                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 02 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MOHAMMAD IBRAHIM BUTT,                           No. 12-73237

              Petitioner,                        Agency No. A095-570-041

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted October 21, 2015**
                              San Francisco, California

Before: SILVERMAN and CHRISTEN, Circuit Judges, and DUFFY,*** District
Judge.

      Mohammad Ibrahim Butt petitions for review of the Board of Immigration

Appeals’s (BIA) decision denying his application for adjustment of status and his

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
motion for termination of removal proceedings. We have jurisdiction under 8

U.S.C. § 1252 and we affirm.

      Butt first argues that the government violated his due process right to a

fundamentally fair removal hearing by introducing an I-213 Form without making

available for cross examination the Border Patrol Agent who prepared it.1 The Due

Process Clause mandates that evidence in a removal hearing be “probative and its

admission . . . fundamentally fair,” Espinoza v. INS, 45 F.3d 308, 310 (9th Cir.

1995), which generally requires that the alien have “a reasonable opportunity . . . to

cross-examine witnesses presented by the Government.” 8 U.S.C.

§ 1229a(b)(4)(B). A Form I-213, however, is presumptively reliable, and

“absen[t] . . . evidence to the contrary presented by the alien,” there is no right to

confront the Form’s preparer. Espinoza, 45 F.3d at 310–11. Butt has presented

insufficient evidence to refute the presumption of reliability and establish a due

process violation. The fact that the Form deviates from Butt’s own testimony goes

to the Form’s evidentiary weight, not its admissibility. Butt’s argument that the

Form is unreliable because it memorializes an interview that was conducted in

      1
             Although the REAL ID Act stripped this Court of jurisdiction to hear
appeals from discretionary denials, the Court “retains jurisdiction over petitions for
review that raise colorable constitutional claims or questions of law.” Bazua-Cota
v. Gonzales, 466 F.3d 747, 748 (9th Cir. 2006). Because Butt presents a colorable
due process claim we retain jurisdiction to review it.

                                            2
English, rather than his native Urdu, is unavailing because the record shows he was

able to communicate in English when he applied for a visa, and the I-213 contains

no indication that Butt and the Border Patrol Agent had any difficulty interacting.

Indeed, much of the I-213's narrative is undisputed by the parties, which is

consistent with Butt and the Border Patrol agent communicating well.

      Butt next argues that the BIA’s adverse credibility finding was not supported

by substantial evidence. Butt’s application for adjustment of status and his motion

to terminate removal proceedings both turn on whether he was inspected upon

entry into the country, and if Butt’s testimony is credited, he was properly

inspected upon entry. The BIA, however, found Butt’s testimony not credible

because he previously represented on several occasions that he had entered the

country without inspection, and his testimony about his 2004 and 2001 entries into

the country differed from the I-213's account. These reasons constitute substantial

evidence to support the BIA’s negative credibility determination. Because the

introduction of the I-213 did not render Butt’s hearing fundamentally unfair, and

because the BIA’s decision to discount Butt’s testimony that he was inspected and

instead credit the I-213 was adequately supported, Butt’s petition for review is

denied.

      PETITION DENIED.


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