petitioner would be
2 seeking, to which counsel for Petitioner responded: “No. There isn’t.” This
inquiry provided another opening for counsel to challenge the US-VISIT report if
he so desired, but he failed to do so.
Petitioner’s fourth opportunity arose when the IJ reiterated to Petitioner’s
counsel that Petitioner “wasn’t going to seek any relief from removal other than his
motion to suppress.” Rather than displaying any inclination to challenge the US-
VISIT report, counsel merely responded, “That’s correct, Your Honor,” thereby
confirming Petitioner’s only objection was to the I-213 form.
Petitioner’s fifth opportunity was presented when the IJ inquired: “So if your
client isn’t going to seek any relief and there are no applications before the Court
then it appears I have no other alternative but to issue an order of removal. Do you
agree, Mr. Prasad?” Again, counsel failed to take this opportunity to raise an
objection to the US-VISIT report, and simply responded: “Yes, your Honor.”2
2 The majority argues that, “in context,” these “were not meaningful opportunities for Lopez-Duarte to reopen the motion to suppress to challenge the US-VISIT form.” However, exactly the opposite is true, because the IJ expressly referenced the motion to suppress the I-213 form when inquiring about the relief sought by Lopez-Duarte. The IJ’s inquiry referencing the motion to suppress presented the perfect opportunity for Lopez-Duarte to also seek suppression of the US-VISIT report. Counsel simply failed to take advantage of the opportunity. Moreover, counsel had eight days prior to the hearing to move to suppress the US- VISIT report or move for an extension of time to do so, but failed to take any action whatsoever. Under the majority’s framework, a meaningful opportunity (continued...) 3 The majority’s position would be more persuasive if Petitioner were
proceeding pro se. However, Petitioner was represented by counsel, who
recognized the distinction between challenging admission of the I-213 form and
challenging the US-VISIT report. It is readily apparent that counsel elected to
challenge the former, but not the latter. See Garcia v. I.N.S., 222 F.3d 1208, 1209
(9th Cir. 2000) (explaining that it “is a longstanding principle that . . . each party is
deemed bound by the acts of his lawyer-agent”) (citation and internal quotation
marks omitted).
The record reflects a choice by counsel on how to most effectively represent
his client. That Petitioner now has counsel that sees the case differently is not a
valid basis for finding a due process violation, especially when Petitioner’s prior
counsel failed to take advantage of numerous opportunities to object to the
admission of the US-VISIT report. See Ng Kai Ben v. Weedin, 44 F.2d 315, 317
(9th Cir. 1930) (explaining that when evidence is “admitted before an
administrative board without objection by the person against whom the evidence is
2 (...continued) required the IJ to prompt counsel to move to suppress the US-VISIT report. Due process and our precedent, however, do not support the majority’s view. See Hussain v. Rosen, 985 F.3d 634, 642 (9th Cir. 2021) (holding that while due process requires “impartial proceedings where petitioners may make their case,” petitioners “are not entitled to the IJ’s legal assistance in doing so”). 4 elicited, the court could not say that the appellant had been ordered deported
without due process of law because of the admission of such testimony to which he
made no objection”); see also Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th
Cir. 2006) (remarking that “we do not hesitate in holding that the BIA [Board of
Immigration Appeals] was justified in relying on the records” when petitioner
“made no objection in the Immigration Court to the admission of the records”).
Because Petitioner, through counsel, had multiple opportunities to challenge
admission of the US-VISIT report, but failed to capitalize on those opportunities,
there was no due process violation. See Grigoryan, 959 F.3d at 1240 (explaining
that due process requires “a reasonable opportunity to present and rebut evidence”)
(citations omitted).
To the extent the majority implies that Petitioner was denied due process
because the “government did not offer affidavits or testimony explaining how the
[US-VISIT report] was created,” such a contention is legally unsupportable. The
United States Supreme Court long ago determined that a violation of due process
cannot be established based on the admission of unauthenticated documents into
evidence. See United States ex rel. Vajtauer v. Commissioner of Immigration, 273
U.S. 103, 106 (1927) (explaining that in immigration proceedings “a want of due
process is not established by showing merely . . . that incompetent evidence was
5 received and considered”) (citation omitted); see also Singh v. Holder, 638 F.3d
1196, 1209 (9th Cir. 2011) (rejecting petitioner’s “argument that his due process
rights were violated when the IJ admitted his unauthenticated RAP sheet into
evidence”).
Cases relied upon by the majority do not support a violation of due process
in this case. Each of those cases involved a report prepared specifically to
challenge the authenticity of evidence offered by the petitioner in support of an
application for relief, but first provided to the petitioner at the removal proceeding.
