                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 January 9, 2006

                         _____________________             Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-60261

                           (Summary Calendar)
                         _____________________

            SHEHERYAR SEWANI,

                                   Petitioner,

            v.

            ALBERTO R GONZALES, U S ATTORNEY GENERAL,

                                   Respondent,

            __________________________________________


                     Petition for Review from the
                    Board of Immigration Appeals,
                            No. A79 005 391
            __________________________________________

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Petitioner appeals the decision of the Board of Immigration

Appeals’ affirmance of the Immigration Judge’s order of removal.

We AFFIRM.

                                   I

     Petitioner is twenty-one years old and a citizen of

Pakistan.    He was admitted to the United States in 1990 on a six-

     *
          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that this opinion should not be published and is not precedent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.

                                   1
month visa.   Without seeking authorization from the Immigration

and Naturalization Service (“INS”), now the Department of

Homeland Security (“DHS”), Petitioner remained in the United

States for more than the six-month period.   After voluntarily

appearing at the DHS office in Houston in March 2003 pursuant to

the “special registration” that was mandated by the National

Security Entry/Exit Registration Statute (“NSEERS”), the

government determined that Petitioner’s lawful immigration status

had ended.    It issued Petitioner a Notice to Appear, charging him

as removable pursuant to section 237(a)(1)(B) of the Immigration

and Nationality Act (“INA”), as a nonimmigrant remaining in the

United States for longer than permitted.   Petitioner’s hearing

was set for July 28, 2003.

     After allowing a continuance of Petitioner’s case to

November 13, 2003, the Immigration Judge (“IJ”) found that there

was no relief available.   The IJ therefore ordered Petitioner to

be removed from the United States to Pakistan.   Petitioner

appealed to the Board of Immigration Appeals (“BIA”), which

adopted and affirmed the decision of the IJ.   Petitioner now

appeals the decision of the BIA.



                                   II

     Petitioner makes four arguments: (1) that the NSEERS had a

discriminatory and disparate impact on him in violation of his

due process rights under the Fifth Amendment; (2) that the DHS

                                   2
did not follow its own policies and procedures in issuing

Petitioner’s Notice to Appear; (3) that he was denied “his

fundamental right to present a defense” because the DHS did not

respond to his Freedom of Information Act (“FOIA”) request; and

(4) that the IJ abused his discretion in admitting evidence from

the government allegedly obtained in violation of his due process

rights.

     We review questions of law de novo and review factual

conclusions of the BIA for substantial evidence.     Carbajal-

Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).    As the

Immigration and Naturalization Act (“INA”) states, in pertinent

part, “the court of appeals shall decide [a] petition only on the

administrative record on which the order of removal is based.”     8

U.S.C. § 1252(b)(4)(A).   Also, we accord broad deference to the

BIA’s interpretations of the statutes and regulations that it

administers.   Carbajal-Gonzalez, 78 F.3d at 197 (citing Chevron

USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).

     First, Petitioner argues that NSEERS was unconstitutional

“as applied to him,” because he is not “the kind of person

Congress intended to reach with the enactment of the NSEERS.”

Congress’s distinguishing among nationalities for purposes of

setting immigration policy is not constitutionally problematic.

We have previously stated that

     [t]he core of Congress’s power over immigration is the
     ability to set the requirements an alien must meet to
     qualify for admission to, or continued residence in, the

                                 3
     Untied States or for naturalization as a United States
     citizen. Due process does not require Congress to grant
     aliens from all nations with the same chances for admission
     to or remaining with the United States. Congress may
     permissibly set immigration criteria that are sensitive to
     an alien’s nationality or place of origin. It is not for
     this Court to question Congress’s decisions on such matters.

Rodriguez-Silva v. INS, 242 F.3d 243, 248 (5th Cir. 2001).

It is uncontested that Petitioner was born in, and is therefore a

citizen of, Pakistan.    Congress plainly gave notice in the

Federal Register that citizens of Pakistan, including Petitioner,

were required to appear before and register with the former INS.

