NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CESAR OMAR LOPEZ DUARTE, AKA No. 17-71087 Cesar A. Lopez, Agency No. A205-466-438 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted October 6, 2020 Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District Judge. Dissent by Judge RAWLINSON

Petitioner Cesar Omar Lopez Duarte, a former resident of San Francisco,

petitions for review of the Board of Immigration Appeals (BIA)’s decision

dismissing his appeal of the Immigration Judge (IJ)’s denial of his motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. suppress a Form I-213. We have jurisdiction under 8 U.S.C. § 1252(a). We

review de novo questions of constitutional law. Khan v. Holder, 584 F.3d 773, 776

(9th Cir. 2009) (citing Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir. 2005)). For

the reasons explained below, we grant the petition and remand for further

proceedings.

1. The government contends that Lopez Duarte failed to exhaust his

argument that the IJ’s reliance on a “US-VISIT” form violated his due process

rights under the Fifth Amendment and 8 U.S.C. § 1229a, therefore limiting our

jurisdiction on review. See 8 U.S.C. § 1252(d)(1). We disagree. To satisfy the

exhaustion requirement in § 1252(d)(1), a party need only “put the BIA on notice”

in his appeal from an IJ’s order. Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th

Cir. 2018) (quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)).

Although a “‘petitioner cannot satisfy the exhaustion requirement by making a

general challenge’ to the BIA’s decision, the petitioner ‘need not . . . raise the

precise argument below.’” Id. at 960 (quoting Garcia v. Lynch, 786 F.3d 789, 793

(9th Cir. 2015) (per curiam)) (emphasis and alteration in original). Lopez Duarte

argued to the BIA that the IJ failed to conduct an adequate factual inquiry into the

origin of the information on the “US-VISIT” form and erred in making factual

findings concerning the form that were not supported by the record. He also

argued that evidence obtained in violation of due process and the agency’s own

2 regulations must be suppressed. Thus, Lopez Duarte “articulate[d] each essential

part of the contention he now raises.” Garcia, 786 F.3d at 793.

2. The IJ’s reliance on the “US-VISIT” form to deny Lopez Duarte’s

motion to suppress, without providing him an opportunity to confront and

challenge the document, violated due process. See Grigoryan v. Barr, 959 F.3d

1233, 1240-41 (9th Cir. 2020). We have repeatedly held that individuals in

removal proceedings must be provided a full and fair opportunity to confront

evidence offered by the government. Id.; Bondarenko v. Holder, 733 F.3d 899,

906-07 (9th Cir. 2013); Cinapian v. Holder, 567 F.3d 1067, 1074-75 (9th Cir.

2009).

The “US-VISIT” form was an exhibit to the government’s opposition to the

motion to suppress and was marked as an untimely filing. The form itself

contained numerous blank fields. The government did not offer any affidavits or

testimony explaining how the form was created. Following the appearance of the

parties at the hearing, the IJ announced his decision to deny the motion to suppress,

relying solely on the “US-VISIT” form. The IJ then proceeded to ask the parties

regarding any relief Lopez Duarte would be seeking, indicating that his ruling on

the motion to suppress was final.1 Because the IJ failed to provide Lopez Duarte

1 In context, the IJ’s questions regarding how Lopez Duarte “would like to proceed,” and whether there was “a type of relief” that Lopez Duarte would be seeking concerned applications for relief. These questions arose after the IJ had

3 any opportunity to confront or challenge the government’s “US-VISIT” form, and

then relied on that evidence to deny Lopez Duarte’s motion to suppress, the IJ

denied Lopez Duarte a fair hearing. See Grigoryan, 959 F.3d at 1240-41;

Bondarenko, 733 F.3d at 906-07.

Lopez Duarte has also shown that he was prejudiced by the due process

violation, as the “outcome of the proceeding may have been affected by the alleged

violation.” Grigoryan, 959 F.3d at 1240 (quoting Colmenar v. INS, 210 F.3d 967,

971 (9th Cir. 2000)). The IJ’s primary reason for denying Lopez Duarte’s motion

to suppress was—according to the IJ—independent evidence of his alienage noted

on the “US-VISIT” form. On the basis of that unchallenged evidence, the IJ

sustained the government’s factual allegations and concluded that Lopez Duarte

was removable. We are persuaded that the outcome of the motion to dismiss may

have been different had Lopez Duarte been afforded an opportunity to contest the

form. See Grigoryan, 959 F.3d at 1240-42; Bondarenko, 733 F.3d at 907-08.

