In the
United States Court of Appeals
For the Seventh Circuit
________________________
Nos. 12‐3641, 13‐1228, 13‐1895 & 13‐2737
RAUL ANTIA‐PEREA,
Petitioner,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES
Respondent.
__________________________
On Petitions for Review of Final Orders
of the Board of Immigration Appeals.
No. A200 837 198
__________________________
ARGUED APRIL 25, 2014 — DECIDED SEPTEMBER 25, 2014
__________________________
Before KANNE and ROVNER, Circuit Judges, and DOW,
District Judge.
The Honorable Robert M. Dow, Jr., of the Northern District of Illinois,
sitting by designation.
2 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
DOW, District Judge. According to the Form I‐213 that the
Department of Homeland Security (“DHS” or “the
Government”) presented at his removal hearing, Petitioner
Raul Antia‐Perea is a native and citizen of Colombia who
was not properly admitted to the United States. Antia‐Perea
sought to subpoena the DHS agent who prepared the I‐213
but did not otherwise challenge the contents of the I‐213 or
present any evidence in his own behalf at the removal stage
of the proceedings. An immigration judge (“IJ”) denied
Antia‐Perea’s subpoena request, and, relying on the I‐213,
found him removable to Colombia. The IJ also denied Antia‐
Perea’s request for a six‐month continuance to seek a
gubernatorial pardon and found him ineligible for
cancellation of removal. The Board of Immigration Appeals
(“BIA” or “Board”) affirmed the IJ’s decision and later
denied Antia‐Perea’s motion for reconsideration. The BIA
subsequently denied Antia‐Perea’s motion to reopen, as well
as his request for reconsideration of that ruling.
Antia‐Perea now seeks relief from all four of the BIA’s
decisions in this consolidated petition for review. Antia‐
Perea contends that the IJ wrongfully denied his requests to
subpoena and cross‐examine the DHS agent who prepared
the I‐213, improperly concluded that the Government could
and did satisfy its burden of proving alienage with
documentary evidence alone, and erroneously denied his
request for a continuance to seek a pardon. Antia‐Perea
further submits that the IJ was biased against him and that
the BIA erred in denying his motion to reopen and in
denying his motion to reconsider that ruling. Because we
conclude that none of the challenged rulings by the IJ or BIA
was erroneous, we deny the consolidated petition for
review.
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 3
I.
A. Removal Proceedings. DHS initiated removal
proceedings against Antia‐Perea on August 20, 2010 by
serving him with a Notice to Appear (“NTA”). The NTA
alleged that Antia‐Perea was a citizen and native of
Colombia who had entered the United States at an unknown
place and time without being admitted or paroled by an
immigration officer. It charged him with removability under
8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United
States without being admitted or paroled. The NTA further
alleged that Antia‐Perea had been convicted of “indecent
liberties with a child,” a crime of moral turpitude, and
charged him with removability on that basis as well. See 8
U.S.C. § 1182(a)(2)(A)(i)(I).
Antia‐Perea appeared pro se before an IJ twice before he
retained counsel. The only substantive occurrence at those
hearings was that the Government filed and tendered to
Antia‐Perea “several documents in this case pertaining to
allegations in the Notice to Appear.” Those documents
included a copy of a Form I‐213, a “Record of
Deportable/Inadmissible Alien” prepared by DHS “that is
typically a record of an immigration inspector’s conversation
with an alien who will probably be subject to removal.”
Pouhova v. Holder, 726 F.3d 1007, 1013 (7th Cir. 2013). The I‐
213 stated that Antia‐Perea came into DHS custody on
August 20, 2010, and at that time “voluntarily admitted” to
DHS agent Yesenia Ochoa that he was not a citizen or
national of the United States. According to the I‐213, Antia‐
Perea was “a native and citizen of Colombia” and “ma[d]e[]
no claim to United States citizenship.” The documents
tendered to Antia‐Perea also included a Chicago Police
4 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
Department “rap sheet,” and a “newer iClear Rap Sheet.”
Both rap sheets indicated that Antia‐Perea was born in
Puerto Rico.
