Jaime Lopez-Chavez v. Immigration and Naturalization Service

259 F.3d 1176, 2001 Daily Journal DAR 7773, 2001 Cal. Daily Op. Serv. 6309, 2001 U.S. App. LEXIS 16800

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 2001
• Docket: 99-70251
• Status: Published

Opinions

Opinion by Judge SILVERMAN; Dissent by Judge PREGERSON.

SILVERMAN, Circuit Judge:

We previously have held that the INS can prove alienage with a properly authenticated INS form 1-213. Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.1995). The issue in this case is whether an authenticated INS form WR-424 also is admissible to prove alienage. Although the WR-424 is smaller than the 1-213, it contains the same information that we held to be critical in Espinoza and is prepared in essentially the same way. We therefore hold that a properly authenticated WR-424 is admissible in a deportation hearing to prove its contents.

1. Procedural Background

Jaime Lopez-Chavez petitions for review of the order of the BIA that he is deportable to Mexico for entering the United States without inspection. We have jurisdiction under Section 106(a) of the INA, 8 U.S.C. 1105a(a), to review this final deportation order.²

The Orange County Sheriffs Office arrested Lopez-Chavez (and 150 other striking drywall workers) on July 2, 1992 and brought him to Orange County Jail. INS Officer Miera interviewed Lopez-Chavez in the jail later that day. Officer Miera questioned him about his name, place of birth, nationality, and means of entry into the United States. Lopez-Chavez answered that he was born in Nochixtlan, Mexico, was a Mexican national and that he entered the United States without inspection on or about January 5, 1989. Mi-era recorded Lopez-Chavez’s responses on INS form WR-424, a 3 by 5 form completed by agents when they interview aliens. The WR-424 contains blanks for the agents to fill in the following information: name of the alien questioned; place and date of birth; status at entry; place, date, and time of entry; place, date, and time questioned; and the officer’s name.

At his deportation hearing months later, Lopez-Chavez stated his name, then asserted the Fifth Amendment privilege against self-incrimination regarding his al-ienage. At that point, the INS offered into evidence a certified copy of the INS form WR-424. Lopez-Chavez’s counsel objected to the admission of the WR-424 on the grounds of lack of authentication, inability to cross-examine the maker of the document, and its alleged inherent unreliability. Officer Miera, the maker of the document, was then called to the stand. He testified that the WR-424 contained his handwriting and that he had prepared it from answers provided to him by Jaime Lopez-Chavez at the Orange County Jail on July 2.³

The form showed the following information:

NAME: LOPEZ-CHAVEZ, Jaime

PLACE OF BIRTH: NOCHIXTLAN, MEXICO

DATE OF BIRTH: 1-5-66 NATIONALITY: MX

STATUS AT ENTRY: EWI⁴

PLACE, DATE & TIME AM OF ENTRY: 1-5-90 near SYS PM⁵

DATE, PLACE & TIME QUESTIONED: 712/92/OCJ ⁶

TIME & PLACE ARRESTED: 7/g/flg

APPREHENDING OFFICER: Miera

The IJ ruled that the form had established Lopez-Chavez’s alienage and that therefore, the burden shifted to Lopez-Chavez to demonstrate a legal time, place and manner of entry into the United States. Because Lopez-Chavez offered no evidence of lawful entry, the IJ found him deportable but granted Lopez-Chavez’s request for voluntary departure.

On appeal, the BIA held that: (1) the certified WR-424 was properly admitted because Miera testified as the maker that it was an official document completed in the routine performance of his duties and contained information provided to him by Jaime Lopez-Chavez, (2) the identity of the names of respondent and the person described in the form was sufficient to prove that the form pertained to him, in the absence of evidence to the contrary; and (3) the WR-424, along with the agent’s testimony,- established alienage, shifted the burden to Lopez-Chavez to show time, place and manner of entry. The BIA dismissed the appeal.

II. Standard of Review

We review the BIA’s finding of deportability to determine if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Murphy v. INS, 54 F.3d 605, 608 (9th Cir.1995).

