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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12212
Non-Argument Calendar
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Agency No. A087-187-598
FRANCISCO NUNES DE SALES,
a.k.a. Francisco Nunes,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 28, 2019)
Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges.
PER CURIAM:
Francisco Nunes De Sales seeks review of the decision of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order
finding him removable for procuring an adjustment of status by fraud, pursuant to
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the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(A). De Sales
argues that: (1) the IJ and BIA violated his due process rights by allowing the sworn
statement of his ex-wife into evidence without bringing her as a witness so he could
cross-examine her; and (2) the BIA did not have substantial evidence drawn from
the record to support his removal. After thorough review, we deny the petition.
Generally, we review the BIA’s decision as the final agency decision. Ruiz
v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007). However, where the BIA adopts
the IJ’s reasoning, we also review the decision of the IJ to the extent of that
agreement. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009).
We review de novo constitutional challenges, including due process
violations. Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138, 1143 (11th Cir. 2010) (per
curiam). We review factual determinations, including findings of removability, for
substantial evidence. Adefemi v. Ashcroft,
386 F.3d 1022, 1026-27 (11th Cir.
2004). Under the substantial evidence test, we view the record in the light most
favorable to the agency’s decision, drawing all reasonable inferences in favor of that
decision.
Id. at 1027. Accordingly, we must affirm the BIA’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.
Id. Put differently, the decision of the BIA and IJ can only
be reversed if the evidence compels a reasonable fact finder to find otherwise. Chen
v. U.S. Att’y Gen.,
463 F.3d 1228, 1230-31 (11th Cir. 2008) (per curiam).
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First, we are unpersuaded by De Sales’s due process claim. Petitioners in
removal proceedings are entitled to Fifth Amendment protections to assure that they
are “given notice and an opportunity to be heard.”
Lapaix, 605 F.3d at 1143. To
prove a due process violation, the petitioner must show that he was “deprived of
liberty without due process of law and that the purported errors caused [him]
substantial prejudice.” Alhuay v. U.S. Att’y Gen.,
661 F.3d 534, 548 (11th Cir.
2011) (per curiam) (quotations omitted). To establish substantial prejudice, the
petitioner must show that, “in the absence of the alleged violations, the outcome of
the proceeding would have been different.”
Id. (quotations omitted).
“When considering the fairness of admitting hearsay,” we look to “the
challenged evidence’s reliability and trustworthiness.” Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1299 (11th Cir. 2015). Within the immigration context, we’ve “not
yet recognized anything resembling a right to confrontation rooted in the Due
Process Clause.”
Id. at 1300 n.23. Evidence in deportation proceedings “need only
be probative and its use fundamentally fair, so as not to deprive an alien of due
process of law.” Matter of Velasquez, 19 I&N Dec. 377, 380 (BIA 1986).
Here, the IJ and BIA properly admitted as evidence the sworn statement of De
Sales’s ex-wife, Olga Puerto Hurtado, despite De Sales’s claim that his due process
rights were violated because he was not able to cross-examine her. For starters,
we’ve never recognized a right to confrontation in the removability context.
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Indrawati, 779 F.3d at 1300 n.23. Moreover, the record reveals that Hurtado’s sworn
statement was reliable, trustworthy, probative and fair.
Id. at 1299; Velasquez, 19
I&N at 380. As the IJ found, the sworn statement had “significant” probative weight
(it spoke directly to the bona fide nature of De Sales’s marriage), and it was reliable
and trustworthy (Hurtado made a statement against her interest by admitting to a
crime).
De Sales further argues that the IJ impermissibly shifted the burden to him by
finding that the government did not need to call Hurtado as a witness and that De
Sales himself could have called her, but we disagree. As De Sales admits in his
briefs, the government had originally listed Hurtado as a witness before removing
her as a witness, which means that De Sales had notice that she could play a role in
the case. The record also reflects that De Sales also had notice that it was her sworn
statement that provided the grounds for his case, and that the IJ indicated that he
would have allowed De Sales to call her as his witness.
Overall, the proceedings before the IJ plainly provided De Sales with
sufficient notice and opportunity to be heard regarding his claims -- he was
represented by counsel, and he was given an opportunity to bring evidence to his
defense, to testify on his behalf, and to cross-examine the officer who obtained the
sworn statement. See
Lapaix, 605 F.3d at 1143. Thus, because De Sales had notice
and the opportunity to call Hurtado, and because Hurtado’s statement was against
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her penal interest and highly probative, De Sales was not deprived of due process.
Indrawati, 779 F.3d at 1299; Velasquez, 19 I&N at 380.
We are also unconvinced by De Sales’s claim that the BIA’s removal decision
was not supported by substantial evidence. An alien is deportable if he is
inadmissible at the time of his adjustment of status for engaging in fraud or willfully
misrepresenting a material fact. 8 U.S.C. §§ 1227(a)(1)(A), 1182(a)(6)(C)(i). The
government bears the burden to establish through clear and convincing evidence that
the alien is deportable. 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a).
The “civil nature” of removal proceedings eliminates the “provision which
forbids drawing an adverse inference from the fact of standing mute.” Immigration
& Naturalization Serv. v. Lopez-Mendoza,
468 U.S. 1032, 1043-44 (1984)
(quotation omitted). When confronted with evidence against him, “a respondent
who remains silent may leave himself open to adverse inferences, which may
properly lead in turn to a finding a deportability against him.” Matter of Guevara,
20 I&N Dec. 238, 241 (BIA 1990).
In this case, the BIA properly relied on reasonable, substantial, and probative
evidence from the record as a whole to conclude that De Sales was removable for
his sham marriage with Hurtado. Specifically, the IJ and BIA gave these reasons,
all supported by the record, to reach the conclusion that the marriage was a sham:
(1) Hurtado’s handwritten sworn statement that she entered into a sham marriage in
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exchange for a Buick and that she and De Sales never truly lived together, Officer
Mateo’s testimony that he personally observed Hurtado write the statement, and the
lack of evidence showing that Hurtado lied on the statement; (2) De Sales’s failure
to list the residence he purported to live in with Hurtado during their marriage when
asked about all his prior addresses; (3) the lack of time between his marriage and
application for status and the lack of time between his approved adjustment and his
divorce; (4) De Sales’s failure to list in his application for adjustment a son he had
fathered with a woman other than Hurtado, which possibly was an attempt to avoid
scrutiny of his application; and (5) De Sales’s invocation of the Fifth Amendment
against self-incrimination when asked why he married Hurtado, if he had ever lived
at his purported marital home, and what his marital status was on his 2009 and 2010
tax returns.
Indeed, adverse inferences based on silence are permissible in removal
proceedings, as they are civil in nature rather than criminal, and “may properly lead
in turn to a finding a deportability against him.”
Lopez-Mendoza, 468 U.S. at 1043-
44; Guevara, 20 I&N at 241. The fact that De Sales responded to most of the
government’s questions, and chose only to remain silent in the face of questions
whose answers would prove the fraudulent nature of his marriage provides a strong
inference. On this record, we cannot say that the IJ and BIA’s finding of an adverse
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inference in De Sales’s choice to remain silent was unsupported or could not have
been used to make a finding of deportability against him. Guevara, 20 I&N at 241.
Accordingly, substantial evidence in the record as a whole supports the
conclusion of the IJ and BIA that De Sales was removable for his sham marriage
with Hurtado.
Adefemi, 386 F.3d at 1027. While we might have weighed the
evidence and come to a different conclusion, the evidence does not compel a
different finding.
Chen, 463 F.3d at 1230-31. We deny the petition for review.
PETITION DENIED.
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