IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 26, 2009
No. 07-60203 Charles R. Fulbruge III
Clerk
JOSE ALEXANDER GONZALEZ-REYES
Petitioner
v.
ERIC H. HOLDER, U.S. Attorney-General
Respondent
Petition for Review of an Order of the Board of Immigration Appeals
A97 540 166
Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:*
Jose Alexander Gonzalez-Reyes seeks relief from the Board of Immigration
Appeals’ (BIA) affirming the Immigration Judge’s (IJ) order of removal.
Primarily at issue is the IJ’s relying on admissions by Gonzalez, an
unaccompanied minor, in his post-apprehension interview by an immigration
officer. DENIED.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 07-60203
I.
At age 14, Gonzalez was one of 13 aliens apprehended on 9 October 2003
as a result of an immigration inspection in El Cenizo, Texas. Gonzalez was
transferred to a patrol station, where he was interviewed by an immigration
officer, and later released to his mother, as discussed infra. Based on the
interview, a form I-213, Record of a Deportable/Inadmissible Alien, was
prepared.
An I-213 is an official record routinely prepared by immigration officers.
It contains a summary of information obtained at the initial processing of an
individual suspected of being an alien unlawfully present in the United States.
The record includes, inter alia, the individual’s name, address, immigration
status, the circumstances of the individual’s apprehension, and any substantive
comments the individual may have made. See, e.g., Bauge v. INS, 7 F.3d 1540,
1543 n.2 (5th Cir. 1993).
That same day, 9 October 2003, Gonzalez was served, through his mother,
with a Notice to Appear. The notice charged him with removability under INA
§ 212(a)(6)(A)(i), on the grounds that he was not a United States citizen, was a
citizen of El Salvador, and had entered the United States without having been
admitted or paroled after inspection by an immigration officer.
At a removal hearing on 19 February 2004, at which he was represented
by counsel, Gonzalez denied all of the charges and sought to suppress
introduction in evidence of the form I-213. As discussed, the I-213 contained
information obtained by the immigration officer who interviewed Gonzalez after
he had been apprehended. Gonzalez told the interviewing officer he was born in
1989 in El Salvador; left El Salvador by bus and traveled to Mexico; and waded
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No. 07-60203
across the Rio Grande to the United States, en route to Austin, Texas, to join his
mother.
Both of Gonzalez’ parents had come to the United States in 1998, and
obtained temporary protected status (TPS) in 2001. TPS is a temporary
immigration status granted to eligible nationals of designated countries. See 66
Fed. Reg. 14214 (Mar. 9, 2001); 8 C.F.R. §§ 244.1 to 244.20. TPS is granted upon
a finding that such nationals are temporarily unable to return to their home
countries because of an ongoing armed conflict, environmental disaster, or other
extraordinary conditions. 66 Fed. Reg. 14214. El Salvador was designated for
TPS in 2001, as a result of devastation caused by a series of severe earthquakes.
Id. That designation has been extended five times due to the finding by the
Department of Homeland Security (DHS) that El Salvador was still temporarily
unable to handle the return of its nationals because of the continuing disruption
of the living conditions caused by the 2001 earthquakes. See 67 Fed. Reg. 46000
(July 11, 2002); 68 Fed. Reg. 42071 (July 16, 2003); 70 Fed. Reg. 1450 (Jan. 7,
2005); 71 Fed. Reg. 34637 (June 15, 2006); and 72 Fed. Reg. 46649 (Aug. 21,
2007).
Gonzalez’ objection to the I-213’s admissibility was based on his being an
unaccompanied minor at the time of the interview. Gonzalez claimed admitting
the I-213 in evidence would violate his Fourth and Fifth Amendment rights, BIA
decisions, and federal regulations. After the I-213 was admitted over Gonzalez’
objection, Gonzalez refused to testify, invoking the Fifth Amendment right
against self-incrimination, despite both the Government’s counsel’s and the IJ’s
noting that, because Gonzalez was a minor, he could not be criminally
prosecuted.
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No. 07-60203
Gonzalez also asked to be allowed to cross-examine the I-213’s preparer.
That request was overruled.
