FILED NOT FOR PUBLICATION APR 30 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA ANTOINETTE No. 15-72224 MOREHEAD, AKA Monique Petrice Hightower, Agency No. A057-555-427
Petitioner, MEMORANDUM* v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 9, 2019** Pasadena, California
Before: TASHIMA and PAEZ, Circuit Judges, and KATZMANN,*** Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). *** The Honorable Gary S. Katzmann, Judge of the United States Court of International Trade, sitting by designation. Veronica Antoinette Morehead, a native and citizen of Jamaica, petitions for
review of a decision by the Board of Immigration Appeals (“BIA”) dismissing her
appeal from an immigration judge’s (“IJ”) decision that found her removable as
charged and ordered her removed to Jamaica. Morehead seeks relief on the
grounds that the IJ violated her due process rights by admitting documents that had
not been properly authenticated and without requiring additional testimony from
certain witnesses. She also challenges her removability on sufficiency of the
evidence grounds.
We have jurisdiction under 8 U.S.C. § 1252. Because the BIA adopted and
affirmed the IJ’s decision with a citation to Matter of Burbano, 20 I. & N. Dec. 872
(BIA 1994), while also adding its own reasoning, we review both the IJ and BIA
decisions. See Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). We
review de novo the BIA’s determination of constitutional and legal questions,
including claims of due process violations, see id., and we review any
administrative findings of fact for substantial evidence, meaning we uphold the
agency’s findings unless the evidence compels a contrary result, see 8 U.S.C. §
1252(b)(4)(B); Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013). We deny the
petition for review.
2 1. The IJ’s admission of and reliance on the passport application, FBI
rap sheet, and docket sheet relating to Monique Petrice Hightower did not violate
Morehead’s due process rights. The “sole test” governing the admission of
evidence in deportation proceedings is “whether the evidence is probative and its
admission is fundamentally fair.” Espinoza v. INS, 45 F.3d 308, 310 (9th Cir.
1995), as amended on denial of reh’g (Apr. 7, 1995). As to authentication
specifically, the Ninth Circuit has held that “immigration forms [must] be
authenticated through some recognized procedure, such as those required by
[Department of Homeland Security] regulations or by the Federal Rules of Civil
Procedure.” Id. at 309–10. We have clarified that the procedures set forth in the
Federal Rules of Evidence may also be used to authenticate documents in
immigration proceedings. See Vatyan v. Mukasey, 508 F.3d 1179, 1183 (9th Cir.
2007).
Here, the IJ considered various items of evidence before concluding that the
contested documents were authentic, i.e., that they were what the government
purported them to be: documents that related to Morehead even though they bore
the Hightower name. The IJ relied on the following evidence in concluding that
the documents could be linked to Morehead: (1) a fingerprint match between the
prints submitted by Morehead as part of her 2008 naturalization application and the
3 prints taken when “Monique Petrice Hightower” was arrested and charged in 2000
in California; (2) a photo, which the IJ unequivocally found was of Morehead, that
was submitted with the 1999 passport application under Hightower’s name; (3) a
photo that accompanied an official document from the Jamaican Constabulary in
the name of Veronica Antoinette Morehead; and (4) the listing of Wayne
Morehead as a cousin and contact person on the 1999 passport application in
Hightower’s name, and as a spouse in the 2004 visa application and 2008
naturalization application in Morehead’s name.
The IJ’s consideration of this evidence conformed to the procedure for
authentication set forth in Federal Rule of Evidence 901. See Vatyan, 508 F.3d at
1184 (explaining that Rule 901 “allows the . . . court to admit evidence if sufficient
proof has been introduced so that a reasonable [fact-finder] could find in favor of
authenticity”); cf. United States v. Whitworth, 856 F.2d 1268, 1282–83 (9th Cir.
1988) (finding that the district court had satisfied Rule 901(a)’s authentication
standard in a criminal case where the judge examined documents and compared
their contents to other known facts to conclude that they were authored by the
defendant). As a result, the IJ’s finding of authenticity not only was supported by
substantial evidence, but also satisfied our requirement that “immigration forms be
authenticated through some recognized procedure.” Espinoza, 45 F.3d at 309.
