                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1556
                                       ___________

                              AHMAD REZA SHAYESTEH,
                       a/k/a BEHROOZ KAREEM BEHNEZHAD,
                                            Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA

                       ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A022-718-461)
                     Immigration Judge: Honorable Andrew Arthur
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 16, 2015

         Before: GREENAWAY, JR., SCIRICA and RENDELL, Circuit Judges

                           (Opinion filed: September 23, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Pro se petitioner Ahmad Reza Shayesteh petitions for review of a final order of

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
removal issued by the Board of Immigration Appeals (BIA). For the reasons detailed

below, we will deny the petition for review.

       According to the Government, Shayesteh is a citizen of Iran who entered the

United States in 1978 as a non-immigrant student and later adjusted his status to lawful

permanent resident. The Government further contends that, in 1988, Shayesteh was

convicted in the District of Arizona, under the alias Behrooz Benazad, of mail fraud in

violation of 18 U.S.C. § 1341. Shayesteh, meanwhile, claims that he was born in

Houston, Texas, is a United States citizen, has never heard the name “Behrooz Benazad,”

and has not been convicted of mail fraud.

       It is undisputed, however, that in 1997, Shayesteh was convicted in the District of

Utah of possession of a controlled substance with the intent to distribute in violation of

21 U.S.C. § 841(a)(1) and sentenced to 262 months’ imprisonment. The Department of

Homeland Security then charged Shayesteh with being removable as an alien who had

been convicted of two or more crimes involving moral turpitude, see 8 U.S.C.

§ 1227(a)(2)(B)(i), an aggravated felony, see § 1227(a)(2)(A)(iii), and a controlled-

substance offense, see 8 U.S.C. § 1227(a)(2)(B)(i).

       Before an Immigration Judge (IJ), Shayesteh acknowledged that the controlled-

substance offense would render an alien removable, but claimed that he was a United

States citizen. The Government challenged Shayesteh’s claim of citizenship; in support




                                               2
of its position, the Government produced, among other things, I-213 forms1 from 1988

and 2013 in which agents concluded that (i) Shayesteh was a citizen of Iran, and (ii) the

fingerprints of the individual identifying himself as Benazad in 1988 matched the

fingerprints of the man named Shayesteh who had registered as a lawful permanent

resident; documents from both the mail-fraud and controlled-substance cases that

identified the defendant as a citizen of Iran;2 documents that Shayesteh filed in civil cases

in which he claimed to be a citizen of Iran; fingerprint cards and FBI analyses of those

cards, in which the examiner determined that Shayesteh’s recently obtained fingerprints

matched those of the individual who had identified himself as Benazad; and an affidavit

from Officer Gingrich stating that, at his request, the offices of vital records for both

Houston and Texas had searched for a birth certificate for Shayesteh but had been unable

to find one. Shayesteh zealously represented himself, and submitted an affidavit and

testified in support of his claim of citizenship. He did not provide any documentary

evidence, but challenged the Government’s evidence as inadmissible and unreliable.

       The IJ ruled against Shayesteh, finding that he was a citizen of Iran and

consequently removable due to his mail-fraud and controlled-substance convictions.


1
 “An I–213 form documents the arrest of an alien unlawfully present in the United
States. In addition to the circumstances of the arrest, the form contains the name, alien
number, address, date of birth, photograph, fingerprints, criminal and immigration
history, and other information about the arrestee.” Union Leader Corp. v. U.S. Dep’t of
Homeland Sec., 749 F.3d 45, 49 n.2 (1st Cir. 2014).
2
 The documents also show that the District Court enhanced Shayesteh’s sentence for his
controlled-substance conviction based on a finding that he had committed perjury.
                                            3
Shayesteh appealed to the BIA, arguing both that the IJ’s ultimate conclusion was

erroneous and that the IJ violated his due process rights in a variety of ways. The BIA

agreed with the IJ’s analysis of the case and dismissed the appeal. Shayesteh then filed a

timely petition for review to this Court.