Antia‐Perea eventually retained counsel, who sought and
received two continuances to review the documents, make
Freedom of Information Act requests, and generally get up
to speed with the case. The matter was reassigned to a
different IJ, and Antia‐Perea and counsel appeared before
the new IJ on May 24, 2011. On the advice of counsel, Antia‐
Perea declined to admit or deny the NTA’s allegations
against him. Antia‐Perea further declined to designate
Colombia as the country of removal. He requested that the
Government be put to its burden of proving his alienage and
removability. Antia‐Perea also asked that “the Government
be put to its burden of proving removability before we get to
the relief stage.” The IJ granted these requests and scheduled
the matter for a contested hearing on the issue of
removability. However, the IJ denied Antia‐Perea’s request
“for subpoenas for the makers of any and all Government
documents that are coming in.” The IJ advised Antia‐Perea
that this request was “too broad” and told him that he
would “have to identify what it is that you’re seeking and
specify the nature of the request.” The IJ directed the
Government to serve counsel with the documents it planned
to use no later than 15 days before the contested hearing,
which was set for June 28, 2011. The IJ also directed the
Government to have all of its witnesses available for the
hearing so that the case could proceed in an orderly fashion.
At the contested hearing, the Government called Antia‐
Perea as its sole witness. Antia‐Perea refused to answer any
of the Government’s questions. In light of Antia‐Perea’s
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 5
silence, the Government requested that the IJ make a finding
of removability on the documentary evidence it had
submitted: the I‐213, the rap sheets, and a few other
documents pertaining to Antia‐Perea’s convictions. The
Government argued that the I‐213 “establishes that he did
advise an Immigration Officer that he’s a native and citizen
of Colombia.” The Government did not call to the IJ’s
attention the discrepancy between the I‐213, which reported
Colombia as Antia‐Perea’s birthplace, and the rap sheets,
which identified Puerto Rico as Antia‐Perea’s birthplace.
Neither did Antia‐Perea or his counsel.
Instead, Antia‐Perea’s counsel advised the IJ that Antia‐
Perea refused to testify as to the authenticity or the accuracy
of the I‐213 and reiterated his request to subpoena the
preparer of that and the Government’s other documents. The
IJ again denied the request as overly broad. The IJ also
denied Antia‐Perea’s request to cross‐examine the preparer
of the I‐213, rejecting Antia‐Perea’s contention that he had a
right to do so under Malave v. Holder, 610 F.3d 483 (7th Cir.
2010), and 8 U.S.C. § 1229a(b)(4)(B). The IJ further rejected
Antia‐Perea’s challenge to the Government’s failure to
produce any witnesses aside from Antia‐Perea himself. The
IJ explained that the Government “does not have to present
any witness to establish removability. They could do it
solely from documentary evidence.” The IJ gave Antia‐Perea
an opportunity to “challeng[e] the documentary evidence,
through testimony or affidavits or something else” on
rebuttal, but Antia‐Perea declined. He expressly stated that
he objected to the use of the I‐213 solely on the ground that
“we’re not being permitted to cross‐examine the maker of
this document.”
6 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
Ultimately, the IJ concluded that the I‐213 was a reliable
document that “clearly establishe[d] the respondent’s
alienage” and that Antia‐Perea failed to show that “the time,
manner, and place of his entry” were such that his presence
in the United States was authorized. The IJ therefore found
that Antia‐Perea was removable under § 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(6)(A)(i). At the same time, the IJ concluded that the
Government’s evidence was insufficient to establish
removability on the NTA’s second charge. The IJ did not
address the fact that the rap sheets listed Puerto Rico as
Antia‐Perea’s birthplace. Neither did counsel for either side.
Antia‐Perea’s counsel did request a continuance to file
various requests for relief from removability and an
application for cancellation of removal. The IJ granted this
request over the Government’s objection to allow Antia‐
Perea to “file any applications that you want me to consider
in your case.” The IJ set the matter for a hearing on
September 13, 2011.
At the September 13 hearing, Antia‐Perea submitted an
application for cancellation of removal, on which he left
unanswered the questions about his birthplace, nationality,
current citizenship, and his entry into the United States.
Counsel indicated that Antia‐Perea “would refer to the
record that was submitted previously by the Government.”
Counsel also informed the IJ that Antia‐Perea’s son, then a
student at John Marshall Law School, was preparing
documentation “seeking a pardon of the things that would
bar, perhaps statutorily, Mr. Antia from receiving
cancellation.” Counsel asked the IJ for a six‐month
continuance “for us to try to obtain a pardon from the
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 7
governor, expressing to the governor the need for urgency
here.”
