FILED
United States Court of Appeals
Tenth Circuit
April 15, 2010
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
RICARDO MARTINEZ-OSOGOBIO,
Petitioner,
No. 09-9532
v. (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
An immigration judge (IJ) found petitioner Ricardo Martinez-Osogobio
removable under 8 U.S.C. § 1182(a)(6)(A)(i), denied his request for voluntary
departure, and ordered him removed to Mexico. After the BIA dismissed
Mr. Martinez-Osogobio’s appeal, he petitioned this court for review. We deny
the petition for review.
*
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Background
On September 17, 2008, Mr. Martinez-Osogobio was convicted of criminal
impersonation in violation of Colo. Rev. Stat. § 18-5-113(1)(e) and sentenced to
160 days in jail. The Department of Homeland Security (DHS) thereafter issued
him a notice to appear, charging him as subject to removal as (1) “[a]n alien
present in the United States without being admitted or paroled,” 8 U.S.C.
§ 1182(a)(6)(A)(i), and (2) an alien who has been “convicted of . . . a crime
involving moral turpitude,” 8 U.S.C. § 1182(a)(2)(A)(i)(I), namely, criminal
impersonation. At a preliminary hearing before an IJ, Mr. Martinez-Osogobio
admitted he is a native and citizen of Mexico and that he entered the United
States on February 1, 1999, at or near El Paso, Texas. But, he denied that he had
not been lawfully admitted, denied that he had been convicted of criminal
impersonation, and denied the two charges in the notice to appear.
At a subsequent merits hearing, Mr. Martinez-Osogobio offered his
affidavit to establish his lawful presence in the United States pursuant to a prior
admission into the country. In the one-page affidavit dated October 15, 2008,
Mr. Martinez-Osogobio states: “I think I was about 12 years old when I first
arrived in the United States . . . . I took the bus from Mexico City to Ciudad
Juarez with my godfather, Ramon,” knowing that “I was on my way to the United
States to see my mother.” Admin. R. at 142, ¶¶ 1-2. Upon arriving in Ciudad
Juarez, he and his godfather met a couple who told him they would take him to
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his mother in the United States. Id., ¶ 3. The affidavit explains, “I later found
out that the man was my mother’s boyfriend . . . Alejandro Lopez.” Id. As to the
specific circumstances of his entry into the United States, the affidavit states:
I remember standing in line to enter the United States. We stood in
line and [immigration] officers were checking people as they entered
the United States. . . . When it was our turn to speak with [an]
officer, [the couple] did all of the talking. I do not know what they
said to the officer, as I did not speak English [at that time]. When
they were finished speaking to the officer, he let us through the
border. . . . The next morning, we took the bus . . . to Colorado.
Id., ¶¶ 4-7.
After reviewing the affidavit the IJ explained, “the problem is
[Mr. Martinez-Osogobio] admitted nativity. The burden is his, and all he
submitted with regard to that is an affidavit, which I will give due weight to, but
it’s nonetheless self-serving.” Id. at 109. Mr. Martinez-Osogobio’s counsel
responded, “Right[,]” and asked “if the court would like to hear directly from [his
client].” Id. The IJ declined, stating: “Unless there’s going to be something
other than what’s in his affidavit, . . . it’s not going to change the result.” Id.
Mr. Martinez-Osogobio’s counsel replied, “I understand, Your Honor,” but
submitted his client “had no document when he came in. He crossed the border,
he was inspected by an [i]mmigration officer . . . , and under Matter of
[Areguillin, 17 I&N Dec. 308 (BIA 1980)], that’s [a] lawful entry.” Admin. R.
at 109. The IJ was not persuaded.
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At the conclusion of a second merits hearing, the IJ rendered an oral
decision sustaining the charge of removability under 8 U.S.C. § 1182(a)(6)(A)(i).
The IJ did not, however, sustain the charge of removability under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). The IJ denied voluntary departure and ordered
Mr. Martinez-Osogobio removed to Mexico.
The BIA, in a brief decision issued by a single member, dismissed
Mr. Martinez-Osogobio’s appeal. 1 In so doing, the BIA recounted the contents of
the affidavit and agreed with the IJ’s
legal conclusion that [Mr. Martinez-Osogobio] did not meet his
burden of proving by clear and convincing evidence that he is
lawfully present in the United States pursuant to a prior admission,
notwithstanding our holding in Matter of Areguillin, 17 I&N Dec.
308 (BIA 1980), a case that pre-dates the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 . . . .
Admin. R. at 3 (citing 8 U.S.C. § 1229a(c)(2)(B), and 8 C.F.R. § 1240.8(c)). The
BIA explained, “even taking [Mr. Martinez-Osogobio’s] sworn statements as
credible, we agree with the Immigration Judge that his uncorroborated testimony
is insufficient to meet his burden under the ‘clear and convincing evidence’
standard for demonstrating lawful presence after a prior admission . . . .” Id.
Accordingly, the BIA concurred with the IJ’s determinations that
Mr. Martinez-Osogobio “is inadmissible” under 8 U.S.C. § 1182(a)(6)(A)(i), and
1
As noted by the BIA, DHS did not challenge the IJ’s finding that
Mr. Martinez-Osogobio’s conviction for criminal impersonation did not constitute
a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I).
