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Gutierrez-Berdin v. Holder

August 19, 2010


Petitions for Review of Orders of the Board of Immigration Appeals. No. A099-025-599.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED MAY 25, 2010

Before FLAUM, ROVNER, and WOOD, Circuit Judges.

Petitioner is an alien who has been apprehended by agents of Immigration and Customs Enforcement ("ICE") for illegal entry into the United States and placed in removal proceedings. He seeks to characterize certain aspects of these proceedings as constitutional defects that deprive him of his right to due process of law. We deny in part and dismiss in part his petition for review.

I. Background

On May 22, 2006, ICE agents arrested petitioner Cecilio Gutierrez-Berdin at his parents' home in Aurora, Illinois, and served him with a Notice to Appear ("NTA") in Immigration Court to commence removal proceedings. The NTA charged that petitioner was removable under 8 U.S.C. § 1182(a)(6)(A)(i) because he was an alien present in the United States without being admitted or paroled. The NTA bore the heading "U.S. Department of Justice, Immigration and Naturalization Service." It was signed by Robin Buckley as the issuing officer in Chicago, Illinois. The NTA ordered the recipient to appear before an Immigration Judge at a time and date to be set in the future.

Following the arrest, ICE agents filled out a U.S. Department of Justice Record of Deportable/Inadmissible Alien, known as Form I-213, which explained that appellant, an associate member of the Aurora faction of the Surenos 13 gang, was rounded up as part of Operation Dismantle. Form I-213 further specified that Gutierrez-Berdin, a native and citizen of Mexico, entered the United States on foot on February 1, 1998, twenty miles west of El Paso, Texas. He had previously been apprehended on the border and voluntarily removed to Mexico on January 11, 1998. Form I-213 also stated that after agents arrested Gutierrez-Berdin at midnight on May 22, 2006, he resisted arrest and "was hostile and uncooperative with all officers . . . regarding the whereabout of" his uncle, Jose Verdin.

Petitioner requested a bond hearing before an Immigration Judge ("IJ"). As part of its response, on June 12, 2006, the government submitted a copy of the NTA to Immigration Judge George Katsivalas. Gutierrez-Berdin submitted his high school diploma and transcript; a picture of himself in a cap and gown; a letter from the pastor of Saint Nicholas Catholic Church stating that Gutierrez-Berdin attends mass every Sunday with his parents; a Certificate of Achievement dated October 20, 1999; and a certificate for completion of middle school at Simmons Middle School, dated June 7, 1999.

The IJ ordered Gutierrez-Berdin released upon posting an $8,000 bond. Per petitioner's request, IJ Katsivalas also continued the case for additional attorney preparation. On November 17, 2006, Gutierrez-Berdin appeared before Immigration Judge O. John Brahos, represented by his current counsel. Petitioner advised the court that he would not be admitting any of the allegations against him and moved to suppress and exclude Form I-213, the NTA, and their contents on the ground that the government procured the evidence in violation of GutierrezBerdin's Fourth and Fifth Amendment rights. Along with the motion, petitioner presented an affidavit where he swore that ICE agents lacked a warrant for his arrest. Petitioner also stated that during the arrest, the agents "mistreated me. They yelled at me and handcuffed my hands behind my back, and lifted them up, and pushed me out the door, it felt like my arms were going to break. I was very afraid. They had guns. They did not advise me of my rights." The affidavit went on to state:

3. When they [the ICE agents] took me to Broadview [Staging Area and Detention Center], two officers demanded that I sign some papers, but I refused. A man yelled at me and said "Sign the fucking papers. You don't have any rights." A woman yelled at me, and also swore at me and told me to sign the papers.

4. I was not charged with committing a crime.

5. I have never been arrested before the arrest I have described.

6. I am married to a United States citizen, and I am the father of a United States citizen child. I believe that my rights were violated. I was treated like an animal.

On petitioner's motion, the IJ continued the case and held a substantive hearing on April 19, 2007. The government planned to present only the NTA, Form I-213, and testimony by Gutierrez-Berdin to make their case, but petitioner moved to suppress the form on the grounds that it was filed in violation of local timing rules and was procured through unconstitutional means. Immigration Judge Brahos denied petitioner's motion to suppress, explaining that even if taken at face value, GutierrezBerdin's self-serving affidavit "fails to describe miscon-duct egregious enough to justify suppression." The IJ then went to find petitioner, who refused to answer any questions for fear of self-incrimination, a removable alien on the basis of the combination of a negative inference drawn from his silence with the uncontroverted contents of the presumptively reliable Form I-213.*fn1 Brahos determined that the level of detail in the I-213 permitted the inference that Gutierrez-Berdin himself provided the information relating to his alienage, and that petitioner did not present enough evidence to show that the government obtained the information in the I-213 through coercion or duress.

The IJ then dismissed as meritless Gutierrez-Berdin's objection that the form bears the heading of INS, which no longer exists, explaining that in 6 U.S.C. ยงยง 552(d) and 557, the statute transferring INS removal functions to the Department of Homeland Security ("DHS") specifically provided that any reference to INS in regulations and delegations of authority should be read to mean DHS. Finally, although the IJ drew an adverse inference from Gutierrez-Berdin's refusal to testify, he acknowledged that ...

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