Antia‐Perea “respectfully refus[ed]” to answer the IJ’s
questions about his application for cancellation of removal.
Counsel told the IJ that he believed that Antia‐Perea could
establish a prima facie case for relief without testifying. The
IJ disagreed. The IJ addressed Antia‐Perea directly and told
him that his application for cancellation of removal was
inadequate in its present state. The IJ also advised Antia‐
Perea that he as the applicant for cancellation of removal
bore the burden of showing an entitlement to relief. The IJ
gave Antia‐Perea a one‐week continuance to discuss the
matter with counsel. “Then you can come back to court next
week with a completed application, and you have to be
prepared to testify in support of your application next week.
If you choose not to testify, then I’ll make a decision whether
your application can be granted or not.” The IJ denied Antia‐
Perea’s requested continuance to allow for the processing of
the pardon application, however, reasoning that the grant of
a pardon was “too speculative” to warrant a continuation of
the already protracted proceedings.
At the continued hearing a week later, counsel presented
the IJ with several documents in support of Antia‐Perea’s
application for cancellation of removal, including his wife’s
naturalization papers, tourist cards issued by the Colombian
consulate listing Puerto Rico as Antia‐Perea’s place of birth,
and birth certificates of Antia‐Perea’s adult children that said
the same. Antia‐Perea did not testify, nor did he seek any
other type of relief, such as voluntary departure.
The IJ issued a written decision on September 26, 2011.
The IJ found that the Government had carried its burden of
8 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
proving Antia‐Perea removable by clear and convincing
evidence by way of the I‐213. The IJ cited Seventh Circuit
case law for the proposition that the I‐213 is “presumptively
reliable” such that it is admissible as evidence of the truth of
its contents barring any countervailing evidence of
inaccuracy or duress. The IJ also explained that he denied
Antia‐Perea’s subpoena request for lack of good cause
“because he did not present any evidence undermining the
accuracy of the document or the methods by which it was
obtained.” The IJ rejected Antia‐Perea’s reliance on Malave
and concluded that without some evidence impugning the I‐
213, “it is not apparent what information the respondent
would elicit through cross‐examination of its author.” He
ruled that “[t]he regulations governing subpoenas require at
least that much,” and cited in support 8 C.F.R. §
1003.35(b)(2), which by its terms requires a party applying
for a subpoena “to state in writing or at the proceeding,
what he or she expects to prove by such witnesses or
documentary evidence, and to show affirmatively that he or
she has made diligent effort, without success, to produce the
same.”
The IJ also formally denied Antia‐Perea’s request for
cancellation of removal. The IJ found that, in light of the rap
sheets, which Antia‐Perea conceded were applicable to him,
“there is at least a ‘reasonable indicat[ion]’ that the
respondent is barred from cancellation of removal by section
240A(b)(1)(C),” 8 U.S.C. § 1229b(b)(1)(C). The IJ further
noted that Antia‐Perea had sought a continuance to seek a
pardon but that he had denied the request because he did
not want to “delay proceedings and finds the respondent’s
request too speculative.”
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 9
B. Appeal to the BIA. Antia‐Perea timely appealed the
IJ’s decision to the BIA. He contended that the IJ erred in (1)
admitting the Form I‐213 into evidence; (2) denying his
request to cross‐examine the maker of the Form I‐213; (3)
ruling that the Government had established alienage; (4)
ordering him deported; and (5) denying his request for a
continuance to seek a gubernatorial pardon. Antia‐Perea also
asserted that the IJ was biased in favor of the Government
and against him, and denied him his right to due process.
The BIA dismissed the appeal after reviewing the IJ’s
findings of fact for clear error and all other issues de novo.
Especially pertinent here, the BIA agreed with the IJ that
DHS met its burden of establishing alienage and
removability based on the Form I‐213. The BIA found that
“[t]here is nothing facially suspect about the Form I‐213,”
and that absent some evidence or even allegations that an I‐
213 is inaccurate, it may be considered inherently reliable
and can be sufficient to establish alienage. Notwithstanding
Antia‐Perea’s failure to raise the issue before the IJ, the BIA
acknowledged that the rap sheets in the record indicated
that Antia‐Perea was born in Puerto Rico. It accorded these
documents little weight, however, reasoning that
“[i]nformation such as place of birth for such documents is
typically provided by the individual to whom they pertain,
rather than an independent or verified source.” The BIA also
agreed with the IJ that “[w]hether and when the respondent
may be granted pardon is too speculative to provide good
cause for a continuance.” Additionally, the BIA found that
Antia‐Perea “has not shown he was prejudiced by the denial
of a continuance” to seek a pardon, because “[t]he finding of
removability was not based on his convictions, and the lack
of a disqualifying conviction is only one of several statutory
10 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
factors for cancellation of removal that the respondent did
not demonstrate.” The BIA rejected Antia‐Perea’s assertions
of bias out of hand for failure to cite specific examples of
impropriety.