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“that voluntary departure is not warranted as a matter of discretion.” Id. This
petition for review followed.
Discussion
The BIA’s single-member decision dismissing Mr. Martinez-Osogobio’s
agency appeal “constitutes a final order of removal which we review pursuant to
8 U.S.C. § 1252(a)(1) and (b)(2).” Witjaksono v. Holder, 573 F.3d 968, 973
(10th Cir. 2009). We consider “the BIA’s legal determinations de novo, and
findings of fact under a substantial-evidence standard.” Razkane v. Holder,
562 F.3d 1283, 1287 (10th Cir. 2009). Although the immediate object of our
review is the BIA’s decision, “[w]e may consult the oral decision of an IJ to the
extent the BIA’s order incorporates its reasoning.” Witjaksono, 573 F.3d at 973.
When an alien, like Mr. Martinez-Osogobio, is charged with being subject
to removal under 8 U.S.C. § 1182(a)(6)(A)(i), DHS has the burden of establishing
alienage. 8 C.F.R. § 1240.8(c). And when, as here, alienage is established by a
voluntary admission before an IJ, the burden shifts to the alien to establish “by
clear and convincing evidence” that he “is lawfully present in the United States
pursuant to a prior admission.” 8 U.S.C. § 1229a(c)(2)(B); 8 C.F.R. § 1240.8(c)
(same). He also has the burden of “show[ing] the time, place, and manner of his
entry into the United States.” 8 U.S.C. § 1361.
Mr. Martinez-Osogobio contends the IJ and BIA applied an
“inappropriately stringent” standard in holding his affidavit insufficient to
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establish his lawful presence, and that he was erroneously required “to
corroborate his entry with a document clearly not available to him.” Pet’r
Opening Br. at ii. These arguments are misplaced.
First, our review of the pertinent material evidences both the IJ and the BIA
were aware of, and applied, the applicable clear-and-convincing standard of
review in concluding that Mr. Martinez-Osogobio had not proved he was lawfully
present in the United States pursuant to a prior admission. Second, and contrary
to Mr. Martinez-Osogobio’s assertion, the IJ did not—in alleged contravention of
Matter of Areguillin—demand an “entry record,” and he did not make “his
decision on the sole basis that [Mr. Martinez-Osogobio] could not produce this
requested corroboration.” Pet’r Opening Br. at 14-15 (emphasis added). Rather,
the IJ expressed concern that Mr. Martinez-Osogobio did not offer any evidence
to corroborate his sworn statement regarding his border-crossing. Indeed, when
counsel for Mr. Martinez-Osogobio expressly asked the IJ if he was inclined to
sustain the charge under § 1182(a)(6)(A)(i) “based purely” on the fact “that
there’s not a record of [entry],” the IJ responded, “He didn’t meet his burden of
showing the time, place, and manner of his last lawful entry into the United
States. It’s just a matter of failing to meet his burden.” Admin R. at 113. Thus,
we hold that the BIA did not err by agreeing with the IJ’s determination that the
charge against Mr. Martinez-Osogobio under § 1182(a)(6)(A)(i) should be
sustained because his uncorroborated affidavit failed to demonstrate by clear and
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convincing evidence that he was lawfully present in the United States pursuant to
a prior admission.
Mr. Martinez-Osogobio also asserts that his due process rights were
violated by the IJ’s “unfounded bias on the issue of uncorroborated testimony,”
Pet’r Opening Br. at 18, and by the IJ’s refusal to entertain his oral testimony. He
also contends that the BIA failed to meaningfully review the IJ’s decision or
address his complaint that he was prevented from testifying. He maintains that
these deficiencies deprived him of a fundamentally fair proceeding and prejudiced
the outcome.
We have held that “[a]n alien in removal proceedings is entitled only to the
Fifth Amendment guarantee of fundamental fairness. Therefore, when facing
removal, aliens are entitled only to procedural due process, which provides the
opportunity to be heard at a meaningful time and in a meaningful manner.”
Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (citation and quotations
omitted). See also Brue v. Gonzales, 464 F.3d 1227, 1233-34 (10th Cir. 2006).
Mr. Martinez-Osogobio did not explicitly assert any violation of his
constitutional rights before the BIA. The two so-called constitutional issues he
raises here are nothing more than a recasting of his arguments to the BIA that the
IJ erroneously rejected his affidavit as uncorroborated and “erred in not taking
[his] oral testimony.” Admin. R. at 43-44. The BIA rejected these arguments
and, as we have already held, did not err. To the extent Mr. Martinez-Osogobio’s
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due process claims add anything material, over and above the objections raised to
and rejected by the BIA in nonconstitutional terms, the claims were not exhausted
and are therefore beyond our review. Vicente-Elias v. Mukasey, 532 F.3d 1086,
1094 (10th Cir. 2008) (“[O]bjections to procedural errors or defects that the BIA
could have remedied must be exhausted even if the alien later attempts to frame
them in terms of constitutional due process on judicial review.”).
Conclusion
For the reasons stated above, we conclude that the BIA did not err in
dismissing Mr. Martinez-Osogobio’s appeal. The petition for review is therefore
DENIED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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