4 Under these circumstances, and because Morehead did not provide any evidence
undermining the documents’ trustworthiness or authenticity, the IJ was not
required to adduce testimony from experts or other witnesses, and the admission of
the documents was fundamentally fair. See id. at 310; Trias-Hernandez v. INS,
528 F.2d 366, 370 (9th Cir. 1975).
2. Morehead’s related argument that due process required the
government to produce such witnesses in order to provide her the opportunity to
confront and “cross-examine the witnesses against her” is also unavailing. Unlike
in Ching and Baliza, the government here did not introduce any affidavits or
documents containing testimony of “witnesses against” Morehead. See Ching v.
Mayorkas, 725 F.3d 1149, 1153, 1158–59 (9th Cir. 2013); Baliza v. INS, 709 F.2d
1231, 1232–34 (9th Cir. 1983). Moreover, because Morehead did not present any
evidence contradicting the information in or authenticity of the government’s
proffered documents, the IJ was not required to permit such cross-examination.
See Espinoza, 45 F.3d at 311 (“Aliens in deportation proceedings may not assert a
cross-examination right to prevent the government from establishing uncontested
facts.” (internal quotation marks omitted)).
3. Substantial evidence supports each of the three independent bases on
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FILED NOT FOR PUBLICATION APR 30 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA ANTOINETTE No. 15-72224 MOREHEAD, AKA Monique Petrice Hightower, Agency No. A057-555-427
Petitioner, MEMORANDUM* v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 9, 2019** Pasadena, California
Before: TASHIMA and PAEZ, Circuit Judges, and KATZMANN,*** Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). *** The Honorable Gary S. Katzmann, Judge of the United States Court of International Trade, sitting by designation. Veronica Antoinette Morehead, a native and citizen of Jamaica, petitions for
review of a decision by the Board of Immigration Appeals (“BIA”) dismissing her
appeal from an immigration judge’s (“IJ”) decision that found her removable as
charged and ordered her removed to Jamaica. Morehead seeks relief on the
grounds that the IJ violated her due process rights by admitting documents that had
not been properly authenticated and without requiring additional testimony from
certain witnesses. She also challenges her removability on sufficiency of the
evidence grounds.
We have jurisdiction under 8 U.S.C. § 1252. Because the BIA adopted and
affirmed the IJ’s decision with a citation to Matter of Burbano, 20 I. & N. Dec. 872
(BIA 1994), while also adding its own reasoning, we review both the IJ and BIA
decisions. See Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). We
review de novo the BIA’s determination of constitutional and legal questions,
including claims of due process violations, see id., and we review any
administrative findings of fact for substantial evidence, meaning we uphold the
agency’s findings unless the evidence compels a contrary result, see 8 U.S.C. §
1252(b)(4)(B); Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013). We deny the
petition for review.
2 1. The IJ’s admission of and reliance on the passport application, FBI
rap sheet, and docket sheet relating to Monique Petrice Hightower did not violate
Morehead’s due process rights. The “sole test” governing the admission of
evidence in deportation proceedings is “whether the evidence is probative and its
admission is fundamentally fair.” Espinoza v. INS, 45 F.3d 308, 310 (9th Cir.
1995), as amended on denial of reh’g (Apr. 7, 1995). As to authentication
specifically, the Ninth Circuit has held that “immigration forms [must] be
authenticated through some recognized procedure, such as those required by
[Department of Homeland Security] regulations or by the Federal Rules of Civil
Procedure.” Id. at 309–10. We have clarified that the procedures set forth in the
Federal Rules of Evidence may also be used to authenticate documents in
immigration proceedings. See Vatyan v. Mukasey, 508 F.3d 1179, 1183 (9th Cir.
2007).