C. First Motion for Reconsideration. Antia‐Perea timely
petitioned this Court for review of the BIA’s decision (No.
12‐3641). While his petition was pending, he filed a motion
asking the BIA to reconsider its decision. He essentially
reiterated the contentions that he made on initial review and
asserted that the BIA erred in rejecting his requests for relief.
The BIA denied Antia‐Perea’s motion to reconsider
without engaging in new analysis. Antia‐Perea timely filed a
petition for review of this decision (No. 13‐1228).
D. Motion to Reopen. In January 2013, Antia‐Perea filed
a motion requesting that the BIA reopen his proceedings
pursuant to 8 C.F.R. § 1003.2(c)(1) and remand them to a
different IJ. His motion presented virtually all of the
arguments that the BIA previously rejected. In the final
paragraphs of his motion, he raised for the first time an
alleged fear of deportation to Colombia and sought a
hearing “on his request for political asylum, withholding of
removal, and/or protection under the United Nations
Convention Against Torture.” In support of this request for
relief, he cited a 60 Minutes report on the “Super Cartel” in
Colombia and submitted affidavit testimony that he feared
“for [his] life if [he is] deported to Colombia because the
Super Cartel may want to retaliate against [him] if they were
to find out [his] daughter is an [Immigration and Customs
Enforcement] ICE agent.” Antia‐Perea later supplemented
this motion with a transcript of the segment on the Super
Cartel.
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 11
The BIA denied Antia‐Perea’s motion to reopen on April
12, 2013. It noted that “[m]ost of the issues raised in the
respondent’s motion to reopen were adequately addressed
in our October 22, 2012, decision or were addressed in our
January 18, 2013, decision.” Accordingly, the BIA
substantively addressed only Antia‐Perea’s requests for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). It did so briefly,
concluding that Antia‐Perea failed to “show prima facie
eligibility for asylum and withholding of removal” because
he failed to show that “the Super Cartel would likely become
aware upon his return to Colombia (or after) that his
daughter is an ICE agent.” Because his CAT claim was based
on the same evidence, the BIA summarily denied that claim
as well. Antia‐Perea petitioned for review of the BIA’s
decision (No. 13‐1895).
E. Second Motion for Reconsideration. On May 9, 2013,
Antia‐Perea filed with the BIA a motion to reconsider its
denial of his motion requesting relief from removal. He
argued that “the evidence he provided the BIA was
sufficient to demonstrate that his fear of persecution is both
subjectively genuine and grounded in an objectively
reasonable basis.” He also claimed that the BIA’s failure to
grant him a hearing infringed his due process rights and
“that to remove him to Colombia would be violative of the
International obligations of the United States.” Antia‐Perea
added for the BIA’s consideration two news articles about
ICE agents and informants getting killed by Mexican drug
cartels in East El Paso, Texas.
The BIA denied Antia‐Perea’s motion, which it treated as
a motion to reopen in light of the newly appended articles. It
12 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
concluded that there was “little commonality” between
Antia‐Perea’s fear and the fear expressed by one of the
subjects in the 60 Minutes segment. The BIA considered
Antia‐Perea’s two news articles and concluded that he was
“not similarly situated to ICE agents, Texas Rangers, or
informants for ICE.” Antia‐Perea filed a fourth petition
seeking review of this decision (No. 13‐2737).
II.
There is no dispute that all four of Antia‐Perea’s petitions
for review concern final decisions, were timely submitted,
and are properly before this Court. See El‐Gazawy v. Holder,
690 F.3d 852, 857 (7th Cir. 2012). Our jurisdiction to review
the petitions, which assert legal and constitutional claims, is
secure. See 8 U.S.C. § 1252(a)(2)(D). Accordingly, we address
in turn the arguments that Antia‐Perea has properly
presented and preserved throughout the administrative
process.
A.