Accordingly, for the above reasons, we grant Lopez Duarte’s petition for

review and remand to the agency for further proceedings consistent with this

announced his decision and were not meaningful opportunities for Lopez Duarte to re-open the motion to suppress to challenge the US-VISIT form. See Grigoryan, 959 F.3d at 1240 (concluding that the IJ failed to “afford[] [petitioners] a meaningful opportunity to rebut [the report’s] allegations”).

4 disposition. 2

Petition for review GRANTED and REMANDED.

2 In light of this disposition, we need not address the merits of Lopez Duarte’s motion to suppress the Form I-213. We note, however, that to the extent the IJ relied on Lopez Duarte’s bond counsel’s statement as an alternative basis for establishing alienage, the IJ erred. See Joseph v. Holder, 600 F.3d 1235, 1241 (9th Cir. 2010) (concluding evidence from a bond hearing should not be considered in a removal hearing).

5

FILED

Lopez Duarte v. Garland, No. 17-71087 MAY 21 2021 Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent from the majority’s view that Petitioner established a

violation of due process. Although the case cited by the majority, Grigoryan v.

Barr, 959 F.3d 1233 (9th Cir. 2020), sets forth the proper test for establishing a due

process violation, the majority failed to properly apply that test to the facts of this

case. To prevail on a due process challenge, the Petitioner must demonstrate: (1)

“that the challenged proceeding was so fundamentally unfair that [he was]

prevented from reasonably presenting [his] case” and (2) “substantial prejudice

[which] is established when the outcome of the proceeding may have been

affected by the alleged violation.” Id. at 1240 (citations and internal quotation

marks omitted). Petitioner failed in both respects.

The majority contends that Petitioner did not have an adequate opportunity

to “confront and challenge” the US-VISIT report1 introduced into evidence by the

government to establish Petitioner’s non-citizenship. However, the record reflects

that Petitioner had ample opportunity to present any objection to the evidence

1 The majority refers to this as the US-VISIT form. It is actually not a form at all, but a computer report of data collected when a person encounters a port of entry or law enforcement to enable the United States to establish the identity of persons who enter the United States. See United States Visitor and Immigrant Status Indicator Technology Program (US–VISIT), 69 Fed.Reg. 53,318–01 (Aug. 31, 2004). 1 proffered by the government, including a challenge to the US-VISIT report, but

Petitioner simply failed to take advantage of that opportunity.

There were at least five junctures during the removal proceedings when the

opportunity was available for Petitioner to challenge the US-VISIT report. First, in

response to Petitioner’s motion to suppress the I-213, which motion was filed only

sixteen (16) days before the repeatedly continued removal proceedings, the

government provided a copy of the US-VISIT report to Petitioner eight (8) days

before the proceedings. Petitioner, however, did not file any objection to the US-

VISIT report at that opportunity.

Petitioner’s second opportunity was provided at the continued removal

proceedings when the Immigration Judge (IJ) referred to “independent evidence of

alienage [the US-VISIT report] that is not suppressible.” Following the reference

and after hearing the IJ describe the evidence as “not suppressible,” counsel for

Petitioner responded to the IJ’s inquiry about how counsel’s “client [would] like to

proceed” by mentioning only suppression of the I-213, with absolutely no mention

of any challenge to the US-VISIT report.

Petitioner’s third opportunity came when the IJ reminded Petitioner’s

counsel that the motion to suppress only “reserv[ed] appeal of that decision.” The

IJ then inquired whether there was “a type of relief” that Petitioner would be

2 seeking, to which counsel for Petitioner responded: “No. There isn’t.” This

inquiry provided another opening for counsel to challenge the US-VISIT report if

he so desired, but he failed to do so.

Petitioner’s fourth opportunity arose when the IJ reiterated to Petitioner’s

counsel that Petitioner “wasn’t going to seek any relief from removal other than his

motion to suppress.” Rather than displaying any inclination to challenge the US-

VISIT report, counsel merely responded, “That’s correct, Your Honor,” thereby

confirming Petitioner’s only objection was to the I-213 form.

