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                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-14801
                         Non-Argument Calendar
                       ________________________

                        Agency No. A088-054-789



TOMAS ALEJANDRO MANCINAS-HERNANDEZ,
a.k.a. Filiberto Alvarado,

                                                             Petitioner-Appellant,

                                  versus

US ATTORNEY GENERAL,

                                                         Respondent-Appellee.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (August 6, 2013)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Thomas Alejandro Mancinas-Hernandez (“Hernandez”) petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of the

Immigration Judge’s (“IJ”) decision that found he was removable and statutorily

ineligible for adjustment of status. After review, we deny the petition.

                           I. BACKGROUND FACTS

A.    Removal Proceedings

      In June 1996, Hernandez, a citizen of Mexico, was admitted to the United

States as a nonimmigrant visitor with authorization to remain until July 2, 1996.

Hernandez remained in the United States, without authorization, for years beyond

the date permitted by his visa. In 2003, Hernandez began working at Alatrade

Foods (“Alatrade”) in Alabama without authorization. In 2006, Hernandez

married a U.S. citizen with whom he had two children.

      In 2007, Hernandez was served with a Notice to Appear (“NTA”) charging

him with removability. The initial NTA charged Hernandez with being present in

the United States without inspection. An amended NTA, however, dropped the

initial ground and instead charged Hernandez with three new grounds for

removability: (1) remaining in the United States longer than permitted,

Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B); (2) failing to comply with the conditions of the nonimmigrant

status under which he was admitted by working at Alatrade, INA § 237(a)(1)(C), 8


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U.S.C. § 1227(a)(1)(C); and (3) falsely representing himself to be a United States

citizen for any purpose or benefit under the INA by signing an I-9 Form for

employment verification using the name Filiberto Alvarado to obtain work at

Alatrade, INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D).

      Hernandez conceded removability on the first two grounds, but denied the

third ground and sought adjustment of status to a lawful permanent resident based

on his marriage to a U.S. citizen. An alien bears the burden of proving his

eligibility for adjustment of status, including, inter alia, that he is admissible. INA

§ 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A), INA § 245(a), 8 U.S.C. § 1255(a). An

alien who falsely claims U.S. citizenship on the employment verification

documentation required by INA § 274A, 8 U.S.C. § 1324a, is inadmissible. INA

§ 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Thus, an alien who does so is

not eligible to adjust his status to lawful permanent resident.

B.    Hearings Before the IJ

      At a hearing before the IJ, Hernandez, represented by counsel, admitted that

he resided at the address on the I-9 Form, but denied signing the I-9 Form.

Hernandez testified that he obtained employment at Alatrade under his real name

without completing any forms or showing any identification other than his

Mexican-issued identification.




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      The government sought to introduce Hernandez’s sworn statement given to

an immigration officer in which Hernandez admitted he had been employed at

Alatrade under the name Filiberto Alvarado. Hernandez objected because the

government had not complied with the immigration court’s rule requiring

submission of evidence fifteen days before the hearing. The IJ overruled the

objection because Hernandez’s sworn statement was impeachment evidence.

Hernandez admitted that he had signed the sworn statement, but said that he could

not read English and had not known at the time what he was signing. Hernandez

stated that immigration officials told him “to sign papers in order to not get

deported and detained.”

      In his defense, Hernandez submitted documents showing that in March 2007

Hernandez was charged in Alabama state court with two counts of second degree

forgery, but that the state court dismissed the case in March 2010 after a grand jury

“no billed” the charges.

      The IJ continued the April 22, 2011 hearing to give Hernandez an

opportunity to obtain documentation from his former employer Alatrade showing

that Hernandez had worked there under his real name and had not submitted false

identifying information. At a subsequent May 5, 2011 hearing, however,

Hernandez’s counsel indicated that Hernandez did not wish to supplement the

record.


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C.    IJ’s Decision

      Following the second hearing, the IJ issued an oral decision finding

Hernandez removable on all three charges. The IJ sustained the first two charges

based on Hernandez’s concessions. As to the third, disputed ground, the IJ

concluded that the government had carried its burden to establish Hernandez’s

removability.