Antia‐Perea first contends that the IJ and BIA violated his
due process rights by denying him an opportunity to cross‐
examine the DHS agent who drafted the I‐213.
Aliens in removal proceedings are entitled to due process
of law under the Fifth Amendment. Reno v. Flores, 507 U.S.
292, 306 (1993). Statutory provisions also impose procedural
requirements on removal proceedings. See 8 U.S.C. §
1229a(b)(4). Any proceeding that meets the requirements of
the statute also satisfies the requirements of constitutional
due process. Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir.
2006). Because Antia‐Perea does not challenge the
constitutional adequacy of the statutory rights, we focus our
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 13
analysis on those statutory rights. See Portillo‐Rendon v.
Holder, 662 F.3d 815, 817 (7th Cir. 2011); Malave v. Holder, 610
F.3d 483, 487 (7th Cir. 2010)
Section 1229a(b)(4)(B) provides that an alien in removal
proceedings “shall have a reasonable opportunity to
examine the evidence against the alien, to present evidence
on the alienʹs own behalf, and to cross‐examine witnesses
presented by the Government.” An alien who challenges a
removal order by claiming a violation of these rights must
show both that the proceeding did not meet these
requirements and that he was prejudiced as a result.
Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007).
The Government must demonstrate removability by clear
and convincing evidence. 8 U.S.C. § 1229a(c)(3). The Federal
Rules of Evidence do not apply in immigration proceedings.
Doumbia v. Gonzales, 472 F.3d 957, 962 (7th Cir. 2007).
Evidence is admissible “so long as it is probative and its
admission is fundamentally fair.” Barradas v Holder, 582 F.3d
754, 762 (7th Cir. 2009). The fairness of an evidentiary
submission depends in part on its reliability. Duad v. United
States, 556 F.3d 592, 596 (7th Cir. 2009).
As Antia‐Perea concedes, it is well established that the I‐
213 is a presumptively reliable and admissible document.
Indeed, “[a]s a general rule, a Form I‐213 is treated as
inherently trustworthy and admissible even without the
testimony of the officer who prepared it.” Pouhova v. Holder, 726
F.3d 1007, 1013 (7th Cir. 2013) (emphasis added); see also
Gutierrez‐Berdin v. Holder, 618 F.3d 647, 653 (7th Cir. 2010)
(“Form I‐213 is a presumptively reliable administrative
document.”). This is because when the information sought to
be admitted was “recorded by a[ ] [DHS] agent in a public
14 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
record,” the absent agent “cannot be presumed to be an
unfriendly witness or other than an accurate recorder.”
Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009) (quoting
Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.1995)). Accordingly,
we have held that an I‐213 is reliable unless there is some
indication that the information it contains is manifestly
incorrect or was obtained by duress. Id.
Antia‐Perea did not introduce any evidence or make any
argument challenging the contents, creation, or reliability of
the I‐213 at the removal stage of his proceedings. He
nonetheless contends that his case is closely analogous to
Pouhova v. Holder, 726 F.3d 1007 (7th Cir. 2013), in which we
held that an alien improperly was denied the opportunity to
cross‐examine the drafter of an I‐213 notwithstanding the
general rule to the contrary. We respectfully disagree. In
Pouhova, the Government attempted to prove that the
petitioner assisted an alien who was trying to enter the
United States illegally by submitting a transcript of an
agent’s interview with the alleged smuglee—not the
petitioner—and an I‐213 that was prepared seven years later
purportedly documenting that conversation. Pouhova
challenged the admission of the transcript and the I‐213,
arguing that she was prejudiced without the opportunity to
cross‐examine the interviewee. We held that the I‐213
“exhibit[ed] several shortcomings that undermine the usual
presumption of reliability, none of which were addressed by
the Board,” including the seven‐year lapse of time between
the interview and the Form’s creation, its significant
divergence from [the interviewee’s] statement, its reliance on
untranslated testimony, and the fact that it “recorded a
conversation not with Pouhova, who was the subject of the
form and the removal proceedings, but with [another
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 15
individual].” Id. at 1014; see also id. at 1015 (“This I‐213
therefore was not inherently reliable because it was recorded
seven years late, its critical information was obtained from
someone other than the subject of the form, and it
contradicts the other written account of its source.”). We
expressly noted that “[i]n a more typical case, the subject
herself will have some basis to contest the statements in the
document. She will have been present for the conversation
that is reported.” Id.