In his oral decision rendered on the day of the removal hearing (19
February), the IJ concluded Gonzalez was removable as charged. The IJ found:
the I-213 was inherently trustworthy to establish alienage; and there was no
evidence the information in the I-213 was obtained through coercion, duress, or
violation of law. The IJ also concluded that Gonzalez’ statements to the
immigration officer, as reflected in the I-213, did not concede removability;
rather, they were “simple statements . . . concerning his life factors . . . such as
date of birth, place of birth, parents names and other data that would be
appropriately obtained by an immigration officer”.
At a subsequent hearing on 20 April 2004 for relief from removal, Gonzalez
informed the IJ that he intended to seek reconsideration of removability.
Gonzalez submitted a supporting affidavit, in which, for the first time, he related
the circumstances of his apprehension and interview by the immigration officer.
According to the affidavit: Gonzalez was approached by immigration officers,
taken by van to an immigration office in Del Rio, Texas, placed in a cell block,
and questioned repeatedly about his name, date and place of birth, and presence
in the United States; he answered all the questions because he was “fearful and
confused” and the officer was “irritated” and “angry” and even “cursed” him; the
officer then made Gonzalez sign papers he did not understand; after several
hours of detention, Gonzalez was released to his mother who lived in Austin,
Texas; and, had he known of his right to remain silent, he would have refused
to answer the officer’s questions and would have called his mother.
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No. 07-60203
The IJ accepted the affidavit, but declined to alter his decision on
removability, reasoning: both parties rested on the issue at the 19 February
2004 removal hearing; the decision on removability was based on the law and
evidence presented at that hearing; and nothing had changed either legally or
factually since then.
Following the 20 April hearing, the IJ retired, and the matter was
reassigned. On 23 August 2005, the IJ to whom the matter had been reassigned
concurred with the finding of removability, denied an indefinite continuance
while Gonzalez sought TPS, and granted voluntary departure.
Gonzalez’ subsequent appeal to the BIA was dismissed. A divided BIA
panel held: the admission in evidence of the I-213 was not erroneous, because
it was inherently reliable to establish removability, and Gonzalez failed to show
the information in the I-213 was incorrect, or a product of coercion or duress; the
IJ’s not allowing Gonzalez to cross-examine the I-213’s preparer was not
erroneous, because Gonzalez did not assert the information in the form was
inaccurate; and Gonzalez’ request for reconsideration was untimely under 8
C.F.R. § 1003.23(b)(1) (requiring motions for reconsideration to be filed “within
30 days of the date of entry of a final administrative order of removal,
deportation, or exclusion”).
The BIA further ruled that, even if admitting the I-213 in evidence was
erroneous, Gonzalez’ TPS application, which was filed during the course of the
removal proceedings, sufficiently supported the finding of removability.
One panel member dissented, reasoning that the I-213 was not inherently
reliable to establish removability because “[a] minor respondent can lack
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No. 07-60203
maturity to appreciate and evaluate foreseeable consequences of his or her
responses provided in a custodial interrogation”.
II.
“The BIA’s factual findings are reviewed for substantial evidence; rulings
of law, de novo, deferring to the BIA’s interpretation of the immigration
statutes.” Mireles-Valdez, 349 F.3d 213, 215 (5th Cir. 2003) (citations omitted).
In challenging the BIA’s decision, Gonzalez claims the IJ erred in admitting the
I-213 because: (1) the information was obtained in “egregious violation” of
Gonzalez’ constitutional rights; (2) the information was not given voluntarily
because it was obtained in an unfair and coercive manner; (3) the information
was obtained in violation of the DHS regulations; (4) the IJ failed to conduct an
Amaya hearing to determine Gonzalez’ capacity to understand the facts
admitted through the I-213; and (5) the IJ failed to allow cross-examination of
the I-213’s preparer. Gonzales also challenges the BIA’s reliance on Gonzalez’
TPS application in its upholding removability. Without the I-213 and TPS
application, Gonzalez asserts, the Government has not met its burden of proof
to support removability.
Alternatively, in the event we find no error regarding any of the above-
referenced claims, Gonzalez seeks remand to the BIA (and ultimately, to the IJ)
with instructions to hold his case in abeyance while his TPS application is
pending.
A.