Petitioner’s fifth opportunity was presented when the IJ inquired: “So if your

client isn’t going to seek any relief and there are no applications before the Court

then it appears I have no other alternative but to issue an order of removal. Do you

agree, Mr. Prasad?” Again, counsel failed to take this opportunity to raise an

objection to the US-VISIT report, and simply responded: “Yes, your Honor.”2

2 The majority argues that, “in context,” these “were not meaningful opportunities for Lopez-Duarte to reopen the motion to suppress to challenge the US-VISIT form.” However, exactly the opposite is true, because the IJ expressly referenced the motion to suppress the I-213 form when inquiring about the relief sought by Lopez-Duarte. The IJ’s inquiry referencing the motion to suppress presented the perfect opportunity for Lopez-Duarte to also seek suppression of the US-VISIT report. Counsel simply failed to take advantage of the opportunity. Moreover, counsel had eight days prior to the hearing to move to suppress the US- VISIT report or move for an extension of time to do so, but failed to take any action whatsoever. Under the majority’s framework, a meaningful opportunity (continued...) 3 The majority’s position would be more persuasive if Petitioner were

proceeding pro se. However, Petitioner was represented by counsel, who

recognized the distinction between challenging admission of the I-213 form and

challenging the US-VISIT report. It is readily apparent that counsel elected to

challenge the former, but not the latter. See Garcia v. I.N.S., 222 F.3d 1208, 1209

(9th Cir. 2000) (explaining that it “is a longstanding principle that . . . each party is

deemed bound by the acts of his lawyer-agent”) (citation and internal quotation

marks omitted).

The record reflects a choice by counsel on how to most effectively represent

his client. That Petitioner now has counsel that sees the case differently is not a

valid basis for finding a due process violation, especially when Petitioner’s prior

counsel failed to take advantage of numerous opportunities to object to the

admission of the US-VISIT report. See Ng Kai Ben v. Weedin, 44 F.2d 315, 317

(9th Cir. 1930) (explaining that when evidence is “admitted before an

administrative board without objection by the person against whom the evidence is

2 (...continued) required the IJ to prompt counsel to move to suppress the US-VISIT report. Due process and our precedent, however, do not support the majority’s view. See Hussain v. Rosen, 985 F.3d 634, 642 (9th Cir. 2021) (holding that while due process requires “impartial proceedings where petitioners may make their case,” petitioners “are not entitled to the IJ’s legal assistance in doing so”). 4 elicited, the court could not say that the appellant had been ordered deported

without due process of law because of the admission of such testimony to which he

made no objection”); see also Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th

Cir. 2006) (remarking that “we do not hesitate in holding that the BIA [Board of

Immigration Appeals] was justified in relying on the records” when petitioner

“made no objection in the Immigration Court to the admission of the records”).

Because Petitioner, through counsel, had multiple opportunities to challenge

admission of the US-VISIT report, but failed to capitalize on those opportunities,

there was no due process violation. See Grigoryan, 959 F.3d at 1240 (explaining

that due process requires “a reasonable opportunity to present and rebut evidence”)

(citations omitted).

To the extent the majority implies that Petitioner was denied due process

because the “government did not offer affidavits or testimony explaining how the

[US-VISIT report] was created,” such a contention is legally unsupportable. The

United States Supreme Court long ago determined that a violation of due process

cannot be established based on the admission of unauthenticated documents into

evidence. See United States ex rel. Vajtauer v. Commissioner of Immigration, 273

U.S. 103, 106 (1927) (explaining that in immigration proceedings “a want of due

process is not established by showing merely . . . that incompetent evidence was

5 received and considered”) (citation omitted); see also Singh v. Holder, 638 F.3d

1196, 1209 (9th Cir. 2011) (rejecting petitioner’s “argument that his due process

rights were violated when the IJ admitted his unauthenticated RAP sheet into

evidence”).

Cases relied upon by the majority do not support a violation of due process

in this case. Each of those cases involved a report prepared specifically to

challenge the authenticity of evidence offered by the petitioner in support of an

application for relief, but first provided to the petitioner at the removal proceeding.

The petitioners’ due process challenges were sustained because those reports were

admitted over petitioners’ objections, even though petitioners were unable to refute

the previously undisclosed reports without further independent investigation. See

Grigoryan, 959 F.3d at, 1236–37 (report containing local investigators’ suspicions

that petitioner’s documents had been altered); Bondarenko v. Holder, 733 F.3d

899, 904-05 (9th Cir. 2013) (report containing foreign hospital official’s

conclusion that petitioner’s medical records were fraudulent); Cinapian v. Holder,

567 F.3d 1067, 1072, 1075 (9th Cir. 2009) (report prepared by forensic document

examiner challenging petitioner’s documents). Here, the information on the US-

VISIT report was collected in the normal course of Petitioner’s entrance, unlike

reports created for the express purpose of challenging the authenticity of

6 petitioner’s evidence, with no presumed indicia of reliability. Petitioner had years

to collect evidence establishing that he was not subject to removal based on his

non-citizenship, and could have so testified himself. Instead, he sought to avoid

removal based solely on the government’s inability to establish non-citizenship,

but failed to object to the publicly maintained US-VISIT report that established his

non-citizenship and was provided in advance of the hearing. Petitioner simply

cannot assert a violation of due process when he failed to take advantage of the

process provided. See Haile v. Holder, 658 F.3d 1122, 1128 (9th Cir. 2011)

(holding that “the admission of [documents] did not violate due process,” and

petitioner’s “challenges to the [admitted documents were] unavailing” when

petitioner did “not cast doubt on the probative value or fairness of the evidence

presented, nor did she present any contrary evidence to challenge the reliability of

the” admitted documents) (citations and internal quotation marks omitted).