This case is distinguishable from Pouhova in two
significant respects. First, there is no indication that the I‐213
was prepared years after the fact like the one in Pouhova. To
the contrary, it was prepared on the same day that Agent
Ochoa interviewed Antia‐Perea. Second, and more
importantly, Antia‐Perea was present for the interview
recorded in the I‐213 and accordingly could have challenged
its contents or creation himself. Pouhova does not hold that
an alleged alien always must be given an opportunity to
examine the maker of an I‐213; Pouhova instead holds that it
is fundamentally unfair for an IJ to admit and rely upon a
belatedly prepared I‐213 documenting an interview with
someone other than the respondent without giving the
respondent an opportunity to cross‐examine the interviewee
or the DHS agent who conducted the interview. Here, Antia‐
Perea—who was the interviewee—could have chosen to tell
his side of the story or otherwise called into question the
circumstances surrounding the I‐213’s creation. He declined
every opportunity to do so, and the IJ did not err by drawing
adverse inferences from Antia‐Perea’s silence. See Gutierrez‐
Berdin v. Holder, 618 F.3d 647, 656 (7th Cir. 2010); Flores‐Leon
v. INS, 272 F.3d 433, 440 (7th Cir. 2001).
16 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
Antia‐Perea also relies heavily on Malave v. Holder, 610
F.3d 483 (7th Cir. 2010), for the proposition that he “is
entitled to cross‐examine witnesses of the government,
whether the evidence comes in orally or in writing.” But
Malave, like Pouhova, is distinguishable. In Malave, we held
that an alien’s right to due process at her removal hearing
was violated when she did not have the opportunity to
cross‐examine her estranged husband, whose statement the
Government relied upon to prove a sham marriage. Like the
statement in Pouhova, however, the statement in Malave was
made by someone other than the respondent. While it is true
that DHS cannot nullify aliens’ right to cross‐examination by
presenting written declarations rather than live testimony,
Malave, 610 F.3d at 487, the individual whose statements
were recorded in the I‐213 was Antia‐Perea himself. And
Antia‐Perea elected not to challenge the contents of the I‐213
or the circumstances surrounding its creation. He also
elected not to reiterate his request for a subpoena, or
conform it to the specifications of 8 C.F.R. § 1003.35(b)(2).
Antia‐Perea received all of the process to which he was
entitled with respect to the I‐213.
B.
Antia‐Perea next argues that the rap sheets and the
documents that he submitted at the relief stage of his
proceedings—the incomplete application for cancellation of
removal, the travel card, his wife’s naturalization papers,
and his children’s birth certificates—undermined the
inherent reliability of the I‐213 and rendered it insufficient to
establish that he was an alien. The IJ considered only the I‐
213 and found it sufficient to establish Antia‐Perea’s
alienage. In reviewing the IJ’s decision, the BIA also took
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 17
into account the rap sheets and documents that Antia‐Perea
submitted in support of his application for cancellation of
removal. The BIA nonetheless concluded that “the totality of
the evidence” was sufficient to establish Antia‐Perea’s
alienage. Antia‐Perea contends that the IJ and BIA erred as a
matter of law.
“When the Board agrees with the decision of the
immigration judge, adopts that decision and supplements
that decision with its own reasoning, as it did here, we
review the immigration judge’s decision as supplemented by
the Board.” Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013)
(en banc). We review findings of fact for substantial
evidence and reverse only if the evidence compels a
different result. Young Dong Kim v. Holder, 737 F.3d 1181,
1184 (7th Cir. 2013). “We review questions of law de novo,
deferring to the Board’s reasonable interpretation set forth in
precedential opinions interpreting the statute.” Id.
We cannot conclude that the IJ or BIA erred under any
standard. “In the case of a respondent charged as being in
the United States without being admitted or paroled, the
[Government] must first establish the alienage of the
respondent.” 8 C.F.R. § 1240.8(c); see also Mozdzen v. Holder,
622 F.3d 680, 683 (7th Cir. 2010); Gutierrez‐Berdin, 618 F.3d at
657. Once the Government makes that showing, the burden
shifts to the respondent to prove that he is lawfully present
in the United States pursuant to a prior admission. 8 C.F.R. §
1240.8; Mozdzen, 622 F.3d at 683. Here, during the removal
stage of the proceedings, which were bifurcated at Antia‐
Perea’s request, the Government came forward with an I‐213
stating that Antia‐Perea had “voluntarily admitted that he is
not a citizen of the United States” and that he was “a native
18 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
and citizen of Colombia.” Antia‐Perea declined to raise any
challenge to the contents or creation of the I‐213. He likewise
neglected to point out the discrepancies between the rap
sheets and the I‐213 or proffer the documents that he later
submitted during the relief stage of the proceedings.