Here, the IJ considered various items of evidence before concluding that the
contested documents were authentic, i.e., that they were what the government
purported them to be: documents that related to Morehead even though they bore
the Hightower name. The IJ relied on the following evidence in concluding that
the documents could be linked to Morehead: (1) a fingerprint match between the
prints submitted by Morehead as part of her 2008 naturalization application and the
3 prints taken when “Monique Petrice Hightower” was arrested and charged in 2000
in California; (2) a photo, which the IJ unequivocally found was of Morehead, that
was submitted with the 1999 passport application under Hightower’s name; (3) a
photo that accompanied an official document from the Jamaican Constabulary in
the name of Veronica Antoinette Morehead; and (4) the listing of Wayne
Morehead as a cousin and contact person on the 1999 passport application in
Hightower’s name, and as a spouse in the 2004 visa application and 2008
naturalization application in Morehead’s name.
The IJ’s consideration of this evidence conformed to the procedure for
authentication set forth in Federal Rule of Evidence 901. See Vatyan, 508 F.3d at
1184 (explaining that Rule 901 “allows the . . . court to admit evidence if sufficient
proof has been introduced so that a reasonable [fact-finder] could find in favor of
authenticity”); cf. United States v. Whitworth, 856 F.2d 1268, 1282–83 (9th Cir.
1988) (finding that the district court had satisfied Rule 901(a)’s authentication
standard in a criminal case where the judge examined documents and compared
their contents to other known facts to conclude that they were authored by the
defendant). As a result, the IJ’s finding of authenticity not only was supported by
substantial evidence, but also satisfied our requirement that “immigration forms be
authenticated through some recognized procedure.” Espinoza, 45 F.3d at 309.
4 Under these circumstances, and because Morehead did not provide any evidence
undermining the documents’ trustworthiness or authenticity, the IJ was not
required to adduce testimony from experts or other witnesses, and the admission of
the documents was fundamentally fair. See id. at 310; Trias-Hernandez v. INS,
528 F.2d 366, 370 (9th Cir. 1975).
2. Morehead’s related argument that due process required the
government to produce such witnesses in order to provide her the opportunity to
confront and “cross-examine the witnesses against her” is also unavailing. Unlike
in Ching and Baliza, the government here did not introduce any affidavits or
documents containing testimony of “witnesses against” Morehead. See Ching v.
Mayorkas, 725 F.3d 1149, 1153, 1158–59 (9th Cir. 2013); Baliza v. INS, 709 F.2d
1231, 1232–34 (9th Cir. 1983). Moreover, because Morehead did not present any
evidence contradicting the information in or authenticity of the government’s
proffered documents, the IJ was not required to permit such cross-examination.
See Espinoza, 45 F.3d at 311 (“Aliens in deportation proceedings may not assert a
cross-examination right to prevent the government from establishing uncontested
facts.” (internal quotation marks omitted)).
3. Substantial evidence supports each of the three independent bases on
which Morehead was found to be inadmissible at the time she entered the United
5 States in 2005, making her removable as an “alien who at the time of entry or
adjustment of status was within one or more of the classes of aliens inadmissible
by the law existing at such time.” 8 U.S.C. § 1227(a)(1)(A). First, substantial
evidence supported the finding that Morehead was inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(ii) for having falsely represented herself to be a United States
citizen to obtain a benefit, because the IJ found that Morehead filed a passport
application in 1999, in which she falsely claimed to be a citizen. As the BIA
noted, “a passport is clearly a ‘benefit’ under the immigration laws.” Matter of
Barcenas-Barrera, 25 I. & N. Dec. 40, 44 (BIA 2009).
In addition, substantial evidence supported the finding that Morehead was
inadmissible under § 1182(a)(6)(C)(i) for having misrepresented a material fact in
order to procure admission into the United States, because the FBI rap sheet
showed that Morehead had lied in her 2004 visa application about having never
been to the United States and having never been arrested, charged, or convicted of
a crime. Finally, substantial evidence supported the finding that Morehead was
inadmissible under § 1182(a)(7)(A)(i)(I) for not having been in possession of a
valid entry document, because the misrepresentations in her 2004 visa application
rendered void ab initio the visa that Morehead used to enter the United States in
2005. See Kyong Ho Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir. 2010)
6 (explaining that under Ninth Circuit precedent, “all grants of [legal permanent
resident] status that were not in substantive compliance with the immigration laws
[are] void ab initio” (citation omitted)).
PETITION FOR REVIEW DENIED.