The majority also fails to point to any prejudice suffered by Petitioner. The

majority assumes, without any evidence in the record, that the outcome “may have

been different had [Petitioner] been afforded an opportunity to contest the [US-

VISIT report].” (emphasis added). However, as discussed, Petitioner had not one,

but five opportunities to challenge the US-VISIT report. More importantly,

Petitioner failed to meet his burden to establish that the “outcome of the

7 proceeding may have been affected.” Grigoryan, 959 F.3d at 1240. The

majority’s assumption cannot fulfill Petitioner’s burden.

The government authenticated the US-VISIT report by extensively outlining

the procedures for how information on the report is collected, stored and compiled,

and connecting that information to Petitioner. See Padilla-Martinez v. Holder, 770

F.3d 825, 833 (9th Cir. 2014) (explaining that “[a]dmissibility is generally

warranted so long as there is some sort of proof that the document is what it

purports to be”) (citation and internal quotation marks omitted); see also Las Vegas

Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (holding that documents

“could be authenticated by their distinctive characteristics” under Federal Rule of

Evidence 901(b)(4), and reversing decision that documents “must be authenticated

by a competent witness with personal knowledge of their authenticity”).3

In Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir. 1995), as amended on

denial of reh’g, we held that “information on an authenticated immigration form is

3 Even if the US-VISIT report was not properly authenticated, Petitioner waived any objection by failing to raise it to the IJ or the BIA. See Espinoza Ojeda v. United States Immigr. & Naturalization Serv., 419 F.2d 183, 186 n.2 (9th Cir. 1969) (noting that when “no objection was made at that time by counsel representing petitioner,” then “[a]ny objection to the entry of the statement into evidence was thus waived”); see also Rodas-Mendoza v. I.N.S., 246 F.3d 1237, 1240 (9th Cir. 2001) (holding that when petitioner “failed to raise [an] argument before the IJ or the BIA,” petitioner “has waived it and cannot raise it before this Court”). 8 presumed to be reliable in the absence of evidence to the contrary presented by the

alien.” “The burden of establishing a basis for exclusion of evidence from a

government record falls on the opponent of the evidence, who must come forward

with enough negative factors to persuade the court not to admit it.” Id. (citation

omitted). When the source of the information is a government official, petitioner

must show “strong evidence of unreliability” to exclude evidence. Id.

Petitioner cannot establish prejudice on this basis because he failed to

provide any evidence of unreliability, much less the “strong evidence of

unreliability” required to exclude the US-VISIT report. Petitioner points to certain

fields that were left blank, but does not dispute that he actually was involved in the

encounters documented in the US-VISIT report, on the dates and times identified.

Petitioner also does not dispute that the Fingerprint Identification Number (FIN)

and birth date on each entry is the same, or that the FIN and birth date accurately

reflect his fingerprints and birth date. He further does not dispute that the

photographs in the US-VISIT report are of him. Finally, Petitioner does not

provide any explanation why two separate government officials, ten years apart,

and at different locations, identified Petitioner as a National and Citizen of Mexico,

when those officials presumably had no “motive or interest other than to submit

accurate and fair reports.” Id. at 310.

9 The fact that different government officials left certain fields blank when

documenting separate encounters with Petitioner is evidence that they did not

collect the information during that encounter, rather than evidence of unreliability.

See id. (rejecting claim that immigration form was unreliable, even though the

form did “not indicate who filled it out and when” because petitioner failed to offer

“evidence to show that the form contains material errors”). Petitioner cannot show

prejudice because Petitioner, even now, has failed to establish any substantive

basis for excluding the US-VISIT report. See Morales-Izquierdo v. Gonzales, 486

F.3d 484, 495 (9th Cir. 2007), as amended (en banc) (holding that “to show

prejudice, [petitioner] must present plausible scenarios in which the outcome of the

proceedings would have been different”) (citation and internal quotation marks

omitted).

Because Petitioner failed to establish a due process violation or prejudice, I

respectfully dissent.

10