Accordingly, the IJ had no reason not to afford the I‐213 the
standard presumption of reliability. Nor did the IJ have a
basis to deviate from our precedent, which holds that a
“sparse” record consisting of an NTA and I‐213 can be
sufficient to establish alienage where the alien remains silent
and fails to dispute the Government’s evidence. See
Gutierrez‐Berdin, 618 F.3d at 656–57. The IJ properly
concluded that the burden of proof shifted to Antia‐Perea,
and there is no question that he failed to carry it.
The BIA’s supplemental (and apparently sua sponte, as
Antia‐Perea did not argue that the rap sheets or his
documents undermined the I‐213) consideration of the rap
sheets and the submissions that Antia‐Perea made at the
relief stage led it to the same conclusion that the IJ reached.
The BIA weighed Antia‐Perea’s silence and selectively
incomplete application for cancellation of removal against
the documents indicating that he was a citizen of Puerto
Rico and found the former more persuasive than the latter.
We find no error in this assessment. Immigration courts are
permitted to draw adverse inferences from a person’s refusal
to answer questions about his origin during a hearing,
Gutierrez‐Berdin, 618 F.3d at 656, and Antia‐Perea has not
demonstrated that such inferences were unwarranted here.
C.
Antia‐Perea next contends that the IJ violated his due
process rights by denying his request for continuance to
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 19
allow him to seek a gubernatorial pardon. He asserts that the
Board erred when it agreed that pursuit of a pardon was too
speculative to provide good cause for a continuance, because
8 U.S.C. § 1227(a)(2)(A)(vi) expressly provides that an alien
may not be adjudicated removable on the basis of a criminal
conviction if he receives a full and unconditional pardon for
the offense. Not only do these contentions miss the mark
because Antia‐Perea was not found removable based on his
convictions, they do not establish a due process violation.
To establish a due process violation, Antia‐Perea must
demonstrate that he had a protected liberty or property
interest in seeking the continuance. Adame v. Holder, ‐‐‐ F.3d
‐‐‐, 2014 WL 3909115, at *2 (7th Cir. Aug. 12, 2014) (citing
Brock v. Roadway Express, Inc., 481 U.S. 252, 260 (1987)). He
cannot do so. “While a noncitizen has a protected liberty
interest in remaining in the United States, that interest does
not encompass a right to favorable decisions that would
allow the petitioner to seek discretionary relief.” Id.; see also
Darif v. Holder, 739 F.3d 329, 336 (7th Cir. 2014) (holding that
the right to due process “does not extend to discretionary
forms of relief from removal” and that “the opportunity for
discretionary relief from removal is not a protected liberty
interest because aliens do not have a legitimate claim of
entitlement to it”). A gubernatorial pardon is a
quintessential form of discretionary relief. “There is no
Fourteenth Amendment property or liberty interest in
obtaining a pardon in Illinois—no substantive entitlement,
in other words—and so no ground for a claim of denial of
due process.” Bowens v. Quinn, 561 F.3d 671, 673 (7th Cir.
2009). Accordingly, neither the Board nor the IJ violated
Antia‐Perea’s due process rights by denying the
continuance.
20 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
D.
Antia‐Perea next contends that the BIA erred in denying
his motion to reopen because it “lump[ed] together in one
broad brush each of Petitioner’s claims for asylum,
withholding of removal, and protection under CAT” rather
giving each its due consideration. We will uphold the BIA’s
denial of a motion to reopen “unless it was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as
invidious discrimination against a particular race or group.”
Munoz‐Avila v. Holder, 716 F.3d 976, 982 (7th Cir. 2013).
Generally, the Board may deny an applicant’s motion to
reopen if the applicant fails to establish a prima facie case of
eligibility for the underlying relief sought. Kay v. Ashcroft,
387 F.3d 664, 674 (7th Cir. 2004). That is the basis on which
the BIA denied Antia‐Perea’s motion. Antia‐Perea contends
that the Board’s analysis was flawed, however, because it
did not separately parse his requests for asylum,
withholding of removal, and protection under the CAT.