The petitioners’ due process challenges were sustained because those reports were
admitted over petitioners’ objections, even though petitioners were unable to refute
the previously undisclosed reports without further independent investigation. See
Grigoryan, 959 F.3d at, 1236–37 (report containing local investigators’ suspicions
that petitioner’s documents had been altered); Bondarenko v. Holder, 733 F.3d
899, 904-05 (9th Cir. 2013) (report containing foreign hospital official’s
conclusion that petitioner’s medical records were fraudulent); Cinapian v. Holder,
567 F.3d 1067, 1072, 1075 (9th Cir. 2009) (report prepared by forensic document
examiner challenging petitioner’s documents). Here, the information on the US-
VISIT report was collected in the normal course of Petitioner’s entrance, unlike
reports created for the express purpose of challenging the authenticity of
6 petitioner’s evidence, with no presumed indicia of reliability. Petitioner had years
to collect evidence establishing that he was not subject to removal based on his
non-citizenship, and could have so testified himself. Instead, he sought to avoid
removal based solely on the government’s inability to establish non-citizenship,
but failed to object to the publicly maintained US-VISIT report that established his
non-citizenship and was provided in advance of the hearing. Petitioner simply
cannot assert a violation of due process when he failed to take advantage of the
process provided. See Haile v. Holder, 658 F.3d 1122, 1128 (9th Cir. 2011)
(holding that “the admission of [documents] did not violate due process,” and
petitioner’s “challenges to the [admitted documents were] unavailing” when
petitioner did “not cast doubt on the probative value or fairness of the evidence
presented, nor did she present any contrary evidence to challenge the reliability of
the” admitted documents) (citations and internal quotation marks omitted).
The majority also fails to point to any prejudice suffered by Petitioner. The
majority assumes, without any evidence in the record, that the outcome “may have
been different had [Petitioner] been afforded an opportunity to contest the [US-
VISIT report].” (emphasis added). However, as discussed, Petitioner had not one,
but five opportunities to challenge the US-VISIT report. More importantly,
Petitioner failed to meet his burden to establish that the “outcome of the
7 proceeding may have been affected.” Grigoryan, 959 F.3d at 1240. The
majority’s assumption cannot fulfill Petitioner’s burden.
The government authenticated the US-VISIT report by extensively outlining
the procedures for how information on the report is collected, stored and compiled,
and connecting that information to Petitioner. See Padilla-Martinez v. Holder, 770
F.3d 825, 833 (9th Cir. 2014) (explaining that “[a]dmissibility is generally
warranted so long as there is some sort of proof that the document is what it
purports to be”) (citation and internal quotation marks omitted); see also Las Vegas
Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (holding that documents
“could be authenticated by their distinctive characteristics” under Federal Rule of
Evidence 901(b)(4), and reversing decision that documents “must be authenticated
by a competent witness with personal knowledge of their authenticity”).3
In Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir. 1995), as amended on
denial of reh’g, we held that “information on an authenticated immigration form is
3 Even if the US-VISIT report was not properly authenticated, Petitioner waived any objection by failing to raise it to the IJ or the BIA. See Espinoza Ojeda v. United States Immigr. & Naturalization Serv., 419 F.2d 183, 186 n.2 (9th Cir. 1969) (noting that when “no objection was made at that time by counsel representing petitioner,” then “[a]ny objection to the entry of the statement into evidence was thus waived”); see also Rodas-Mendoza v. I.N.S., 246 F.3d 1237, 1240 (9th Cir. 2001) (holding that when petitioner “failed to raise [an] argument before the IJ or the BIA,” petitioner “has waived it and cannot raise it before this Court”). 8 presumed to be reliable in the absence of evidence to the contrary presented by the
alien.” “The burden of establishing a basis for exclusion of evidence from a
government record falls on the opponent of the evidence, who must come forward
with enough negative factors to persuade the court not to admit it.” Id. (citation
omitted). When the source of the information is a government official, petitioner
must show “strong evidence of unreliability” to exclude evidence. Id.
Petitioner cannot establish prejudice on this basis because he failed to
provide any evidence of unreliability, much less the “strong evidence of
unreliability” required to exclude the US-VISIT report. Petitioner points to certain
fields that were left blank, but does not dispute that he actually was involved in the
encounters documented in the US-VISIT report, on the dates and times identified.
Petitioner also does not dispute that the Fingerprint Identification Number (FIN)
and birth date on each entry is the same, or that the FIN and birth date accurately
reflect his fingerprints and birth date. He further does not dispute that the
photographs in the US-VISIT report are of him. Finally, Petitioner does not
provide any explanation why two separate government officials, ten years apart,
and at different locations, identified Petitioner as a National and Citizen of Mexico,
when those officials presumably had no “motive or interest other than to submit
accurate and fair reports.” Id. at 310.
9 The fact that different government officials left certain fields blank when
documenting separate encounters with Petitioner is evidence that they did not
collect the information during that encounter, rather than evidence of unreliability.
See id. (rejecting claim that immigration form was unreliable, even though the
form did “not indicate who filled it out and when” because petitioner failed to offer
“evidence to show that the form contains material errors”). Petitioner cannot show
prejudice because Petitioner, even now, has failed to establish any substantive
basis for excluding the US-VISIT report. See Morales-Izquierdo v. Gonzales, 486
F.3d 484, 495 (9th Cir. 2007), as amended (en banc) (holding that “to show
prejudice, [petitioner] must present plausible scenarios in which the outcome of the
proceedings would have been different”) (citation and internal quotation marks
omitted).
Because Petitioner failed to establish a due process violation or prejudice, I
respectfully dissent.