United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 9, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60261
(Summary Calendar)
_____________________
SHEHERYAR SEWANI,
Petitioner,
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL,
Respondent,
__________________________________________
Petition for Review from the
Board of Immigration Appeals,
No. A79 005 391
__________________________________________
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Petitioner appeals the decision of the Board of Immigration
Appeals’ affirmance of the Immigration Judge’s order of removal.
We AFFIRM.
I
Petitioner is twenty-one years old and a citizen of
Pakistan. He was admitted to the United States in 1990 on a six-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1
month visa. Without seeking authorization from the Immigration
and Naturalization Service (“INS”), now the Department of
Homeland Security (“DHS”), Petitioner remained in the United
States for more than the six-month period. After voluntarily
appearing at the DHS office in Houston in March 2003 pursuant to
the “special registration” that was mandated by the National
Security Entry/Exit Registration Statute (“NSEERS”), the
government determined that Petitioner’s lawful immigration status
had ended. It issued Petitioner a Notice to Appear, charging him
as removable pursuant to section 237(a)(1)(B) of the Immigration
and Nationality Act (“INA”), as a nonimmigrant remaining in the
United States for longer than permitted. Petitioner’s hearing
was set for July 28, 2003.
After allowing a continuance of Petitioner’s case to
November 13, 2003, the Immigration Judge (“IJ”) found that there
was no relief available. The IJ therefore ordered Petitioner to
be removed from the United States to Pakistan. Petitioner
appealed to the Board of Immigration Appeals (“BIA”), which
adopted and affirmed the decision of the IJ. Petitioner now
appeals the decision of the BIA.
II
Petitioner makes four arguments: (1) that the NSEERS had a
discriminatory and disparate impact on him in violation of his
due process rights under the Fifth Amendment; (2) that the DHS
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did not follow its own policies and procedures in issuing
Petitioner’s Notice to Appear; (3) that he was denied “his
fundamental right to present a defense” because the DHS did not
respond to his Freedom of Information Act (“FOIA”) request; and
(4) that the IJ abused his discretion in admitting evidence from
the government allegedly obtained in violation of his due process
rights.
We review questions of law de novo and review factual
conclusions of the BIA for substantial evidence. Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). As the
Immigration and Naturalization Act (“INA”) states, in pertinent
part, “the court of appeals shall decide [a] petition only on the
administrative record on which the order of removal is based.” 8
U.S.C. § 1252(b)(4)(A). Also, we accord broad deference to the
BIA’s interpretations of the statutes and regulations that it
administers. Carbajal-Gonzalez, 78 F.3d at 197 (citing Chevron
USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).
First, Petitioner argues that NSEERS was unconstitutional
“as applied to him,” because he is not “the kind of person
Congress intended to reach with the enactment of the NSEERS.”
Congress’s distinguishing among nationalities for purposes of
setting immigration policy is not constitutionally problematic.
We have previously stated that
[t]he core of Congress’s power over immigration is the
ability to set the requirements an alien must meet to
qualify for admission to, or continued residence in, the
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Untied States or for naturalization as a United States
citizen. Due process does not require Congress to grant
aliens from all nations with the same chances for admission
to or remaining with the United States. Congress may
permissibly set immigration criteria that are sensitive to
an alien’s nationality or place of origin. It is not for
this Court to question Congress’s decisions on such matters.
Rodriguez-Silva v. INS, 242 F.3d 243, 248 (5th Cir. 2001).
It is uncontested that Petitioner was born in, and is therefore a
citizen of, Pakistan. Congress plainly gave notice in the
Federal Register that citizens of Pakistan, including Petitioner,
were required to appear before and register with the former INS.
See Registration of Certain Nonimmigrant Aliens from Designated
Countries, 67 Fed. Reg. 77642 (Dec. 18, 2002); Registration of
Certain Nonimmigrant Aliens from Designated Countries, 68 Fed.
Reg. 8046 (Feb. 19, 2003).
Second, we agree with the BIA that Petitioner’s argument
that the charging document was not properly issued is unavailing.
Petitioner complains that the Notice to Appear was signed by a
person he claims was not authorized to do so, and that the INS,
which initiated the Notice to Appear, no longer existed at the
time of its issuance. We address these claims in turn.
Petitioner’s Notice to Appear was signed by the Interim
District Director, who Petitioner claims was unauthorized since
“Interim District Director” is not listed in 8 C.F.R. § 239.1,1
1
This section reads:
(A) Issuance of notice to appear. Any immigration officer,
or supervisor thereof, performing an inspection of an
4
which regulates who may issue a Notice to Appear. We find that
the title “Interim District Director” is self-explanatory: the
Interim District Director is acting in the capacity of the
District Director for a temporary period until the position is
permanently filled. Thus, acting in the capacity of the District
Director, the Interim District Director was authorized to issue
Petitioner’s Notice to Appear pursuant to 8 C.F.R. § 239.1.
In addition, Petitioner’s complaint that the INS which
initiated the Notice to Appear subsequently ceased to exist is
unavailing. In March 2003, the functions of the INS were
transferred to the DHS. See Authority of the Secretary of
Homeland Security; Delegations of Authority; Immigration Laws, 68
Fed. Reg. 10922 (Mar. 6, 2003). Thus, the DHS assumed the INS’s
role with regard to charging Petitioner with removability.
With regard to Petitioner’s third argument, the
administrative record provides no evidence that Petitioner made a
request of the DHS under FOIA. Even if he had, Petitioner is
unclear as to what information he expected to receive from the
FOIA request. He states, “Such information requested by
[p]etitioner could have been particularly crucial to
arriving alien at a port-of-entry may issue a notice to
appear to such alien. In addition, the following officers,
or officers acting in such capacity, may issue a notice to
appear:
(1) District directors (except foreign) . . . .
8 C.F.R. § 239.1 (emphasis added).
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[p]etitioner’s defense or needed for defense strategy” (emphasis
added). “Proof of a denial of due process in an administrative
proceeding requires a showing of substantial prejudice.” Ka Fung
Chan v. INS, 634 F.2d 248, 258 (5th Cir. 1981). Petitioner fails
to show any prejudice from his unsatisfied FOIA request.
Finally, Petitioner argues that the IJ abused his discretion
by allowing into evidence Form I-213 (Record of
Deportable/Inadmissible Alien), which records the information
Petitioner offered at his NSEERS interview at the DHS office in
Houston. Petitioner complains that the contents of the I-213
were obtained in a manner “fundamentally unfair to him,” in that
“he was not properly advised of his rights to have counsel, or
advised that any information he gave could and would likely be
used against him in any future immigration proceeding.” As we
have previously held, “Miranda warnings are not required in the
deportation context, for deportation proceedings are civil, not
criminal in nature, and the Sixth Amendment safeguards are not
applicable.” Bustos-Torres v. INS, 898 F.2d 1053, 1056 (5th Cir.
1990)(citing Trias-Hernandez v. INS, 528 F.2d 366, 368 (5th Cir.
1975)). Likewise, the Fifth Amendment is inapplicable to
Petitioner’s case. While it is true that “deportation hearings
must conform to due process standards [and] an alien’s
involuntary statements cannot be used against him in a
deportation hearing,” id. at 1057, Petitioner has failed to show
the requisite “coercion, duress, or improper action on the part
6
of the immigration officer,” id. (internal quotation marks
omitted), to evidence involuntariness. We find that the IJ did
not abuse his discretion in admitting this form into evidence.
Thus, we AFFIRM the order of the BIA affirming the decision
of the IJ issuing removal of the Petitioner to Pakistan.
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