NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 14 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBELO BARBOZA-CRUZ, No. 19-72197

Petitioner, Agency No. A200-974-046

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted September 14, 2023 Pasadena, California

Before: SCHROEDER, FRIEDLAND, and MILLER, Circuit Judges. Partial Dissent by Judge FRIEDLAND.

Robelo Barboza-Cruz, a native and citizen of Mexico, petitions for review of

a decision of the Board of Immigration Appeals dismissing his appeal from an

immigration judge’s order of removal. We dismiss the petition in part and deny it

in part.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. As a preliminary matter, Barboza-Cruz argues that the immigration court

lacked jurisdiction because the notice to appear failed to specify the time or place

of his initial removal hearing. That argument is foreclosed by United States v.

Bastide-Hernandez, 39 F.4th 1187, 1192–93 (9th Cir. 2022) (en banc).

2. Barboza-Cruz also argues that the immigration judge violated his due

process rights by relying upon evidence presented by the government—a Form I-

213, offered as evidence of alienage—that was not properly authenticated. We

have jurisdiction under 8 U.S.C. § 1252(a)(1).

“The Federal Rules of Evidence do not apply in removal proceedings.”

Hernandez v. Garland, 52 F.4th 757, 766 (9th Cir. 2022); see also Espinoza v. INS,

45 F.3d 308, 309–10 (9th Cir. 1995) (explaining that authentication may be

achieved “through [any] recognized procedure, such as those required by [agency]

regulations or by the Federal Rules of Civil Procedure”). Even so, the proceedings

in this case were consistent with those rules. Federal Rule of Evidence 901

provides that a public record is authenticated if a party “produce[s] evidence

sufficient to support a finding,” Fed. R. Evid. 901(a), that the “purported public

record or statement is from the office where items of this kind are kept,” Fed. R.

Evid. 901(b)(7)(B). “A party ‘need only make a prima facie showing of

authenticity so that a reasonable juror could find in favor of authenticity or

identification.’” United States v. Estrada-Eliverio, 583 F.3d 669, 673 (9th Cir.

2 2009) (quoting United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996)).

Here, government counsel provided “the original signed [Form] I-213,” and

counsel for Barboza-Cruz offered no reason to doubt that it was the original

document. A reasonable factfinder presented with an original, signed, and

unrebutted Form I-213 from the Department of Homeland Security—the agency

that produced the document—could conclude that the document was, in fact, “from

the office where items of this kind are kept.” Fed. R. Evid. 901(b)(7); see also Fed.

R. Evid. 901(b)(4) (noting that authenticity can be inferred from “[t]he appearance,

contents, substance, internal patterns, or other distinctive characteristics of the

item, taken together with all the circumstances”).

Barboza-Cruz relies on Iran v. INS for the proposition that due process

requires that all documentary evidence admitted in removal hearings be properly

authenticated. 656 F.2d 469, 472–73 (9th Cir. 1981). But in Espinoza, we

distinguished Iran on the ground that it involved a document that “was not

prepared by the government, as is a Form I–213.” See Espinoza, 45 F.3d at 310.

We reasoned that “additional validation”—such as “affidavits or the testimony of

the preparer”—is not necessarily required in cases involving the admission of

Form I-213s. Id. As we have explained, this case involves a Form I-213 that was

prepared by the government, and the government submitted not merely a copy, but

the original document. And while Barboza-Cruz objected to admitting the

3 document, he did not suggest either that it was not what it purported to be or that

its contents were wrong.

Because the original Form I-213 was reliable and properly admitted, the

government met its burden of establishing Barboza-Cruz’s removability by “clear

and convincing evidence.” B.R. v. Garland, 26 F.4th 827, 840 (9th Cir. 2022)

(quoting 8 C.F.R. § 1240.8(a)).

3. Finally, Barboza-Cruz argues that the Board did not give “full

consideration . . . to all factors” when it denied his application for cancellation of

removal. We lack jurisdiction to review the Board’s discretionary denial of

cancellation of removal, 8 U.S.C. § 1252(a)(2)(B)(i); Romero-Torres v. Ashcroft,

327 F.3d 887, 890 (9th Cir. 2003), so we dismiss the petition in relevant part.

PETITION DISMISSED in part and DENIED in part.

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FILED

Barboza-Cruz v. Garland, No. 19-72197 NOV 14 2023

MOLLY C. DWYER, CLERK

FRIEDLAND, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS

I agree with the majority’s analysis as to the immigration court’s jurisdiction

and the Board’s discretionary denial of cancellation of removal. I dissent,

however, because the immigration judge violated Barboza-Cruz’s due process

rights by admitting the Form I-213 into evidence without authentication.

