Cecilio Gutierrez-Berdin v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1465 & 09-3526
C ECILIO G UTIERREZ-B ERDIN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A099-025-599
A RGUED M AY 25, 2010—D ECIDED A UGUST 19, 2010
Before F LAUM, R OVNER, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. 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 pro-
ceedings 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.
2 Nos. 09-1465 & 09-352
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 re-
movable 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 Naturaliza-
tion 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. Depart-
ment 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 uncoopera-
tive with all officers . . . regarding the whereabout of” his
uncle, Jose Verdin.
Petitioner requested a bond hearing before an Immi-
gration Judge (“IJ”). As part of its response, on June 12,
Nos. 09-1465 & 09-3526 3
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 prepara-
tion. 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 govern-
ment procured the evidence in violation of Gutierrez-
Berdin’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
4 Nos. 09-1465 & 09-352
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 govern-
ment 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. Immigra-
tion Judge Brahos denied petitioner’s motion to suppress,
explaining that even if taken at face value, Gutierrez-
Berdin’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 ques-
tions 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-213.1 Brahos deter-
1
In a subsequent written order, dated May 3, 2007, IJ Brahos
summarized the form as stating that
(continued...)
Nos. 09-1465 & 09-3526 5
mined 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 gov-
ernment 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. §§ 552(d)
and 557, the statute transferring INS removal functions
to the Department of Homeland Security (“DHS”) specifi-
cally 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 acknowl-
edged that silence alone is not sufficient to establish a
prima facie case of removability under Matter of Guevara,
20 I. & N. Dec. 238 (1991).
1
(...continued)
the respondent is a native and citizen of Mexico; he was first
apprehended by Border Patrol agents on January 11, 1988
and was voluntarily removed to Mexico; he re-entered the
United States at or near El Paso, Texas on or about Feb. 1,
1998 without inspection; he was arrested at his residence by
ICE agents on May 22, 2006; and at that time, he admitted
that he was present in the United States illegally and lacked
any “immigration papers. ”
Petitioner was three years old in 1988, but the IJ’s reference
to that year was a simple typographical error that does not
affect the outcome of this case.
6 Nos. 09-1465 & 09-352
Finding that the government satisfied its burden of
proof, the IJ then considered whether respondent could
show that he was in the United States lawfully. Since
Gutierrez-Berdin stayed silent and his affidavit said
nothing about lawful admission, IJ Brahos found him
removable as charged. He then went on to deny peti-
tioner’s request for voluntary departure.
Petitioner filed a timely appeal from the order to the
Board of Immigration Appeals (“BIA”). He requested
that a three-member panel rule on the issues, but on
February 6, 2009, the BIA issued a one-member decision
wholly adopting and affirming the IJ’s decision. It denied
Gutierrez-Berdin’s request for three-member review
because petitioner’s arguments did not fall into any of
the categories entitled to such a procedure under 8 C.F.R.
§ 1003.1(e)(6). The BIA found no evidence of bias or
partiality in the IJ, concluded that he did not abuse his
discretion in denying voluntary departure, and rejected
petitioner’s attempts to portray the NTA as defective.
Finally, the BIA held that removal to Mexico did not
amount to cruel and unusual punishment prohibited by
the Eighth Amendment. Subsequently, the BIA denied
Gutierrez-Berdin’s timely motions to reconsider and
reopen the matter. He now appeals from both orders.
II. Discussion
Where, as here, the Board of Immigration Appeals
adopts the decision of the Immigration Judge as a whole,
we review the original IJ decision. Rodriguez Galicia v.
Gonzales, 422 F.3d 529, 535-36 (7th Cir. 2005). This case
Nos. 09-1465 & 09-3526 7
implicates four separate standards of review. First, we
scrutinize de novo the IJ’s determination that admission
of Form I-213 did not violate petitioner’s due process
rights because it is a question of law. Boci v. Gonzales,
473 F.3d 762, 768 (7th Cir. 2007). Second, we give great
deference to the IJ’s factual findings, deeming them
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary . . . .” 8 U.S.C.
§ 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). That is, we reverse the agency’s deci-
sion “only if the record compels a different result, and
not simply because we are convinced that we would
have decided the case differently.” Hassan v. Holder, 571
F.3d 631, 641 (7th Cir. 2009). Third, we review the
Board’s denial of a motion to reopen or reconsider for
abuse of discretion. Kebe v. Gonzales, 473 F.3d 855, 857
(7th Cir. 2007). In doing so, we take into account the
“strong public interest in bringing litigation to a close,”
INS v. Abudu, 485 U.S. 94, 107 (1988), and thus disfavor
reopening. See Selimi v. Ashcroft, 360 F.3d 736, 739 (7th
Cir. 2004). Accordingly, we uphold the decision of the
BIA unless it was “made without a rational explanation,
inexplicably departed from established policies, or rested
on an impermissible basis such as invidious discrim-
ination against a particular race or group.” Awad v.
Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003). Finally, we
lack jurisdiction to review discretionary decisions by
the Department of Justice with respect to requests for
voluntary departure. See 8 U.S.C. § 1229c(f); Sofinet v.
INS, 196 F.3d 742, 748 (7th Cir. 1999).