See Registration of Certain Nonimmigrant Aliens from Designated

Countries, 67 Fed. Reg. 77642 (Dec. 18, 2002); Registration of

Certain Nonimmigrant Aliens from Designated Countries, 68 Fed.

Reg. 8046 (Feb. 19, 2003).

     Second, we agree with the BIA that Petitioner’s argument

that the charging document was not properly issued is unavailing.

Petitioner complains that the Notice to Appear was signed by a

person he claims was not authorized to do so, and that the INS,

which initiated the Notice to Appear, no longer existed at the

time of its issuance.    We address these claims in turn.

     Petitioner’s Notice to Appear was signed by the Interim

District Director, who Petitioner claims was unauthorized since

“Interim District Director” is not listed in 8 C.F.R. § 239.1,1

     1
         This section reads:

     (A) Issuance of notice to appear. Any immigration officer,
     or supervisor thereof, performing an inspection of an

                                  4
which regulates who may issue a Notice to Appear.    We find that

the title “Interim District Director” is self-explanatory: the

Interim District Director is acting in the capacity of the

District Director for a temporary period until the position is

permanently filled.   Thus, acting in the capacity of the District

Director, the Interim District Director was authorized to issue

Petitioner’s Notice to Appear pursuant to 8 C.F.R. § 239.1.

     In addition, Petitioner’s complaint that the INS which

initiated the Notice to Appear subsequently ceased to exist is

unavailing.   In March 2003, the functions of the INS were

transferred to the DHS.   See Authority of the Secretary of

Homeland Security; Delegations of Authority; Immigration Laws, 68

Fed. Reg. 10922 (Mar. 6, 2003).    Thus, the DHS assumed the INS’s

role with regard to charging Petitioner with removability.

     With regard to Petitioner’s third argument, the

administrative record provides no evidence that Petitioner made a

request of the DHS under FOIA.    Even if he had, Petitioner is

unclear as to what information he expected to receive from the

FOIA request.   He states, “Such information requested by

[p]etitioner could have been particularly crucial to


     arriving alien at a port-of-entry may issue a notice to
     appear to such alien. In addition, the following officers,
     or officers acting in such capacity, may issue a notice to
     appear:

     (1) District directors (except foreign) . . . .

8 C.F.R. § 239.1 (emphasis added).

                                  5
[p]etitioner’s defense or needed for defense strategy” (emphasis

added).    “Proof of a denial of due process in an administrative

proceeding requires a showing of substantial prejudice.”      Ka Fung

Chan v. INS, 634 F.2d 248, 258 (5th Cir. 1981).    Petitioner fails

to show any prejudice from his unsatisfied FOIA request.

     Finally, Petitioner argues that the IJ abused his discretion

by allowing into evidence Form I-213 (Record of

Deportable/Inadmissible Alien), which records the information

Petitioner offered at his NSEERS interview at the DHS office in

Houston.    Petitioner complains that the contents of the I-213

were obtained in a manner “fundamentally unfair to him,” in that

“he was not properly advised of his rights to have counsel, or

advised that any information he gave could and would likely be

used against him in any future immigration proceeding.”    As we

have previously held, “Miranda warnings are not required in the

deportation context, for deportation proceedings are civil, not

criminal in nature, and the Sixth Amendment safeguards are not

applicable.”    Bustos-Torres v. INS, 898 F.2d 1053, 1056 (5th Cir.

1990)(citing Trias-Hernandez v. INS, 528 F.2d 366, 368 (5th Cir.

1975)).    Likewise, the Fifth Amendment is inapplicable to

Petitioner’s case.    While it is true that “deportation hearings

must conform to due process standards [and] an alien’s

involuntary statements cannot be used against him in a

deportation hearing,” id. at 1057, Petitioner has failed to show

the requisite “coercion, duress, or improper action on the part

                                  6
of the immigration officer,” id. (internal quotation marks

omitted), to evidence involuntariness.   We find that the IJ did

not abuse his discretion in admitting this form into evidence.

     Thus, we AFFIRM the order of the BIA affirming the decision

of the IJ issuing removal of the Petitioner to Pakistan.




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