Petition for Review of an Order of the Board of Immigration Appeals. No. A078-869-280.
The opinion of the court was delivered by: Tinder, Circuit Judge
Before POSNER, EVANS, and TINDER, Circuit Judges.
Raul Barradas, a Mexican citizen and lawful permanent resident of the United States, was found removable from the United States on the grounds that he knowingly attempted to smuggle illegal aliens into the country. He appealed the decision of the Immigration Judge ("IJ") to the Board of Immigration Appeals, which affirmed. Barradas now petitions this court for relief, arguing that the IJ incorrectly concluded that the government met its heavy burden of proof, improperly admitted evidence without allowing him the opportunity to cross-examine its preparer, and impermissibly denied him due process by compelling him to testify and then excessively interrogating him. For the reasons stated below, we deny the petition for review.
Raul Barradas, a Mexican citizen, became a lawful permanent resident of the United States on September 18, 2001. Barradas made his home in Monroe, Wisconsin, but made frequent trips back to Mexico. Before one of Barradas's trips in 2005, a family friend, Alfredo Meyer, gave him two United States birth certificates bearing the names "Nicole Lynne Leighty" and "Jacob Brian Leighty" and asked him to bring the children they named, allegedly Meyer's own, back to Wisconsin from Mexico. Barradas traveled to Mexico with his wife and his own two children to visit his brother. While there, he somehow acquired two Mexican children, Anyyensy Meyer Gonzalez, age seventeen, and Eduardo Doranetes Ortiz, age eleven. (The record is unclear at best regarding how Anyyensy and Eduardo came to travel with Barradas; Barradas's testimony indicates that unnamed people brought the children to him at some point during his visit.)
When Barradas tried to re-enter the United States at the Hidalgo, Texas port of entry on October 8, 2005 with his wife, his two children, and Anyyensy and Eduardo in tow, he was stopped by Customs and Border Patrol agents Roel DeLaFuente and Mark Latigo. Barradas presented his resident alien card and the Leighty birth certificates to the agents, who became suspicious and ordered secondary inspections (in-depth interviews) of everyone in Barradas's van. Officer DeLaFuente recorded the information gleaned from the secondary inspections on a Form I-213 Record of Deportable/Inadmissible Alien and authored an accompanying Form I-831 Customs and Border Patrol memorandum.
According to those reports, Barradas told the agents that he knew Anyyensy was born in Mexico and that he had coached both children to memorize the information on the Leighty birth certificates. He claimed he was transporting the children to their father in Wisconsin and would receive $1000 per child for bringing them back. Anyyensy and Eduardo told the agents their real names and essentially reiterated the story Barradas had told the agents: that he gave them U.S. birth certificates and coached them to say that they were U.S. citizens named Nicole Lynne Leighty and Jacob Brian Leighty.
Following the secondary inspections, Anyyensy and Eduardo were returned to Mexico, Barradas's wife and children were permitted to return to the United States, and Barradas was detained at La Villa Detention Center and charged with violating 8 U.S.C. § 1325(a)(3) and 18 U.S.C. § 2.
On October 10, 2005, mere days after his apprehension in Hidalgo and the same day on which his charging document was completed,*fn2 Barradas pleaded guilty to alien smuggling. Because no detention space was available at the Port Isabel Service Processing Center, Barradas was paroled into the United States on October 11, 2005. On October 18, 2005, Officer DeLaFuente supplemented the Forms I-213 and I-831 with information about Barradas's conviction.
On October 19, 2005, Officer DeLaFuente initiated removal proceedings against Barradas and issued him a Notice to Appear ("NTA").*fn3 The NTA alleged that Barradas (1) was not a U.S. citizen or national; (2) was a native and citizen of Mexico; (3) applied for admission to the United States at Hidalgo as a returning lawful permanent resident; and (4) was convicted of smuggling illegal aliens into the United States on October 10, 2005. On the basis of those allegations, Barradas was charged as subject to removal from the United States pursuant to 8 U.S.C. § 1182(a)(6)(E)(i), which denies admissibility to aliens "who at any time knowingly ha[ve] encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law . . . ."*fn4
At his January 26, 2007 hearing before an IJ, at which he was represented by counsel, Barradas admitted the first three allegations of the NTA but denied the conviction and consequently his removability. The Department of Homeland Security ("DHS" or "the government") offered the NTA, documentation of Barradas's permanent resident status, and a copy of the October 8, 2005 criminal complaint into evidence without objection from Barradas. Barradas objected to the DHS's other proffered pieces of evidence, Officer DeLaFuente's Form I-213 and accompanying Form I-831 memorandum, on the grounds that he lacked an opportunity to cross-examine Officer DeLaFuente, their creator. The IJ admitted both pieces of evidence over Barradas's objections. The government did not offer into evidence any official court record of Barradas's conviction for alien smuggling.