III. Discussion

Lopez-Chavez argues that the WR-424 and the testimony of the INS agent in this case did not establish deport-ability by clear and convincing evidence. The INS had the burden of proving alien-age by “clear, convincing, and unequivocal evidence.” 8 C.F.R. § 240.24(a); Woodby v. INS, 385 U.S. 276, 281, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Murphy, 54 F.3d at 608. Once the INS proves alienage, the burden shifts to the alien to prove the time, place and manner of his entry into the United States. 8 U.S.C. § 1361 (1966); Murphy, 54 F.3d at 608. If the alien fails to meet this burden, he is presumed to be in the United States in violation of the law and deportable. Iran v. INS, 656 F.2d 469, 471 (9th Cir.1981).

We already have held that the INS can prove alienage with an authenticated 1-213 form. Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.1995). In Espinoza, we held that the properly admitted 1-213, which contained the alien’s name, citizenship and an indication of entry without inspection, was clear and convincing evidence of deportability that shifted the burden to the alien to demonstrate legal entry. Espinoza, 45 F.3d at 311. The WR-424 is the size of an index card, but it contains the same basic information — collected in the same way — as its bigger brother, the Form 1-213. The reliability of the information does not depend on the size of the paper. What matters is how the form is completed, when it is completed, the absence of coercion or duress in securing the information, and whether there is any reason to believe that the document does not pertain to the person in question. It must be shown that the document has been certified by the INS District Director as a true an accurate reflection of INS records. See Iran, 656 F.2d at 472; Tejeda-Mata v. INS, 626 F.2d 721, 724 (9th Cir.1980); Trias-Hernandez v. INS, 528 F.2d 366, 369 (9th Cir.1975). We hold that if a proper foundation is laid, a certified WR-424 form is admissible to prove its contents to the same extent as a Form 1-213.

In this case, the WR-424 was properly certified. There was no evidence that the information on the form was obtained by coercion or duress, or from anyone other than Lopez-Chavez himself. Although the WR-424 was probably admissible as a record of a regularly conducted activity under Rule 803(6), Federal Rules of Evidence, we held in Espinoza that an Immigration Judge is not bound by the strict rules of evidence at a deportation hearing. What matters is that the alien is accorded due process. Espinoza, 45 F.3d at 310. The admission of the WR-424 into evidence did not violate Lopez-Chavez’s right to due process.

What did the WR-424 prove? It established that Lopez-Chavez was born in Mexico, that he is a Mexican national, and that he entered the United States without inspection. That evidence was not contradicted in any way. A prima facie case of alienage was thus established, shifting the burden to Lopez-Chavez to prove his lawful entry into the United States. Because he offered no such evidence, the record clearly and convincingly established Lopez-Chavez’s deportability.⁷

PETITION FOR REVIEW DENIED.

2 . On September 20, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act was signed by the President. Pub.L. No. 104-208, 110 Stat. 3009. Sections 306(a) and 306(b) repeal INA § 106. See 8 U.S.C. § 1252. The transitional rules of the IIRIRA apply to this case because the INS commenced deportation proceedings on July 10, 1992 and the BIA issued its decision on February 8, 1999. IIRIRA § 306(c)(1) as corrected by Pub.L. No. 104-302, § (2)(1), 110 Stat. 3567; Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). The appeal is timely under the transitional rules because it was filed on March 10, 1999, within 30 days of the BIA's decision in this case.

3 . The dissent says that Officer Miera was unable to recall the source of the information he used to fill out the WR-424. We respectfully disagree with our dissenting colleague’s reading of the record. Officer Miera unequivocally testified several times on direct examination that all of the information reflected on the WR-424 form came directly from Lopez-Chavez:

[By INS counsel:]

Q. Let me show you a — -a copy of the — of the Form 424 that bears the respondent's name Jaime Lopez Chavez. Have you ever seen that document before?

A. Yes, I have. I prepared it.

Q. Is that document entirely — all the answers thereto entirely in your own handwriting?

A. Yes.

Q. Does it bear your name on that document?

A. Yes, it does down at the bottom.

Q. Now, how did you get the answers on that — on those blank spaces there?

A. I interviewed Mr. Lopez at the Orange County Jail.

* ER 84, lines 6-17.