      The IJ discredited Hernandez’s testimony denying that he worked at

Alatrade under the alias Filiberto Alvarado and that he signed the I-9 Form. The IJ

found that Hernandez’s sworn statement that he had used the alias to work at

Alatrade had a high degree of reliability and was properly admitted for

impeachment purposes. The IJ noted, however, that he would have found

Hernandez not credible even if he had excluded Hernandez’s sworn statement.

The IJ further explained that Hernandez’s testimony about how he obtained the job

at Alatrade was implausible without corroborating evidence from Alatrade.

      Accordingly, the IJ concluded that the government had demonstrated

removability under INA § 237(a)(3)(D) for falsely claimed U.S. citizenship on the

I-9 Form to obtain employment at Alatrade and that Hernandez had not

demonstrated eligibility for adjustment of status. The IJ ordered Hernandez

removed to Mexico.

D.    Appeal to the BIA


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      On appeal to the BIA, Hernandez challenged the IJ’s admission of

Hernandez’s sworn statement and the IJ’s adverse credibility finding. The BIA

dismissed Hernandez’s appeal. The BIA agreed with the IJ that Hernandez’s

sworn statement was properly admitted for impeachment purposes and, as such,

was not subject to the “generally applicable deadlines for timely submission of

evidence.” The BIA concluded that the use of the sworn statement was not

fundamentally unfair and was “probative with respect to the veracity of

[Hernandez’s] testimony.”

      Because Hernandez’s sworn statement was properly admitted, the BIA also

determined that the IJ’s credibility finding as to Hernandez’s testimony was not

clear error. The BIA explained that the IJ’s credibility finding was permissibly

based on inconsistencies between Hernandez’s sworn statement and his hearing

testimony. The BIA specifically noted that: (1) although Hernandez identified his

signature on the sworn statement as his, he disclaimed ever using the Filiberto

Alvarado alias for employment purposes; (2) Hernandez’s explanations had not

persuaded the IJ; and (3) although Hernandez was given a continuance and the

opportunity to obtain employment records from Alatrade to verify that he worked

there under his own name, he failed to present such evidence.

      Finally, the BIA rejected Hernandez’s claim that because the IJ had not

mentioned the grand jury’s “no bill” in his decision, the IJ had not sufficiently


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taken into account that evidence. Nonetheless, the BIA took administrative notice

of this evidence and concluded that, when considered “within the context of the

Immigration Judge’s other factual and credibility findings,” it did not establish

clear error in the IJ’s decision. The BIA noted that: (1) the court document did not

indicate what charge was “no billed,” or the basis for the “no bill” determination

and thus was “not entitled to any considerable degree of weight”; and (2) a false

claim conviction was not necessary to sustain a charge under § 237(a)(3)(D).

                                 II. DISCUSSION

A.    Jurisdiction

      As a threshold matter, we note that we lack jurisdiction to review the

discretionary decision to deny Hernandez’s application for adjustment of status.

See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). However, we retain

jurisdiction to review colorable constitutional claims and questions of law, such as

statutory eligibility for discretionary relief. See INA § 242(a)(2)(D), 8 U.S.C.

§ 1252(a)(2)(D); Alvarado v. U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir.

2010). Hernandez raises two such claims: (1) whether the IJ’s admission of his

sworn statement was “fundamentally unfair,” and thus violated his due process




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rights; and (2) whether the IJ violated the Full Faith and Credit Act (“FCCA”) by

failing to adequately consider the grand jury’s return of a “no bill.” 1

B.     Due Process Claim

       Aliens are entitled to due process in removal proceedings, which is “satisfied

only by a full and fair hearing.” Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir.

1987). To prevail in a due process challenge, the alien must demonstrate

substantial prejudice by showing that, absent the alleged due process violation,

“the outcome would have been different.” Id. ; see also Patel v. U.S. Att’y Gen.,

334 F.3d 1259, 1263 (11th Cir. 2003) (stating that alien could not show due

process violation where the result of the removal proceedings “would have been

the same in the absence of the alleged procedural deficiencies”). In other words,

an alien asserting that the admission of evidence amounted to a due process

violation must show that, but for the admitted evidence, the outcome would have

been different.