The IJ invited the DHS to question Barradas about the fourth allegation in the NTA (alleging an October 10, 2005 conviction for alien smuggling). Barradas objected to the questioning, claiming that the DHS could not "meet [its] burden by questioning him in this hearing." The IJ stated that Barradas had "no right to stand mute at this particular time," and informed Barradas that he would "draw an adverse inference" from Barradas's silence or refusal to take the stand. Barradas then took the stand and testified that on October 8, 2005, he applied for admission at the Hidalgo port of entry, along with his wife, his two daughters, and two children identified by birth certificates as Nicole Lynne Leighty and Jacob Brian Leighty. He claimed that he believed that the children were U.S. citizens and that he had been asked by their father, Alfredo Meyer, to return them to Wisconsin. When pressed by the DHS and the IJ, he said he thought the children were "eight, nine, or ten," and testified that he did not know why he had agreed to pick them up. He denied the Form I-213's allegations that he coached the children to memorize the Leighty birth certificate information, that he knew that they were not U.S. citizens, and that he was promised $1000 upon their safe return to Wisconsin.
The IJ interrupted the DHS's questioning to clarify Barradas's testimony about how the children came to be with Barradas and how he acquired the Leighty birth certificates. The IJ also asked Barradas to explain what happened following the border inspections. During the IJ's questioning, Barradas denied familiarity with the criminal complaint arising from the October 8, 2005 Hidalgo apprehension, but stated that he pleaded guilty to a charge in federal court around that time because he had "no choice" but to do so. The IJ confirmed that Barradas knew he had been charged with alien smuggling and that he had pleaded guilty to that charge.
After the government and the IJ questioned Barradas, Barradas's attorney did not examine him further.
The IJ immediately issued an oral decision in which he rejected Barradas's testimony that he did not know the children were not U.S. citizens as incredible and relied instead upon the information contained in the Form I-213 completed by Officer DeLaFuente. The IJ noted that the record did not contain a court record of Barradas's conviction, but found, based on Barradas's credible testimony about his guilty plea and the other evidence in the record, that Barradas engaged in alien smuggling and "knew or should have known" that the children he attempted to bring into the United States were not citizens. The IJ concluded that the DHS had established removability under 8 U.S.C. § 1182(a)(6)(E)(i) by clear and convincing evidence and ordered Barradas removed to Mexico.
Barradas timely appealed the IJ's order to the Board of Immigration Appeals ("BIA"). On August 27, 2008, the BIA affirmed the IJ's removal decision, finding that it was supported by evidence of record that established Barradas's knowing encouragement, inducement, assistance, abetting, or aiding of two undocumented minor aliens to try to enter the United States. In a footnote to its per curiam order, the BIA noted that 8 U.S.C. § 1182(a)(6)(E)(i) requires an individual to act "knowingly" and observed that the IJ misstated the mens rea requirement as "knew, or should have known." The BIA found this error to be harmless in light of Barradas's testimony that he pleaded guilty to alien smuggling. The BIA found no evidence in the record to support Barradas's allegations that the IJ violated his due process rights.
Barradas now petitions this court for relief and renews the arguments he made before the BIA. His arguments logically condense into two primary allegations: insufficient evidence and violation of due process rights. First, he alleges that the DHS failed to prove his removability by "clear, unequivocal, and convincing evidence" as required by Woodby v. INS, 385 U.S. 276, 286 (1966). He contends that the DHS did not introduce sufficient evidence of his conviction to prove the factual allegation of the conviction asserted in his NTA. This contention is entwined with one of his subsidiary arguments: that the IJ improperly admitted and relied upon the Forms I-213 and I-831. Second, Barradas alleges that the IJ violated his due process rights by compelling his ...