Q. Okay. So, you basically asked the man whose name appears on that form all these questions relating to that form?

A. Yes, I did.

Q. And then you — what did you do — You— You — Did you — What did you do when he answered those questions?

A. I filled out the form based on the information he gave me and if you notice here also, on the side, I even asked him some other questions — if he had family, what ties he had in the U.S. and so forth — some notations.

Q. And it's entirely in you own writing-

A. Yes, that's all —

Q. — or printing? All right.

A. It's all my writing.

ER 87, lines 7-22.

On cross-examination, there was the following colloquy:

[By counsel for Lopez-Chavez:]

Q. Did any of the information on the 424 come from any of the records at the Orange County Sheriff's Department?

A. No.

Q. Did you review a booking log or a booking record in — in the respondent's case.

A. The — Each—Each individual coming to us as I recall had a computerized form from the county in — in every — I remember seeing that. And if the — the alien himself had it, we would look at it and give it back to him.

Q. What sort of information was contained on this computerized — this computer printout?

A. It had a name on there and I — I don't— don’t know what other information it may have had but I recall that they did have a name — name on the form.

Q. And in any of the cases you processed on July 2nd, did you note any of that — any information on the computer printout on any notes you might have taken?

A. I didn’t keep any notes. All I had — All I kept was the 424 and then I gave that to the supervisor.

Q. Did any of the information on the computer printouts make its way directly onto the 424?

A. No, I don’t — I didn't need that type of information because I — I can speak the language well enough that I could interview him well enough to extract what I needed for the 424.

* Q. But you don't remember for sure whether you took any information from the computer printout?

A. No, I don't recall.

ER 104, line 18 to ER 105, line 21.

Lopez-Chavez’s counsel did not pursue on cross-examination the question of what, if anything, came from the printout. The judge also put questions to Officer Miera:

[By the Court:]

Q. The Court has just a couple of questions. Now, sir, you indicated previously that on July 2, 1992 you interviewed a gentleman by the name of — who identified himself to you as Jaime Lopez Chavez. This person was it the custody of the Ora'nge County Sheriff. The place of the interview was the Orange County Jail. Is that correct?

A. That's correct, sir.

Q. All right. Now, again, referring to the 424 that was previously shown to you, I show it to you again. The markings that appear on this form are entirely in your-TheyThe hand printed marking are entirely in your writing. Is that correct?

A. That’s correct, sir.

Q. And the information that appears in the first six linesthat is, after name; place of birth; date of birth; status at entry; place, date and time of entry; -well, the first five lines, that — that is recorded information that you received from the person that you interviewed with that name?

A. Yes, sir, that’s correct.

Q. All right. Do you have any reason to believe that the information that was provided to you at that time by that individual in response to questions regarding those matters was incorrect?

A. No, that was correct. It was correctly—

ER 129, line 22 to ER 130 line 22.

The judge then concluded that the information on the WR-424 came from Lopez-Chavez. We have no basis on which to find that the judge’s conclusion was erroneous. The only fair reading of Officer Miera's testimony in context is that the information reflected on the WR-424 form came from Lopez-Chavez and that Officer Miera did not recall resorting to any other source.

4 . "EWI” means "entered without inspection.”

5 . "SYS” means San Ysidro.

6 . "OCJ” means "Orange County Jail.”

7 . Lopez-Chavez also argues that the admission of the WR-424 violated his due process rights because, he claims, it was obtained in violation of 8 C.F.R. § 287.3. However, that regulation does not apply in this case. Section 287.3 applies only to an alien arrested on immigration charges without a warrant. Lopez-Chavez was not under warrantless arrest on immigration charges at the time he spoke to Agent Miera on July 2, 1998. Rather, he was in state custody incident to his arrest on other charges by the Orange County Sheriff. Lopez-Chavez was not arrested on immigration charges until July 10, 1998, when the INS served him with an arrest warrant.