The Government contends we are jurisdictionally barred from reviewing
Gonzalez’ constitutional, “voluntariness”, and regulatory claims because he
failed to exhaust his administrative remedies by not raising those claims before
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No. 07-60203
the BIA. An alien “must exhaust before the BIA all claims that he raises in the
federal courts, that is, unless they are constitutional”. Falek v. Gonzales, 475
F.3d 285, 289 (5th Cir. 2007); see also 8 U.S.C. § 1252(a)(2)(D). The exhaustion
requirement may be met either on direct appeal to the BIA or in a motion to
reopen. Wang v. Ashcroft, 260 F.3d 448, 453 (5th Cir. 2001). “Simply alleging
facts without articulating a legal theory for recovery is insufficient to exhaust
administrative remedies as to the unstated legal theory.” Al-Mousa v. Gonzales,
166 F. App’x 746, 748 (5th Cir. 2006) (unpublished).
On appeal to the BIA, Gonzalez claimed three errors by the IJ: (1)
admitting the I-213 in evidence, because the statements were obtained from an
unaccompanied minor; (2) not allowing Gonzalez to cross-examine the I-213’s
preparer; and (3) refusing to reconsider his findings to take into account
Gonzalez’ newly-submitted affidavit, and failing to conduct an Amaya inquiry.
Three of Gonzalez’ claims were not exhausted before the BIA: his “voluntariness”
claim; his claim that the I-213 statements were obtained in violation of federal
regulations; and his request for remand with instructions to hold the case in
abeyance, while Gonzalez’ TPS application is pending. (In any event, Gonzalez
seems to be ineligible for TPS because he entered the United States after the
designated date of 13 February 2001, see 8 C.F.R. § 244.2(c) (requiring a TPS
applicant, inter alia, to show continuous residence in the United States “since
such date as the Attorney General may designate”).) Accordingly, we do not have
jurisdiction to review those three issues.
B.
As noted, Gonzalez’ constitutional claim (concerning the Fourth and Fifth
Amendments) is not subject to the exhaustion requirement. The claim is
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No. 07-60203
reviewed de novo. See 8 U.S.C. § 1252(a)(2)(D); Falek, 475 F.3d at 291; Soadjede
v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003).
Because a removal proceeding “is a purely civil action to determine
eligibility to remain in this country, not to punish an unlawful entry”, the Fourth
Amendment exclusionary rule does not apply in removal proceedings, absent
some “egregious violations of Fourth Amendment or other liberties”. INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038, 1050-51 (1984) (emphasis added); see also
Mendoza-Solis v. INS, 36 F.3d 12, 14 (5th Cir. 1994); Verduzco-Contreras v.
Gonzales, 160 F. App’x 406, 408 (5th Cir. 2005) (unpublished). Accordingly,
under that egregious-violation exception, Gonzalez claims the I-213 should have
been suppressed because his statements were obtained in egregious violation of
his Fourth and Fifth Amendment rights.
Since the Supreme Court’s 1984 decision in Lopez-Mendoza, we have never
reversed, based on a finding of egregious violation of an alien’s constitutional
rights, an IJ’s admitting into evidence an alien’s statements. See, e.g., Bustos-
Torres v. INS, 898 F.2d 1053, 1056-57 (5th Cir. 1990) (ruling that the I-213 was
properly admitted because it was “clearly relevant and material and . . . not
repetitious”, despite an immigration officer’s failure to give a Miranda-like
warning). One circuit found egregious violations in other contexts. E.g., Lopez-
Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) (entering aliens’ residence
without a warrant and without consent); Gonzalez-Rivera v. INS, 22 F.3d 1441
(9th Cir. 1994) (race-based border stops).
“The test for admissibility of evidence in a [removal] proceeding is whether
the evidence is probative and whether its use is fundamentally fair so as not to
deprive the alien of due process of law.” Bustos-Torres, 898 F.2d at 1055. An I-
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No. 07-60203
213 is admissible to prove alienage and removability, absent an indication that
the form “contains information that is incorrect or was obtained by coercion or
duress”. Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA Mar. 23, 1988).
Gonzalez does not assert that the statements reflected in the I-213 are not
his, or that they are incorrect. See id. To the contrary, in his post-removal-
hearing affidavit, Gonzalez stated he answered truthfully the immigration
officer’s questions. Instead, Gonzalez claims the statements reflected in the I-213
should have been suppressed because they were obtained through improper
interrogation techniques used on a minor.