         We generally have jurisdiction under 8 U.S.C. § 1252 to review final orders of

removal. While 8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction over removal orders

entered against aliens who have committed controlled-substance offenses or aggravated

felonies,3 we retain jurisdiction to consider Shayesteh’s due process challenges to the

proceedings before the IJ, see § 1252(a)(2)(D), and his claim of citizenship, see

Papageorgiou v. Gonzales, 413 F.3d 356, 357 (3d Cir. 2005). We review the BIA’s

denial of Shayesteh’s due process claims de novo. See Barker v. Att’y Gen., 792 F.3d

359, 362 (3d Cir. 2015). As to Shayesteh’s claim of citizenship, we must determine

whether a genuine issue of material fact is presented — if such an issue is not presented,

we will decide the nationality claim, and if such an issue is presented, we will transfer the

proceedings to the district court for an evidentiary hearing. See 8 U.S.C. § 1252(b)(5);

Joseph v. Att’y Gen., 421 F.3d 224, 229-30 (3d Cir. 2005).

         Shayesteh contends that the IJ violated his due process rights in a variety of ways.

See generally Cabrera–Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006) (per curiam)

(explaining that in immigration cases, the due process protections of the Fifth

Amendment guarantee petitioners “the right to a full and fair hearing that allows them a

3
    Shayesteh acknowledges that he has been convicted of an aggravated felony.
                                             4
reasonable opportunity to present evidence on their behalf”). He first argues that the IJ

improperly placed the initial burden of proving nationality on him. See 8 C.F.R.

§ 1240.8(c); Woodby v. INS, 385 U.S. 276, 286 (1966). Shayesteh’s contention is

entirely unsupported by the record. The IJ repeatedly noted during the hearing that the

Government bore the burden of proof, see A.R. at 359, 374, 378, 422, 591, 595, and then

accurately stated and applied that standard in its opinion, see A.R. at 233-34. Shayesteh’s

argument to the contrary lacks merit.

       Shayesteh also contends that it was improper for the IJ to order him to produce

biographical information about his early years. As an initial matter, we are not persuaded

by Shayesteh’s contention that the IJ asked him to provide this information in an effort to

elicit an inconsistency. Rather, it appears to us that the IJ merely sought to ensure that

Shayesteh, who was proceeding pro se, presented whatever evidence he could in support

of his cause. This reading is supported by the IJ’s opinion, in which the IJ turned to the

information from Shayesteh only after concluding that the Government had met its initial

burden. In any event, to make out a due process violation, Shayesteh must establish that

he was prejudiced, see Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006), and

because the information he presented was not used against him, he cannot make that

showing.

       Shayesteh also argues that the IJ erred by conducting independent research on

Westlaw, which disclosed two civil actions that Shayesteh had previously filed (and in

which he admitted being a citizen of Iran). This claim likewise lacks merit. “Unlike an
                                              5
Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an

obligation to establish and develop the record.” Islam v. Gonzales, 469 F.3d 53, 55 (2d

Cir. 2006). Thus, we have recognized that an IJ may introduce evidence into the record.

Caushi v. Att’y Gen., 436 F.3d 220, 231 (3d Cir. 2006). Here, the IJ did not even take

that step — the IJ merely called two judicial decisions to the parties’ attention and asked

them to address the decisions at a future hearing. See Constanza-Martinez v. Holder, 739

F.3d 1100, 1103 (8th Cir. 2014). The IJ did not violate Shayesteh’s due process rights in

this respect. See generally McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(“a court may take judicial notice of a prior judicial opinion”).

       Shayesteh next argues that his due process rights were violated by the introduction

of the Government’s evidence, which he characterizes as “completely lacking

authenticity, provenance and competence.” Br. at 18. We have explained that, in

immigration proceedings, “[e]xclusion of evidence is exceptional,” and “evidence is

admissible if it is probative and its use is fundamentally fair so as not to deprive the alien

of due process.” Fei Yan Zhu v. Att’y Gen., 744 F.3d 268, 273 (3d Cir. 2014).

