         09-3563-ag
         Gaitan-Cortez v. Holder
                                                                                         BIA
                                                                                  Montante, IJ
                                                                                 A088 186 070
                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16 th day of March, two thousand and ten.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                          Circuit Judge,
 9                KIMBA M. WOOD, *
10                         District Judge. **
11       _________________________________________
12
13       JOSE AMILCAR GAITAN-CORTEZ,
14                Petitioner,
15
16                           v.                                    09-3563-ag
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22


                  *
               The Hon. Kimba M. Wood, Senior Judge of the United
         States District Court for the Southern District of New York,
         sitting by designation.
                  **
                The Hon. Rosemary S. Pooler, originally assigned to
         this panel, did not participate in the consideration of this
         appeal. The remaining two members of th panel, who are in
         agreement, have determined this matter. See Second Circuit
         Internal Operating Procedure E(b); 28 U.S.C. § 46(d); United
         States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1   FOR PETITIONER:            Jose Amilcar Gaitan-Cortez, pro se,
 2                              West New York, NJ.
 3
 4   FOR RESPONDENT:            Jessica Segall, Trial Attorney,
 5                              Office of Immigration Litigation
 6                              (Tony West, Assistant Attorney
 7                              General; Leslie McKay, Assistant
 8                              Director, Office of Immigration
 9                              Litigation, on the brief), United
10                              States Department of Justice,
11                              Washington, D.C.
12
13       UPON DUE CONSIDERATION of this petition for review of a

14   Board of Immigration Appeals (“BIA”) decision, it is hereby

15   ORDERED, ADJUDGED, AND DECREED, that the petition for review

16   is DENIED.

17       Petitioner     Jose    Amilcar       Gaitan-Cortez,   a    native   and

18   citizen of El Salvador, seeks review of the July 24, 2009,

19   order of the BIA affirming the August 4, 2008, decision of

20   Immigration Judge (“IJ”) Philip J. Montante, Jr., ordering him

21   removed to El Salvador.     In re Jose Amilcar Gaitan Cortez, No.

22   A 088 186 070 (B.I.A. July 24, 2009), aff’g No. A 088 186 070

23   (Immig.   Ct.   Buffalo,   N.Y.   Aug.     4,   2008).    We   assume   the

24   parties’ familiarity with the underlying facts of the case,

25   procedural history, and issues for review on appeal.

26       Under the circumstances of this case, this Court reviews

27   the decision of the IJ as supplemented by the BIA.                See Yan

28   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).             We review



                                          2
1    the agency’s factual findings under the substantial evidence

2    standard.   8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS,

3    494 F.3d 281, 289 (2d Cir. 2007).    The Court reviews de novo

4    questions of law and the application of law to undisputed

5    fact.   See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

6        Due process in removal proceedings requires “notice” to

7    the alien “of the nature of the charges and a meaningful

8    opportunity to be heard,”   Pierre v. Holder, 588 F.3d 767, 776

9    (2d Cir. 2009) (internal quotation mark omitted), and that the

10   proceedings be otherwise fundamentally fair, Xiao Ji Chen v.

11   U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir. 2006),

12   vacated on other grounds, 471 F.3d 315 (2d Cir. 2006); see

13   also Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).

14   Even where an alien shows that due process was denied, he can

15   prevail only if he shows “some cognizable prejudice fairly

16   attributable to the challenged process.”     Garcia-Villeda v.

17   Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal quotation

18   marks omitted).

19       In this case, we conclude that the IJ did not violate

20   Gaitan-Cortez’s due process rights by failing to provide him

21   with an opportunity to cross-examine the Border Patrol agent

22   who prepared his Form I-213 Record of Deportable/Inadmissible



                                    3
1    Alien, on which the IJ based his conclusion that Petitioner

2    was    removable.          We   have   held          that   “a   Form     I-213    is

3    presumptively reliable and can be admitted in deportation

4    proceedings without giving the alien the opportunity to cross-

5    examine the document’s author, at least when the alien has put

6    forth no evidence to contradict or impeach the statements in

7    the report.”        See Felzcerek v. INS, 75 F.3d 112, 117 (2d Cir.

8    1996).      Although Petitioner argues that he was not afforded an

9    opportunity to present such evidence, he was served with the

10   I-213 form at his first hearing, in September 2007.                         At his

11   second hearing, nearly a year later in August 2008,                         the IJ

12   asked Petitioner’s attorney if he had “any evidence . . . to

13   even suggest that the contents of the [Form I-213] did not

14   relate to [Petitioner] or that the information is erroneous or

15   that it was the result of coercion or duress?”                            App. 86.

16   Petitioner’s attorney responded that he did not, but explained

17   that   he    had   filed    a   Freedom       of     Information    Act    (“FOIA”)

18   inquiry to discover whether Gaitan-Cortez had previously filed

19   any applications for legal immigration status.                     However, when

20   the    IJ asked if he had any evidence of the inquiry, his

21   attorney replied that he did not.                     Therefore, Petitioner’s

22   assertion to this Court that the IJ did not allow him an

23   opportunity        to   come    forward       with    evidence     to   rebut     the


                                               4
1    contents of the I-213 is without merit.              The assertion that

2    Petitioner’s attorney challenged the factual accuracy of the

3    I-213's   contents     is   similarly     unsupported.           See,   e.g.,

4    Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (unsworn

5    statements   of   an   attorney   are    not   evidence).        Petitioner

6    presented    no   actual    evidence    that   he   had   ever    filed   any

7    application for relief, or that his attorney had filed the

8    FOIA request as he claimed.             Accordingly, Gaitan-Cortez’s

9    assertion that the IJ violated his due process rights fails.

10       We    have    carefully    considered      Petitioner’s       remaining

11   arguments and conclude that they are without merit.                 For the

12   foregoing reasons, the petition for review is DENIED.

13

14                                     FOR THE COURT:
15                                     Catherine O’Hagan Wolfe, Clerk
16
17




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