Gonzalez’ allegations of coercion are insufficient to establish the
interviewing immigration officer committed the requisite “egregious violation”
of Gonzalez’ constitutional rights. The immigration officer’s alleged failure to
advise Gonzalez of his right to remain silent and his right to counsel (at no
expense to the Government), would not be egregious, because, as noted, removal
proceedings are “civil, not criminal in nature”. Sewani v. Gonzales, 162 F. App’x
285, 288 (5th Cir. 2006) (unpublished) (“Miranda warnings are not required in
the deportation context”.) (citing Bustos-Torres, 898 F.2d at 1056). Likewise, the
immigration officer’s alleged repeated questioning of Gonzalez and raising his
voice do not rise to the level of the requisite egregious violation that would
render the admission in evidence of the I-213 fundamentally unfair.
Furthermore, other than his affidavit, nothing in the record supports
Gonzalez’ allegations of egregious constitutional violations. At his 19 February
2004 removal hearing, he refused to testify, although, as a minor, he did not face
criminal prosecution and was so advised. “Where a party wishes to challenge the
admissibility of a document, the mere offering of an affidavit is not sufficient to
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No. 07-60203
sustain his burden.” Barcenas, 19 I. & N. Dec. at 611. “If the affidavit is such
that the facts alleged, if true, could support a basis for excluding the evidence in
question, then the claims must also be supported by testimony.” Id.
In addition, the allegations of coercion were untimely. At the 19 February
2004 removal hearing, Gonzalez did not challenge the admission in evidence of
the I-213 on the basis that his statements were coerced. The record, as it stood
at the time of that hearing, does not show Gonzalez provided any evidentiary
basis for questioning the I-213’s validity. It was not until nearly two months
after the 19 February hearing that Gonzalez sought to introduce his affidavit to
support his challenge to the I-213’s admissibility. The admission of the I-213 was
not erroneous because the form was probative, and it was not fundamentally
unfair to admit it.
The BIA also determined correctly that the IJ did not err in refusing to
reconsider his finding of removability based on Gonzalez’ affidavit. Denials of
motions to reconsider or reopen are reviewed for abuse of discretion. Singh v.
Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). The affidavit was submitted nearly
two months after both parties had rested at the 19 February removal hearing;
it did not contain any evidence that could not have been introduced at that
hearing; and the request for reconsideration was untimely. See 8 C.F.R. §
1003.23(b)(1) (requiring motions to reconsider to be filed “within 30 days of the
date of entry of a final administrative order of removal, deportation, or
exclusion”).
Assuming, arguendo, that Gonzalez’ motion to reconsider should have been
treated as a motion to reopen based on the new evidence contained in his
affidavit (in which case, the motion would have been timely, see 8 C.F.R. §
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No. 07-60203
1003.23(b)(1) (90 days)), the IJ did not abuse his discretion because, as noted, the
alleged evidence of coercion was previously available to Gonzalez and could have
been presented at the 19 February hearing. See 8 C.F.R. § 1003.23(b)(3)
(requiring a motion to reopen to establish that “evidence sought to be offered is
material and was not available and could not have been discovered or presented
at the former hearing”); see also Manzano-Garcia v. Gonzales, 413 F.3d 462, 469
(5th Cir. 2005). Gonzalez’ constitutional challenge to the I-213’s admissibility
fails.
C.
Gonzalez and the opinion concurring in the judgment claim the IJ failed
to comply with the requirements established in In re Efrain Amaya-Castro, 21
I. & N. Dec. 583 (BIA 1996). Amaya involved a pro se minor who admitted
removability at a removal hearing. Id. at 584. Based solely on that admission,
the IJ found the minor removable as charged. Id. at 585. In Amaya, the BIA
explained the requirements in former 8 C.F.R. § 242.16(b), currently 8 C.F.R. §
1240.10(c), which provides: in a removal proceeding, the IJ “shall not accept an
admission of removability from an unrepresented respondent who is . . . under
the age of 18 and is not accompanied by an attorney or legal representative, a
near relative, legal guardian, or friend”. 8 C.F.R. § 1240.10(c). If a minor’s
admissions of removability cannot be accepted pursuant to this section, the IJ
is required to conduct a hearing on the issues. Id.