Although we have recognized that it may be “problematic”
for the Board to analyze distinct claims for relief in a single
stroke, we have nonetheless denied petitions for relief
predicated on this “error” when we are able to discern the
BIA’s reasoning for its decision as to each claim. See Munoz‐
Avila v. Holder, 716 F.3d 976, 982 (7th Cir. 2013). We likewise
have recognized that there is significant overlap among
claims for asylum, withholding of removal, and relief under
the CAT such that an unsuccessful asylum claim may doom
related claims for withholding of removal or protection
under the CAT, as those types of relief have “more
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 21
stringent” requirements. See Hassan v. Holder, 571 F.3d 631,
644 (7th Cir. 2009).
The Board’s analysis in this regard was less than stellar.
Although it demonstrated that it had considered Antia‐
Perea’s evidentiary submissions, the Board neglected to set
forth the standards against which those submissions were
measured for each form of relief. Nonetheless, it is clear from
the Board’s discussion that it denied Antia‐Perea’s requests
for asylum and withholding of removal because it concluded
that the harm Antia‐Perea feared was too speculative to
merit relief. This is a valid and rational basis on which to
deny both types of claim. Asylum applicants who have not
been persecuted in the past may demonstrate eligibility for
relief only by showing a fear of future persecution “that is
subjectively genuine and objectively reasonable.” Georgieva
v. Holder, 751 F.3d 514, 522 (7th Cir. 2014). The objective
component requires the applicant to prove either a
reasonable probability that he will be singled out for
persecution or a pattern or practice against a particular
group to which he belongs. Id. at 522–23. Similarly, an
applicant seeking withholding of removal must demonstrate
a “clear probability” of harm by showing that it is “more
likely than not” that he will suffer persecution if removed.
Hassan, 571 F.3d at 644. This “clear probability” requirement
is “more stringent” than the requirements for asylum
eligibility. Id. Thus, the Board’s conclusion that Antia‐Perea’s
evidence did not demonstrate that the Super Cartel was
likely to become aware of his daughter’s employment with
ICE necessarily undermined both of these claims.
As we have recognized in Hassan and elsewhere, the
burden of proof for CAT protection is more stringent still
22 Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737
than that for asylum or withholding of removal, as the
applicant must show that it is “more likely than not that he
or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2); Hassan, 571 F.3d
at 644. Here, the Board rationally, albeit summarily,
concluded that Antia‐Perea’s evidence—which,
notwithstanding his current contentions was the same for all
three types of relief—could not support a likelihood of
torture if it was too speculative to demonstrate persecution.
See Bathula v. Holder, 723 F.3d 889, 903 (7th Cir. 2013). The
harsh definition of “torture,” see 8 C.F.R. § 208.18, “sets a
high bar for relief,” Sarhan v. Holder, 658 F.3d 649, 653 (7th
Cir. 2011), and the Board did not abuse its discretion in
concluding that Antia‐Perea could not clear it with his
evidence concerning the Super Cartel.
E.
Antia‐Perea finally contends that his due process rights
were violated because the IJ was not fair and impartial. The
BIA rejected this argument during Antia‐Perea’s first appeal
because he failed to offer any evidence of bias aside from the
adverse rulings against him, and declined to revisit its
decision on reconsideration. We find no error in these
rulings.
The Fifth Amendment’s due process clause guarantees
the right to an impartial decisionmaker, Firishchak v. Holder,
636 F.3d 305, 309 (7th Cir. 2011), but “judicial rulings alone
almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). And
judicial rulings are all that Antia‐Perea is able to point to; he
contends that the IJ erred in denying his subpoena request,
in finding the I‐213 reliable, and in denying his request for
Nos. 12‐3641, 13‐1228, 13‐1895, 13‐2737 23
continuance. Antia‐Perea has not demonstrated how the IJ’s
procedurally and legally correct rulings evince bias. The
Board did not err in rejecting Antia‐Perea’s underdeveloped
assertions of bias in the first instance or abuse its discretion
in denying his motion to reconsider. See Muratoski v. Holder,
622 F.3d 824, 830 (7th Cir. 2010).
III.
For all of the reasons stated above, Antia‐Perea has not
demonstrated that the IJ or the Board legally erred or denied
him due process. Accordingly, his consolidated petition for
review is DENIED.