                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            APR 30 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


VERONICA ANTOINETTE                              No.     15-72224
MOREHEAD, AKA Monique Petrice
Hightower,                                       Agency No. A057-555-427

              Petitioner,
                                                 MEMORANDUM*
 v.

WILLIAM P. BARR, Attorney General,

              Respondent.


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

                             Submitted April 9, 2019**
                               Pasadena, California

Before:      TASHIMA and PAEZ, Circuit Judges, and KATZMANN,*** Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      ***
             The Honorable Gary S. Katzmann, Judge of the United States Court of
International Trade, sitting by designation.
      Veronica Antoinette Morehead, a native and citizen of Jamaica, petitions for

review of a decision by the Board of Immigration Appeals (“BIA”) dismissing her

appeal from an immigration judge’s (“IJ”) decision that found her removable as

charged and ordered her removed to Jamaica. Morehead seeks relief on the

grounds that the IJ violated her due process rights by admitting documents that had

not been properly authenticated and without requiring additional testimony from

certain witnesses. She also challenges her removability on sufficiency of the

evidence grounds.

      We have jurisdiction under 8 U.S.C. § 1252. Because the BIA adopted and

affirmed the IJ’s decision with a citation to Matter of Burbano, 20 I. & N. Dec. 872

(BIA 1994), while also adding its own reasoning, we review both the IJ and BIA

decisions. See Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). We

review de novo the BIA’s determination of constitutional and legal questions,

including claims of due process violations, see id., and we review any

administrative findings of fact for substantial evidence, meaning we uphold the

agency’s findings unless the evidence compels a contrary result, see 8 U.S.C. §

1252(b)(4)(B); Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013). We deny the

petition for review.




                                         2
      1.      The IJ’s admission of and reliance on the passport application, FBI

rap sheet, and docket sheet relating to Monique Petrice Hightower did not violate

Morehead’s due process rights. The “sole test” governing the admission of

evidence in deportation proceedings is “whether the evidence is probative and its

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

1995), as amended on denial of reh’g (Apr. 7, 1995). As to authentication

specifically, the Ninth Circuit has held that “immigration forms [must] be

authenticated through some recognized procedure, such as those required by

[Department of Homeland Security] regulations or by the Federal Rules of Civil

Procedure.” Id. at 309–10. We have clarified that the procedures set forth in the

Federal Rules of Evidence may also be used to authenticate documents in

immigration proceedings. See Vatyan v. Mukasey, 508 F.3d 1179, 1183 (9th Cir.

2007).

         Here, the IJ considered various items of evidence before concluding that the

contested documents were authentic, i.e., that they were what the government

purported them to be: documents that related to Morehead even though they bore

the Hightower name. The IJ relied on the following evidence in concluding that

the documents could be linked to Morehead: (1) a fingerprint match between the

prints submitted by Morehead as part of her 2008 naturalization application and the


                                           3
prints taken when “Monique Petrice Hightower” was arrested and charged in 2000

in California; (2) a photo, which the IJ unequivocally found was of Morehead, that

was submitted with the 1999 passport application under Hightower’s name; (3) a

photo that accompanied an official document from the Jamaican Constabulary in

the name of Veronica Antoinette Morehead; and (4) the listing of Wayne

Morehead as a cousin and contact person on the 1999 passport application in

Hightower’s name, and as a spouse in the 2004 visa application and 2008

naturalization application in Morehead’s name.

      The IJ’s consideration of this evidence conformed to the procedure for

authentication set forth in Federal Rule of Evidence 901. See Vatyan, 508 F.3d at

1184 (explaining that Rule 901 “allows the . . . court to admit evidence if sufficient

proof has been introduced so that a reasonable [fact-finder] could find in favor of

authenticity”); cf. United States v. Whitworth, 856 F.2d 1268, 1282–83 (9th Cir.

1988) (finding that the district court had satisfied Rule 901(a)’s authentication

standard in a criminal case where the judge examined documents and compared

their contents to other known facts to conclude that they were authored by the

defendant). As a result, the IJ’s finding of authenticity not only was supported by

substantial evidence, but also satisfied our requirement that “immigration forms be

authenticated through some recognized procedure.” Espinoza, 45 F.3d at 309.


                                           4
Under these circumstances, and because Morehead did not provide any evidence

undermining the documents’ trustworthiness or authenticity, the IJ was not

required to adduce testimony from experts or other witnesses, and the admission of

the documents was fundamentally fair. See id. at 310; Trias-Hernandez v. INS,

528 F.2d 366, 370 (9th Cir. 1975).

      2.     Morehead’s related argument that due process required the

government to produce such witnesses in order to provide her the opportunity to

confront and “cross-examine the witnesses against her” is also unavailing. Unlike

in Ching and Baliza, the government here did not introduce any affidavits or

documents containing testimony of “witnesses against” Morehead. See Ching v.

Mayorkas, 725 F.3d 1149, 1153, 1158–59 (9th Cir. 2013); Baliza v. INS, 709 F.2d

1231, 1232–34 (9th Cir. 1983). Moreover, because Morehead did not present any

evidence contradicting the information in or authenticity of the government’s

proffered documents, the IJ was not required to permit such cross-examination.

See Espinoza, 45 F.3d at 311 (“Aliens in deportation proceedings may not assert a

cross-examination right to prevent the government from establishing uncontested

facts.” (internal quotation marks omitted)).

      3.     Substantial evidence supports each of the three independent bases on

which Morehead was found to be inadmissible at the time she entered the United


                                          5
States in 2005, making her removable as an “alien who at the time of entry or

adjustment of status was within one or more of the classes of aliens inadmissible

by the law existing at such time.” 8 U.S.C. § 1227(a)(1)(A). First, substantial

evidence supported the finding that Morehead was inadmissible under 8 U.S.C.

§ 1182(a)(6)(C)(ii) for having falsely represented herself to be a United States

citizen to obtain a benefit, because the IJ found that Morehead filed a passport

application in 1999, in which she falsely claimed to be a citizen. As the BIA

noted, “a passport is clearly a ‘benefit’ under the immigration laws.” Matter of

Barcenas-Barrera, 25 I. & N. Dec. 40, 44 (BIA 2009).

      In addition, substantial evidence supported the finding that Morehead was

inadmissible under § 1182(a)(6)(C)(i) for having misrepresented a material fact in

order to procure admission into the United States, because the FBI rap sheet

showed that Morehead had lied in her 2004 visa application about having never

been to the United States and having never been arrested, charged, or convicted of

a crime. Finally, substantial evidence supported the finding that Morehead was

inadmissible under § 1182(a)(7)(A)(i)(I) for not having been in possession of a

valid entry document, because the misrepresentations in her 2004 visa application

rendered void ab initio the visa that Morehead used to enter the United States in

2005. See Kyong Ho Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir. 2010)


                                          6
(explaining that under Ninth Circuit precedent, “all grants of [legal permanent

resident] status that were not in substantive compliance with the immigration laws

[are] void ab initio” (citation omitted)).

      PETITION FOR REVIEW DENIED.




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