In Amaya, however, the BIA clarified that the regulation does not preclude
an IJ from accepting a minor’s admissions to factual allegations. Amaya, 21 I.
& N. Dec. at 586. Rather, the IJ “must consider the reliability of the testimony
given by such a minor in response to the factual allegations made against him
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No. 07-60203
in determining, after a comprehensive and independent inquiry, whether there
is clear, unequivocal, and convincing evidence of the minor’s [removability]”. Id.
at 587. If the IJ determines the minor “is both capable of understanding, and in
fact understands, any facts that are admitted”, those facts may form “the sole
basis of a finding that the minor is [removable]”. Id.
The BIA proceeded in Amaya to find that the minor’s unclear and
equivocal testimony did not support the IJ’s finding of removability. Id. at 588.
The BIA found, however, that the minor’s admission that he was born in
Honduras was clear, equivocal, and convincing evidence of alienage that shifted
to him “the burden of showing the time, place, and manner of his entry”. Id. The
matter was remanded to the IJ for the minor to satisfy that burden. Id.
Here, the BIA concluded that Amaya did not preclude the IJ’s accepting
Gonzalez’ statements to the immigration officer, as reflected in the I-213,
without undertaking any further inquiry. The BIA explained that, although
Amaya prohibited an IJ from accepting an unaccompanied and unrepresented
minor’s admission to a charge of removability, the IJ could accept such a minor’s
admissions to factual allegations, so long as “the minor’s age, pro se and
unaccompanied status, and the reliability of the minor’s statements were taken
into consideration”.
Even assuming the regulation at issue is ambiguous, federal courts give
deference to an administrative agency’s interpretation of its own regulations if
those regulations are ambiguous. See Singh, 436 F.3d at 487 (citing Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). On the other
hand, the BIA is required to follow its own precedent, unless it is overruled.
Galvez-Vergara v. Gonzales, 484 F.3d 798, 802 (5th Cir. 2007).
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No. 07-60203
The BIA determined correctly that the IJ did not violate Amaya. Gonzalez
denied the charge of removability; therefore, Amaya is inapposite on that issue.
As to Gonzalez’ admissions to factual allegations made during the interview with
the immigration officer, as reflected in the I-213, he prevented the IJ from
conducting an Amaya inquiry by invoking his Fifth Amendment right against
self-incrimination. An alien minor cannot fault an IJ for failure to inquire into
his capacity when, as here, he declines to testify at a removal hearing, and there
would be no criminal consequences had he chosen to do so.
The opinion concurring in the judgment asserts the above statement about
Gonzalez’ preventing the IJ from conducting the Amaya inquiry is “factually
inaccurate” because the Fifth Amendment was invoked only after admission of
the I-213. Of course, had the Fifth Amendment not been invoked, and had
Gonzalez’ testimony raised concerns about the admission of the I-213, perhaps
a form of Amaya hearing would have ensued that might have caused
reconsideration of the I-213’s admission. Obviously, Gonzalez’ invocation
precluded that possibility.
D.
Gonzalez’ claim that the IJ erred by not allowing him to cross-examine the
I-213’s preparer is also without merit. In that regard, IJs must conduct removal
proceedings “in accord with due process standards of fundamental fairness”.
Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992). (Contrary to the position
of the opinion concurring in the judgment, and on this record, this issue was
raised sufficiently at the removal hearing.)
Due process standards require, inter alia, that, in removal proceedings,
aliens be afforded a reasonable opportunity to cross-examine witnesses
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No. 07-60203
presented by the Government. See 8 C.F.R. § 1240.10(a)(4), see also Espinoza v.
INS, 45 F.3d 308, 311 (9th Cir. 1995). There are some exceptions to the right of
cross-examination, however. “[P]eople may not assert a cross-examination right
to prevent the government from establishing uncontested facts”. Olabanji, 973
F.2d at 1234-35 n.1. Furthermore, the form I-213 is “essentially a recorded
recollection of a conversation with [an] alien”, and it is generally admissible
unless the alien shows the statements reflected in the I-213 are not his, or that
they were obtained through coercion. See Bustos-Torres, 898 F.2d at 1056
(holding the I-213 was properly admitted where the statements were those of the
alien, there was no attempt to “impeach the information on the form”, and the
alien pleaded the Fifth Amendment).
