F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ANTONIO DAVILA PONCE,
Petitioner,
v. No. 02-9557
(INS No. A74 443 682)
JOHN ASHCROFT, Attorney General (Petition for Review)
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioner Antonio Davila Ponce seeks review of a Board of Immigration
Appeals (BIA) order affirming without an opinion the immigration judge’s (IJ)
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
removal decision that he was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii) as
an “alien who . . . has falsely represented[] himself . . . to be a citizen of the
United States for any purpose or benefit under . . . Federal . . . law.” Petitioner
argues (1) the IJ denied him due process by relying on evidence he had no
opportunity to confront and by denying him a continuance of the voluntary
departure hearing; (2) the BIA erred in affirming the IJ’s conclusion that he is
inadmissible under § 1182(a)(6)(C)(ii); and (3) the BIA erred in affirming the IJ’s
decision without issuing an opinion. Exercising jurisdiction under 8 U.S.C.
§ 1252, we reject petitioner’s arguments and deny the petition for review.
Petitioner is a native and citizen of Mexico. He entered the United States
without inspection in March 1995. In October 1997, he submitted an application
for a United States passport, accompanied by a fraudulent Colorado birth
certificate. Although he was charged with making a false statement in a passport
application in violation of 18 U.S.C. § 1542, he pled guilty to possessing an
identification document produced without lawful authority in violation of
18 U.S.C. § 1028(a)(6), (b)(5).
The Immigration and Naturalization Service (INS) 1
initially charged
1
The INS no longer exists. Its functions are now performed by the United
States Citizenship and Immigration Services within the Department of Homeland
Security. Hang Kannha Yuk v. Ashcroft , 355 F.3d 1222, 1224 n.3 (10th Cir.
2004).
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petitioner as removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being present
without authorization. Later, the INS also charged him as removable under
§ 1182(a)(6)(C)(ii) for falsely representing himself as a United States citizen
seeking to obtain a benefit under federal law. At the hearing before the IJ,
petitioner admitted he was removable because he entered the country without
inspection, but denied removability for falsely representing himself as a United
States citizen. In his oral decision, the IJ found that petitioner did make a false
claim of United States citizenship in order to procure a passport under the laws of
the United States. The IJ ordered petitioner removed to Mexico and denied
voluntary departure. The BIA summarily affirmed the IJ’s decision. See 8 C.F.R.
§ 3.1(a)(7) (now codified at 8 C.F.R. § 1003.1(a)(7)).
Petitioner argues the IJ denied him due process, because the IJ failed to
allow him to confront the witnesses whose testimony was used against him.
Specifically, he maintains an unsigned United States Department of State
Diplomatic Security Service report, the affidavit of Department of State Special
Agent Christopher St. Onge, the arrest warrant and the criminal complaint should
not have been given any weight because he did not have an opportunity to
confront the authors of the documents and because the documents contained facts
never established in court. Although petitioner concedes these documents were
admissible, he argues that the IJ’s giving them substantial weight denied him a
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fundamentally fair hearing. Petitioner further argues the documents do not
establish that he falsely represented himself to be a United States citizen.
We review claims of a denial of due process in a removal proceeding de
novo. Sanchez-Cruz v. INS , 255 F.3d 775, 779 (9th Cir. 2001). “[I]ndividuals
subject to deportation are entitled to procedural due process, which provides an
opportunity to be heard in a meaningful time and in a meaningful manner.”
Woldemeskel v. INS , 257 F.3d 1185, 1192-93 (10th Cir. 2001) (quotations
omitted). Petitioner received that. The INS submitted the documents to the
Immigration Court with service on petitioner on April 10, 1998, R. at 61-62, long
before the December 1, 1998 hearing. Despite knowing of this evidence,
petitioner presented no evidence on his own behalf. Nor did he ask to confront
any of the authors of the documents. To the extent he argues the IJ gave too
much weight to the evidence, we may not weigh the evidence. See Refahiyat v.
INS , 29 F.3d 553, 556 (10th Cir. 1994).
We reject petitioner’s assertion that the evidence before the IJ did not
establish he falsely represented himself to be a United States citizen. His
admissions that he is a citizen of Mexico and that he presented a false Colorado
birth certificate in order to obtain a United States passport, R. at 39, 41, alone are
substantial evidence to support removal under § 1182(a)(6)(C)(ii). Cf. Pichardo
v. INS , 216 F.3d 1198, 1199-1201 (9th Cir. 2000) (concluding petitioner was
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inadmissible under § 1182(a)(6)(C)(ii) after he was convicted of making false
claim of United States citizenship, through use of false birth certificate, in
violation of 18 U.S.C. § 911 when trying to enter United States). Thus, we cannot
say that the IJ’s decision that petitioner was subject to removal “is contrary to
what a reasonable factfinder would have been compelled to conclude.” Vatulev v.
Ashcroft , 354 F.3d 1207, 1211 (10th Cir. 2003).
Next, petitioner contends the IJ’s refusal to continue the hearing for
voluntary departure denied him due process, asserting he had no notice voluntary
departure would be addressed at the December hearing. We disagree. Although
the IJ informed the parties the December hearing would determine eligibility for
adjustment and availability of waiver, R. at 36, the hearing was intended to cover
all aspects of removal, including voluntary departure, as it was a continuation of
the removal proceedings. Moreover, petitioner has not shown prejudice. See
Michelson v. INS , 897 F.2d 465, 468 (10th Cir. 1990). The IJ considered the
equities he presented, and he does not indicate what additional evidence he would
have presented if the IJ had granted a continuance. The IJ therefore did not deny
petitioner due process. To the extent any part of petitioner’s argument is not
based on due process, we have no jurisdiction to review the denial of voluntary
departure. See 8 U.S.C. § 1229c(f).
Finally, petitioner argues the BIA erred in summarily affirming the IJ’s
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decision. This argument is foreclosed by recent Tenth Circuit authority. See
Sviridov v. Ashcroft , 358 F.3d 722, 726-27 (10th Cir. 2004); Batalova v. Ashcroft ,
355 F.3d 1246, 1253-54 (10th Cir. 2004); Hang Kannha Yuk , 355 F.3d at 1232.
Petitioner also maintains that review by a single board member was inappropriate
in this case. It makes no difference whether the BIA acted through a single
member, since we can directly and fully review the IJ’s decision, which the BIA
adopted. See Batalova , 355 F.3d at 1253 & n.8. As indicated above, our review
reveals no error in the IJ’s decision. See id. at 1253. Thus, the BIA appropriately
streamlined this case. See Sviridov , 358 F.3d at 727 (holding this court can
review Board member’s decision to streamline).
For the above reasons, we DENY the petition for review.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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