                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________
                                                                      FILED
                               No. 04-12652
                                                               U.S. COURT OF APPEALS
                           Non-Argument Calendar                 ELEVENTH CIRCUIT
                         ________________________                    JUNE 13, 2005
                                                                  THOMAS K. KAHN
                       Agency Docket No. A70-921-269                   CLERK

ALAIN H. GALVEZ-ESCOBAR,

                                                               Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                               Respondent.

                       __________________________

                   On Petition for Review from a Final Order
                     of the Board of Immigration Appeals
                        _________________________
                                (June 13, 2005)

Before BIRCH, BARKETT, and MARCUS, Circuit Judges.

PER CURIAM:

      Alain Harry Ricardo Galvez-Escobar, a native and citizen of Guatemala,

petitions for review of the Immigration Judge’s (“IJ’s”) denial of asylum and

withholding of removal under the Immigration and Nationality Act (“INA”), which
the Board of Immigration Appeal (“BIA”) affirmed without opinion.1 On appeal,

Galvez-Escobar argues the IJ erred by admitting into evidence and considering an

asylum rejection letter, which was written by Galvez-Escobar’s asylum officer after

his asylum interview. Galvez-Escobar highlights that no attempts were made to

secure any witnesses that would have personal knowledge of the 1994 asylum

interview or of the statements made by him in the interview, which were presented

solely as part of the asylum rejection letter. After thorough review of the record and

careful consideration of the parties’ briefs, we affirm.

       When the BIA affirms an IJ’s asylum denial without opinion, the IJ’s decision

constitutes the final agency determination to be reviewed by this Court. Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). We review decisions on the

admissibility of evidence for abuse of discretion. Cf. United States v. Jiminez, 224

F.3d 1243, 1249 (11th Cir. 2000) (reviewing district court’s admissibility decision).

       An IJ may consider evidence in the form of “any oral or written statement that

is material and relevant to any issue in the case previously made by the respondent.”

See 8 C.F.R. § 1240.46(b). “Uncontradicted hearsay evidence is admissible in

       1
         In his order, the IJ also denied asylum and withholding of removal under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). In his brief, Galvez-Escobar seeks our review only as to the portion of the
IJ’s order denying INA relief in his brief and, accordingly, we treat any claims as to CAT relief as
waived. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (issues not argued on
appeal are deemed waived).

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deportation proceedings if it is probative and its use is not ‘fundamentally unfair so

as to deprive petitioner of due process.’” Tashnizi v. INS, 585 F.2d 781, 782-3 (11th

Cir. 1978); see also Zahedi v. INS, 222 F.3d 1157, 1164 n.6 (9th Cir. 2000) (holding

that in immigration proceedings, documentary evidence is admissible so long as it is

probative and its admission is fundamentally fair); Bustos-Torres v. INS, 898 F.2d

1053, 1055 (5th Cir.1990) (holding that the due process test for admissibility of

evidence in a deportation hearing “is whether the evidence is probative and whether

its use is fundamentally fair”).

      Moreover, we have held that the “admission of routinely and mechanically kept

I.N.S. records, such as the I-194 form and warrants of deportation, does not violate

Rule 803(8)(B) [the public records exception to the hearsay rule].” United States v.

Augustino-Hernandez, 14 F.3d 42, 43 (11th Cir. 1994). Pursuant to Rule 803(8)(B),

      [t]he following are not excluded by the hearsay rule, even though the declarant
      is unavailable as a witness:

      (8) Public records and reports . . . . (B) matters observed pursuant to duty
      imposed by law as to which matters there was a duty to report . . . .

Fed. R. Evid. 803(8)(B). The Department of Homeland Security (“DHS”) is required

by regulation to adjudicate asylum applications. See 8 C.F.R. § 208.9(a). Asylum

officers are appointed to adjudicate those applications. See 8 C.F.R. § 208.9(b). The

asylum officers have a duty to conduct interviews to “elicit all relevant and useful

                                          3
information bearing on the applicant’s eligibility for asylum.” Id. Statements by

asylum applicants to the asylum officer during the asylum interview are given under

oath and referred to as “testimony.” 8 C.F.R. §§ 208.9(c), 208.13(a). Upon

completion of the asylum interview, the asylum officer has a duty to inform an

applicant of the decision on his or her application, either in person or in writing, and

an asylum officer’s decision, along with the application, supporting information, and

any comments constitutes the “record” of the decision. 8 C.F.R. § 208.9(e), (f).

      Here, the IJ did not err in its consideration of the asylum rejection letter, which

follows the regulation requirements by reporting Galvez-Escobar’s testimony at the

asylum interview and advising Galvez-Escobar of the INS’s intent to deny the asylum

application based on its lack of credibility. Moreover, the evidence was probative

and its admission was fundamentally fair because it assisted in verifying the

credibility of Galvez-Escobar’s claims. Accordingly, we can find no abuse of

discretion in the IJ’s decision and deny this petition for review.

      PETITION DENIED.




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