             Case: 18-12212    Date Filed: 02/28/2019   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-12212
                           Non-Argument Calendar
                         ________________________

                           Agency No. A087-187-598

FRANCISCO NUNES DE SALES,
a.k.a. Francisco Nunes,

                                                                         Petitioner,

                                       versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                         ________________________

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

                              (February 28, 2019)

Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges.

PER CURIAM:

      Francisco Nunes De Sales seeks review of the decision of the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order

finding him removable for procuring an adjustment of status by fraud, pursuant to
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the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(A). De Sales

argues that: (1) the IJ and BIA violated his due process rights by allowing the sworn

statement of his ex-wife into evidence without bringing her as a witness so he could

cross-examine her; and (2) the BIA did not have substantial evidence drawn from

the record to support his removal. After thorough review, we deny the petition.

      Generally, we review the BIA’s decision as the final agency decision. Ruiz

v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). However, where the BIA adopts

the IJ’s reasoning, we also review the decision of the IJ to the extent of that

agreement. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009).

      We review de novo constitutional challenges, including due process

violations. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per

curiam). We review factual determinations, including findings of removability, for

substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.

2004). Under the substantial evidence test, we view the record in the light most

favorable to the agency’s decision, drawing all reasonable inferences in favor of that

decision. Id. at 1027. Accordingly, we must affirm the BIA’s decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole. Id. Put differently, the decision of the BIA and IJ can only

be reversed if the evidence compels a reasonable fact finder to find otherwise. Chen

v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2008) (per curiam).


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      First, we are unpersuaded by De Sales’s due process claim. Petitioners in

removal proceedings are entitled to Fifth Amendment protections to assure that they

are “given notice and an opportunity to be heard.” Lapaix, 605 F.3d at 1143. To

prove a due process violation, the petitioner must show that he was “deprived of

liberty without due process of law and that the purported errors caused [him]

substantial prejudice.” Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th Cir.

2011) (per curiam) (quotations omitted). To establish substantial prejudice, the

petitioner must show that, “in the absence of the alleged violations, the outcome of

the proceeding would have been different.” Id. (quotations omitted).

      “When considering the fairness of admitting hearsay,” we look to “the

challenged evidence’s reliability and trustworthiness.” Indrawati v. U.S. Att’y Gen.,

779 F.3d 1284, 1299 (11th Cir. 2015). Within the immigration context, we’ve “not

yet recognized anything resembling a right to confrontation rooted in the Due

Process Clause.” Id. at 1300 n.23. Evidence in deportation proceedings “need only

be probative and its use fundamentally fair, so as not to deprive an alien of due

process of law.” Matter of Velasquez, 19 I&N Dec. 377, 380 (BIA 1986).

      Here, the IJ and BIA properly admitted as evidence the sworn statement of De

Sales’s ex-wife, Olga Puerto Hurtado, despite De Sales’s claim that his due process

rights were violated because he was not able to cross-examine her. For starters,

we’ve never recognized a right to confrontation in the removability context.


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Indrawati, 779 F.3d at 1300 n.23. Moreover, the record reveals that Hurtado’s sworn

statement was reliable, trustworthy, probative and fair. Id. at 1299; Velasquez, 19

I&N at 380. As the IJ found, the sworn statement had “significant” probative weight

(it spoke directly to the bona fide nature of De Sales’s marriage), and it was reliable

and trustworthy (Hurtado made a statement against her interest by admitting to a

crime).

      De Sales further argues that the IJ impermissibly shifted the burden to him by

finding that the government did not need to call Hurtado as a witness and that De

Sales himself could have called her, but we disagree. As De Sales admits in his

briefs, the government had originally listed Hurtado as a witness before removing

her as a witness, which means that De Sales had notice that she could play a role in

the case. The record also reflects that De Sales also had notice that it was her sworn

statement that provided the grounds for his case, and that the IJ indicated that he

would have allowed De Sales to call her as his witness.

      Overall, the proceedings before the IJ plainly provided De Sales with

sufficient notice and opportunity to be heard regarding his claims -- he was

represented by counsel, and he was given an opportunity to bring evidence to his

defense, to testify on his behalf, and to cross-examine the officer who obtained the

sworn statement. See Lapaix, 605 F.3d at 1143. Thus, because De Sales had notice

and the opportunity to call Hurtado, and because Hurtado’s statement was against


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her penal interest and highly probative, De Sales was not deprived of due process.

Indrawati, 779 F.3d at 1299; Velasquez, 19 I&N at 380.

      We are also unconvinced by De Sales’s claim that the BIA’s removal decision

was not supported by substantial evidence.         An alien is deportable if he is

inadmissible at the time of his adjustment of status for engaging in fraud or willfully

misrepresenting a material fact. 8 U.S.C. §§ 1227(a)(1)(A), 1182(a)(6)(C)(i). The

government bears the burden to establish through clear and convincing evidence that

the alien is deportable. 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a).

      The “civil nature” of removal proceedings eliminates the “provision which

forbids drawing an adverse inference from the fact of standing mute.” Immigration

& Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1043-44 (1984)

(quotation omitted). When confronted with evidence against him, “a respondent

who remains silent may leave himself open to adverse inferences, which may

properly lead in turn to a finding a deportability against him.” Matter of Guevara,

20 I&N Dec. 238, 241 (BIA 1990).

      In this case, the BIA properly relied on reasonable, substantial, and probative

evidence from the record as a whole to conclude that De Sales was removable for

his sham marriage with Hurtado. Specifically, the IJ and BIA gave these reasons,

all supported by the record, to reach the conclusion that the marriage was a sham:

(1) Hurtado’s handwritten sworn statement that she entered into a sham marriage in


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exchange for a Buick and that she and De Sales never truly lived together, Officer

Mateo’s testimony that he personally observed Hurtado write the statement, and the

lack of evidence showing that Hurtado lied on the statement; (2) De Sales’s failure

to list the residence he purported to live in with Hurtado during their marriage when

asked about all his prior addresses; (3) the lack of time between his marriage and

application for status and the lack of time between his approved adjustment and his

divorce; (4) De Sales’s failure to list in his application for adjustment a son he had

fathered with a woman other than Hurtado, which possibly was an attempt to avoid

scrutiny of his application; and (5) De Sales’s invocation of the Fifth Amendment

against self-incrimination when asked why he married Hurtado, if he had ever lived

at his purported marital home, and what his marital status was on his 2009 and 2010

tax returns.

      Indeed, adverse inferences based on silence are permissible in removal

proceedings, as they are civil in nature rather than criminal, and “may properly lead

in turn to a finding a deportability against him.” Lopez-Mendoza, 468 U.S. at 1043-

44; Guevara, 20 I&N at 241. The fact that De Sales responded to most of the

government’s questions, and chose only to remain silent in the face of questions

whose answers would prove the fraudulent nature of his marriage provides a strong

inference. On this record, we cannot say that the IJ and BIA’s finding of an adverse




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inference in De Sales’s choice to remain silent was unsupported or could not have

been used to make a finding of deportability against him. Guevara, 20 I&N at 241.

      Accordingly, substantial evidence in the record as a whole supports the

conclusion of the IJ and BIA that De Sales was removable for his sham marriage

with Hurtado. Adefemi, 386 F.3d at 1027. While we might have weighed the

evidence and come to a different conclusion, the evidence does not compel a

different finding. Chen, 463 F.3d at 1230-31. We deny the petition for review.

      PETITION DENIED.




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