As discussed, at the removal hearing on 19 February 2004, Gonzalez did
not contest the veracity of his statements in the I-213. His subsequent affidavit
asserting coercion by the immigration officer was presented to the IJ at the 20
April 2004 hearing on relief from removal, after both parties had rested on the
issue of removability on 19 February 2004 and the IJ had found Gonzalez
removable as charged that same day. At the 19 February removal hearing, he
also invoked his Fifth Amendment right to silence. Because the I-213 statements
were not contradicted or impeached at the removal hearing, the IJ did not err by
not allowing Gonzalez to cross-examine the I-213’s preparer.
E.
As discussed, in its order of dismissal, the BIA concluded that, in the
alternative, Gonzalez’ TPS application “alone [was] a sufficient basis on which
to sustain the charge” of removability. Because we uphold the BIA’s finding of
removability based on that finding’s being supported by clear, unequivocal, and
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convincing evidence, we need not reach whether the BIA’s also relying on
Gonzalez’ TPS application to find removability was erroneous.
III.
For the foregoing reasons, the petition is DENIED.
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HAYNES, Circuit Judge, concurring in the judgment.
I concur in the judgment. However, I diverge from the majority in the
reasoning underlying the decisions expressed in sections II.C and II.D. I
write briefly to explain.
As In re Efrain Amaya-Castro, 21 I. & N. Dec. 583 (BIA 1996),
contemplates, an IJ is not permitted merely to accept a minor’s admissions to
factual allegations expressed in an I-213, procured through an interrogation
of an unaccompanied, unrepresented minor. Instead, the IJ must inquire into
the reliability of the minor’s statements in light of the circumstances
surrounding the interrogation. That IJ inquiry did not occur here. The BIA
and the majority excuse the IJ’s lack of inquiry by stating that Gonzalez
“prevented the IJ from conducting an Amaya inquiry by invoking his Fifth
Amendment right against self-incrimination.” That is factually inaccurate.
The Fifth Amendment invocation took place after the I-213 was already
admitted. Thus, its invocation did not preclude an Amaya-type inquiry.1
Nonetheless, I concur in the decision because, at the hearing in
question, Gonzalez’s attorney never expressly requested that the IJ conduct
an Amaya hearing. Having failed to request such a hearing, his complaint
1
Nothing indicates that the IJ concluded that the Fifth Amendment invocation was
improper or that it prevented him from conducting a necessary inquiry into the already-
admitted I-213. The transcript of the hearing shows that, after discussing for a few pages
whether Gonzalez had any legitimate fear of criminal prosecution, the IJ ruled as follows: “I
will go ahead and allow you to make a blanket Fifth Amendment assertion on his right to
respond and I think that’s probably appropriate under the circumstances . . . instead of having
him come up and attempt to go through you, trying to get him to assert a right that he has,
that, or maybe he doesn’t have, I’m not exactly certain on that . . . .” (emphasis added). Thus,
the IJ sustained the blanket assertion.
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about the lack of a hearing rings hollow. Hannah v. United States, 523 F.3d
597, 600 (5th Cir. 2008) (“arguments raised for the first time on appeal will
not be considered” (citation omitted)).
Similarly, I disagree with the discussion in section II.D, and it is
unnecessary. Although Gonzalez’s attorney “invoked the right to cross-
examine” the I-213 preparer, he never stated that the IJ should summon the
preparer, and he did not otherwise request the preparer’s presence there. He
never obtained a ruling from the IJ one way or the other on whether the IJ
would summon the preparer, and we have no information about whether the
preparer was nearby or far away.2 Thus, Gonzalez failed to preserve any
error on this point, and it is unnecessary to reach the merits of this argument.
2
In the context of making numerous objections to admission of the I-213, Gonzalez’s
attorney stated: “And, so I would also invoke respondent’s right to cross examine the officer
that prepared this document. And, I don’t know if the officer’s available or not, we will
certainly [be] prepared to question him in connection with the interrogation that he
conducted.” After all the objections were made, the IJ overruled them and admitted the I-213.
Gonzalez’s attorney never asked to summon the preparer, and the IJ never ruled on that
question.
17