We ordinarily review an immigration judge’s decision to admit or exclude

evidence on authentication grounds for an abuse of discretion, but when the

immigration judge’s decision is “based on a purely legal ground, we review de

novo.” Vatyan v. Mukasey, 508 F.3d 1179, 1182 (9th Cir. 2007); cf. United States

v. Mateo-Mendez, 215 F.3d 1039, 1041-42 (9th Cir. 2000).

Here, the immigration judge admitted the Form I-213 because the judge

believed it was “self-authenticating.” That was a legal error. When a record is

self-authenticating, it “require[s] no extrinsic evidence of authenticity in order to

be admitted.” Fed. R. Evid. 902. Federal Rule of Evidence 902 establishes the

requirements that a record (including a record purporting to be an original) must

meet to be self-authenticating, and the Form I-213 did not meet those

requirements. See id. The majority has not pointed to any other rule, regulation, or

procedure that suggests the form was self-authenticating. Instead, the majority

holds that a reasonable factfinder could conclude that there was sufficient evidence that the form was authentic under Rule 901—even though there is no basis in the

record suggesting the immigration judge (the only potential factfinder here)

reached such a conclusion.

Because the form was not self-authenticating, the Government was required

to offer some evidence of its authenticity. Our decision in Iran v. INS, 656 F.2d

469 (9th Cir. 1981), establishes that what the Government did here was

insufficient. In Iran, the government introduced a Form I-506 to show that the

petitioner was not authorized to remain in the United States. Id. at 470, 472. To

admit the form, “the [government’s] trial attorney handed the document to the

immigration judge and told him what it purported to be, [and] the immigration

judge stated, in effect, that no proof of authentication was necessary.” Id. at 473.

We held that that procedure was insufficient to authenticate the form because the

trial attorney never provided any evidence that the form was what it purported to

be. Id. And we rejected the government’s argument that the document was

authenticated merely because the name on the document matched the name of the

petitioner. Id.

Here, the Government’s attorney did exactly what we rejected in Iran: the

attorney “handed the document to the immigration judge and told [her] what it

purported to be, [and] the immigration judge stated, in effect, that no proof of

authentication was necessary.” Id. Under Iran, that procedure was clearly

2 insufficient. As in Iran, the Government attorney did not offer anything relevant to

the form’s authenticity. He did not profess to be a records custodian or to know

how the file had been maintained. See, e.g., 8 C.F.R. § 287.6(a) (establishing that

a domestic official record can be authenticated “by a copy attested by the official

having legal custody of the record or by an authorized deputy”). And he did not

offer any evidence that the form was not altered after it was completed or that the

form was even part of Barboza-Cruz’s file. See Iran, 656 F.2d at 473.

The majority argues that Iran is not controlling because Espinoza v. INS, 45

F.3d 308 (9th Cir. 1995), subsequently suggested that Iran does not apply to

documents created by the government. But Espinoza did not overrule Iran. In

Espinoza, we held that the government properly authenticated a Form I-213

because, unlike here, the form was certified by INS’s Los Angeles district director.

Id. at 310. We reiterated our holding from Iran that immigration forms may be

authenticated through any “recognized procedure,” and we explained that the

director’s certification satisfied Iran because it met the requirements imposed by

8 C.F.R. § 287.6(a) and Federal Rule of Civil Procedure 44. Espinoza, 45 F.3dat

309-10.

We then distinguished the case from Iran. Id. at 310. First, we explained

that Iran was distinguishable because the government there “failed to introduce

any proof of authenticity, or any proof from which the immigration judge could

3 infer that the form was a true document.” Id. (quoting Iran, 656 F.2d at 473). The

Government also failed to do so here, so this distinction does not undermine the

controlling status of Iran. We then stated, “In addition, the challenged evidence

[in Iran] was the affidavit of a non-government witness.” Id. But Iran did not in

fact involve the “affidavit of a non-government witness”; the challenged evidence

in Iran was a Form I-506, “Application for Change of Nonimmigrant Status.”

Iran, 656 F.2d at 470.1 And Espinoza did not explain why this purported fact

would have been significant when Iran involved no evidence of authenticity at all.

Moreover, elsewhere in the opinion, Espinoza makes clear that Iran applies

to Form I-213’s, even though they are created by the government. See, e.g.,

Espinoza, 45 F.3d at 310 (explaining that certification of the Form I-213 by the

INS’s Los Angeles district director “satisfies Iran”). At most, what Espinoza said

to distinguish Iran suggests that documents created by the government can be

authenticated through a certification that meets the requirements of 8 C.F.R.

§ 287.6(a) and Federal Rule of Civil Procedure 44. There is no such certification

here.

Because our precedent establishes that the Form I-213 was admitted in error,

I respectfully dissent.

1 It appears that Espinoza may have mixed up the facts of Iran with those of Baliza v. INS, 709 F.2d 1231, 1233-34 (9th Cir. 1983), which Espinoza also discussed, see Espinoza, 45 F.3d at 310.

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