       To safeguard due process rights, the INA provides that an alien shall have,

among other things, “a reasonable opportunity to examine the evidence against the

alien.” The Federal Rules of Evidence, however, do not apply in immigration



       1
        “We review our subject matter jurisdiction de novo.” Alvarado v. U.S. Att’y Gen., 610
F.3d 1311, 1314 (11th Cir. 2010). “We review only the BIA’s decision, except to the extent it
expressly adopts the IJ’s opinion or reasoning.” Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307
(11th Cir. 2013) (quotation marks and brackets omitted). We review de novo legal conclusions
and constitutional issues. Id.
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proceedings. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir. 2010).

Rather, in immigration proceedings, evidence is admissible “if it is probative and

its use is not fundamentally unfair so as to deprive [the] petitioner of due process.”

See Tashnizi v. INS, 585 F.2d 781, 782-83 (5th Cir. 1978) (concerning hearsay

evidence). 2

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

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

or any other person.” 8 C.F.R. § 1240.46(b). Under the rules governing

immigration court procedure, “[f]or individual calendar hearings involving non-

detained aliens, filings must be submitted at least fifteen (15) days in advance of

the hearing.” U.S. Dep’t of Justice, Exec. Office of Immigration Rev.,

Immigration Court Practice Manual (“Practice Manual”), § 3.1(b)(ii)(A).

However, this filing requirement “does not apply to exhibits or witnesses offered

solely to rebut and/or impeach.” Id.3




       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
       3
         Contrary to Hernandez’s assertion, the Practice Manual’s filing requirements are not
necessarily binding, but rather are binding on the parties subject to the IJ’s discretion. See
Practice Manual, § 1.1(b) (stating that the manual’s provisions are binding unless the IJ “directs
otherwise in a particular case”), § 3.1(d)(ii) (giving the IJ “the authority to determine how to treat
an untimely filing” and warning parties that the consequences of untimely filing an exhibit is
“sometimes” that the evidence is not entered or is given less weight).
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      Here, Hernandez has not shown a due process violation. First, we reject

Hernandez’s claim that the IJ failed to comply with the Practice Manual in

admitting Hernandez’s sworn statement. The sworn statement was admitted only

after Hernandez testified that he did not work at Alatrade under the alias Filiberto

Alvarado. Hernandez’s prior sworn statement directly contradicted his hearing

testimony and thus was impeachment evidence. To the extent Hernandez

complains that the evidence was used to prove he signed the I-9 Form as Filiberto

Alvarado, a U.S. citizen, the exception to the pre-hearing filing requirement applies

to both impeachment and rebuttal evidence.

      Moreover, the IJ found that, even absent the sworn statement, Hernandez’s

hearing testimony—that he obtained employment at Alatrade under his own name

without completing any forms and by showing only his Mexican-issued

identification—was “almost implausible” and required corroboration from

Alatrade to be believed. Although Hernandez was given two weeks to obtain such

evidence from Alatrade, he failed to do so. Thus, the IJ’s adverse credibility

determination did not turn on the sworn statement, but on Hernandez’s failure to

corroborate his otherwise implausible testimony even though he was given

additional time to do so. Under these circumstances, Hernandez has not shown

that, had the IJ excluded the sworn statement, the outcome of his removal hearing

would have been different. “Without the necessary showing of substantial


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prejudice, [Hernandez’s] challenge to the fairness of the proceeding fails.” See

Ibrahim, 821 F.2d at 1550. 4

       Finally, there is no merit to Hernandez’s argument that by admitting the

sworn statement, the IJ somehow impermissibly shifted the burden of proof to

Hernandez to prove that he was not removable. The record reflects that the IJ

clearly understood that the government had the burden to prove Hernandez’s

removability by clear and convincing evidence and that Hernandez had the burden

to prove that he was eligible for adjustment of status and properly applied the

parties’ respective burdens in his final removal order.

C.     FFCA Claim

       Hernandez argues that the IJ violated the Full Faith and Credit Act by

making findings inconsistent with the state court grand jury’s “no bill.”