       Shayesteh challenges two categories of evidence. First, he contends that the IJ

should have excluded records from other federal-court cases, including the two civil

cases he instituted, the criminal case in the District of Arizona concerning “Behrooz

Benazad,” and the criminal case in the District of Utah. This argument lacks merit. The

records that the Government presented were either certified by the clerk of the court or

obtained by the Government from the electronic filing system, and Shayesteh has
                                              6
provided no basis to question the documents’ accuracy. See In re Velasquez, 25 I. & N.

Dec. 680, 685 (BIA 2012). Indeed, in his hearing, he admitted to making the relevant

statements contained in those documents. Thus, the introduction of these records was not

problematic.

       Shayesteh also argues that the documents prepared by Government officials —

such as the I-213 forms and the reports from the FBI —should have been excluded. This

argument fares no better. Courts have long recognized that “agency action is entitled to a

presumption of regularity,” Bradley v. Att’y Gen., 603 F.3d 235, 239 (3d Cir. 2010)

(alteration omitted) (quoting McLeod v. INS, 802 F.2d 89, 95 (3d Cir. 1986)), and,

consequently, that “records made by public officials in the ordinary course of their

duties . . . evidence strong indicia of reliability,” Felzcerek v. INS, 75 F.3d 112, 116 (2d

Cir. 1996); see Vlisidis v. Holland, 245 F.2d 812, 814 (3d Cir. 1957). The I-213s and

FBI documents fall squarely within this purview. See, e.g., Antia-Perea v. Holder, 768

F.3d 647, 657 (7th Cir. 2014) (“[I]t is well established that the I-213 is a presumptively

reliable and admissible document.”); Chavez-Castillo v. Holder, 771 F.3d 1081, 1085

(8th Cir. 2014) (affidavit from law-enforcement officer is presumptively reliable). The

Government says that the records came either from Shayesteh’s A-File or directly from

an FBI agent, and Shayesteh has provided no basis to question those explanations. See

Fei Yan Zhu, 744 F.3d at 274. Accordingly, we likewise deny this due process challenge.

       Finally, Shayesteh argues that the Government failed to establish his alienage. We

are not persuaded. First, the Government presented an I-213 from 1988 reporting that (a)
                                              7
Shayesteh had been arrested and claimed to be Behrooz Benazad, an alien from Iran, and

(b) a fingerprint examination revealed that “Benazad” was Shayesteh, who was identified

in INS files as a lawful permanent resident. Second, the Government provided an FBI

fingerprint analysis matching Shayesteh’s fingerprints as taken in 2013 with the

fingerprints from the so-called Benazad. Finally, the Government presented numerous

records of other proceedings — both criminal and civil — in which Shayesteh admitted

to being a citizen of Iran. This evidence was unquestionably sufficient to establish

Shayesteh’s alienage. See, e.g., Antia-Perea, 768 F.3d at 659; Lopez-Chavez v. INS, 259

F.3d 1176, 1181 (9th Cir. 2001). Meanwhile, Shayesteh has provided only his own

unsupported allegations, which are not sufficient to create a material dispute of fact.4 See

Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002); Chavez-Castillo, 771

F.3d at 1085

       Accordingly, we will deny the petition for review.




4
  Further, a Government witness testified about his unsuccessful efforts to corroborate
Shayesteh’s claims. Most critically, while Shayesteh claimed to have been born in
Houston, Texas, the offices of vital records searched in vain for a copy of a birth
certificate documenting his birth. We note that the agency also determined that
Shayesteh did not testify credibly. We need not reach that aspect of its decision given
that the independent grounds discussed above are sufficient to deny the petition for
review. See generally Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011).
                                              8