       The FFCA provides that “records and judicial proceedings of any court of

any such State . . . shall be proved or admitted in other courts within the United

States . . . [and] shall have the same full faith and credit in every court within the

United States” as in the courts of that State. 28 U.S.C. § 1738. Under the FFCA, a

federal court generally must give a state court judgment “the same effect that it

       4
         While we have jurisdiction to review constitutional issues and questions of law as to the
denial of Hernandez’s request for adjustment of status, we do not have jurisdiction to review the
IJ’s underlying fact findings. See Jean-Pierre v. U.S Att’y Gen., 500 F.3d 1315, 1322 (11th Cir.
2007) (reviewing whether undisputed facts met the legal standard for torture). Thus, to the
extent Hernandez challenges the IJ’s adverse credibility finding or the factual determination that
Hernandez signed the I-9 Form using the name Filiberto Alvarado and represented himself to be
a U.S. citizen to obtain employment at Alatrade, those findings are not reviewable.
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would have in the courts of the State in which it was rendered.” Matsushita Elec.

Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 369, 116 S. Ct. 873, 876 (1996). To

determine the preclusive effect of a state court judgment in a subsequent federal

action, we look to the preclusion rules of the state. Marrese v. Am. Academy of

Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S. Ct. 1327, 1331-32 (1985).

      The BIA has applied the FFCA in immigration proceedings. Specifically, in

cases where the basis for removability is a criminal conviction, the BIA gives full

faith and credit to a state court judgment showing that the alien’s conviction has

been vacated. See In re Rodriguez-Ruiz, 22 I.&N. Dec. 1378, 1380 (BIA 2000)

(involving charge of removability as an alien convicted of an aggravated felony).

This Court has concluded, however, that when the basis for removability is the

underlying conduct rather than the criminal conviction itself, the underlying facts

can still support a finding of removability even if the conviction is vacated so long

as “they are established by reasonable, substantial and probative evidence.”

Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir. 2010) (involving charge

of removability as an alien whom the Attorney General “knows or has reason to

believe” is a drug trafficker).

      Here, as in Garces, the grounds for removability did not hinge on the

existence of a criminal conviction. Rather, the government needed to prove only

that Hernandez falsely claimed he was a U.S. citizen on an I-9 Form, whether or


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not that conduct led to a criminal conviction. Thus, the underlying facts that led to

Hernandez’s now-dismissed criminal charges can also support a finding of

removability if they were properly proved by the government. See Garces, 611

F.3d at 1347. Moreover, Hernandez, not the government, bore the burden of

establishing his eligibility for adjustment of status “clearly and beyond doubt.”

See INA §§ 240(c)(2)(A), (4)(A), 8 U.S.C. §§ 1229a(c)(2)(A), (4)(A).

      In any event, there is nothing to suggest that the BIA did not give the “no

bill” the same effect that an Alabama court would give it. Hernandez did not cite

any Alabama law indicating that the state court’s dismissal of the forgery charges

based on the grand jury’s return of a “no bill” would bar any future civil litigation,

much less litigation on the issue of whether Hernandez made a false claim of U.S.

citizenship by signing the I-9 Form. Our own research suggests otherwise. See Ex

Parte State Alcoholic Beverage Control Bd., 654 So. 2d 1149, 1152-53 (Ala. 1994)

(concluding that the dismissal of criminal charges did not preclude a subsequent

state administrative proceeding); M.L.E. v. K.B. ex rel. A.B., 794 So. 2d 1143,

1147 (Ala. Civ. App. 2000) (concluding that an acquittal did not preclude a

subsequent civil action).

      Additionally, contrary to Hernandez’s claims, the state court documents do

not show why the grand jury declined to indict him, what evidence the grand jury

examined before making its decision, or even if the dismissed forgery charges were


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based on Hernandez’s alleged signing of the I-9 Form in the name of Filiberto

Alvarado. The state court documents show only that an Alabama grand jury

declined to indict Hernandez on forgery charges. Under these circumstances, the

IJ’s fact findings did not violate the FFCA. 5

       PETITION DENIED.




       5
         There is no merit to Hernandez’s claim that the state court documents were not
considered. The parties discussed the documents during Hernandez’s hearings and in their briefs
filed with the IJ. Although the IJ did not mention them in his oral decision, the IJ is not required
to discuss explicitly every piece of evidence an alien presents. See Ayala v. U.S. Att’y Gen., 605
F.3d 941, 948 (11th Cir. 2010). Further, the BIA took administrative notice of the state court
documents and explicitly addressed them, but concluded that they had little probative weight
because they did not indicate the basis for the grand jury’s “no bill.” See 8 C.F.R.
§ 1003.1(d)(3)(iv) (permitting BIA to take administrative notice of the contents of official
documents).
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