8 Nos. 09-1465 & 09-352
Petitioner sets forth a litany of complains about the IJ’s
decision, but these can be condensed into four main
contentions: that the IJ erred in denying petitioner’s
motion to suppress Form I-213; that the government
did not adequately prove petitioner’s alienage; that
some aspect of petitioner’s arrest and subsequent de-
portation hearings violated his right to due process of
law; and that the BIA’s denial of petitioner’s motion to
reopen violated his “right to due process as well as his
right to equal protection.” The rest of his arguments are
either redundant or not properly presented in this appeal.
A. Motion to Suppress
The IJ did not err in denying Gutierrez-Berdin’s mo-
tion to suppress Form I-213. Since the Fourth Amend-
ment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unrea-
sonable searches and seizures,” but does not specify an
enforcement mechanism for its violations, the Supreme
Court has articulated the so-called exclusionary rule.
Said rule, “when applicable, forbids the use of improp-
erly obtained evidence at trial” and seeks “to safeguard
Fourth Amendment rights generally through its deter-
rent effect.” Herring v. United States, 129 S. Ct. 695, 699
(2009) (citations omitted). Exclusion is a relatively
narrow remedy, however. It “is used in only a subset of
all constitutional violations—and excessive force in
making an arrest or seizure is not a basis for the exclu-
sion of evidence.” Evans v. Poskon, 603 F.3d 362, 364 (7th
Cir. 2010).
Nos. 09-1465 & 09-3526 9
More importantly, removal proceedings are civil, not
criminal, and the exclusionary rule does not generally
apply to them. See INS v. Lopez-Mendoza, 468 U.S. 1032,
1050-51 (1984); Krasilych v. Holder, 583 F.3d 962, 967 (7th
Cir. 2009). In Lopez-Mendoza, the Supreme Court left open
the possibility that the exclusionary rule may apply
where there have been “egregious violations of Fourth
Amendment or other liberties that might transgress
notions of fundamental fairness and undermine the
probative value of the evidence obtained.” 468 U.S. at
1050-51; see also Martinez-Camargo v. INS, 282 F.3d 487,
492 (7th Cir. 2002). Gutierrez-Berdin’s claims do not
reach this level. Even taken at face value, petitioner’s
self-serving affidavit alleges what can best be charac-
terized as very minor physical abuse coupled with ag-
gressive questioning. Questions and verbal demands
that a person sign documents are not themselves
searches and seizures that could violate the Fourth
Amendment, Muehler v. Mena, 544 U.S. 93, 101 (2005);
Martinez-Camargo, 282 F.3d at 493; United States v. Childs,
277 F.3d 947, 949 (7th Cir. 2002) (en banc). This observa-
tion is especially true here, where such entreaties
proved unsuccessful because petitioner refused to com-
ply. As for potential physical misconduct, handcuffing an
alien who resisted arrest is certainly not the “egregious”
behavior contemplated by Lopez-Mendoza.
Form I-213 is a presumptively reliable administrative
document. Since petitioner did not demonstrate any
inaccuracy in its contents, the IJ acted appropriately in
considering it as evidence of alienage. See Barradas v.
Holder, 582 F.3d 754, 763 (7th Cir. 2009) (“Absent any
10 Nos. 09-1465 & 09-352
indication that a Form I-213 contains information that
is manifestly incorrect or was obtained by duress, the
BIA has found the Form to be inherently trustworthy
and admissible as evidence. We have agreed with that
position.”) (citing In re Ponce-Hernandez, 22 I. & N. Dec.
784, 785 (B.I.A. 1999)); Rosendo-Ramirez v. INS, 32 F.3d
1085, 1089 (7th Cir. 1994).
Gutierrez-Berdin also argues that he was arrested
without a warrant, but the record does not support this
contention. Petitioner then claims that the NTA and
accompanying warrant were issued by the now-defunct
Immigration and Naturalization Service (“INS”),
which was part of the Department of Justice, and thus
could not authorize action by ICE agents, who fall under
the umbrella of the Department of Homeland Security
and actually carried out the arrest. The IJ correctly
found this assertion to be vacuous based on both ex-
plicit statutory transfer of authority from the INS to
the DHS, 6 U.S.C. §§ 552, 557, and our own caselaw.
Sosnovskaia v. Gonzales, 421 F.3d 589, 591 n.2 (7th Cir.
2005); Diallo v. Ashcroft, 381 F.3d 687, 690 n.1 (7th Cir.
2004). In any event, warrantless arrests of suspected
illegal aliens are permissible in some situations, see 8
C.F.R. § 287.3 (2010), and there is no evidence that the
government violated procedures associated with such
an arrest in a way prejudicial to the petitioner in this
case. See Martinez-Camargo, 282 F.3d at 492 (“[T]he
Supreme Court has held that where an administra-
tive regulatory violation does not adversely affect a peti-
tioner’s substantive rights an exclusionary remedy is not
available.”). The fact that the NTA left the time and date
Nos. 09-1465 & 09-3526 11
of a deportation hearing to be determined at a future
date did not render it defective because subsequent
documents set out the requisite information. Dababneh
v. Gonzales, 471 F.3d 806, 809 (7th Cir. 2006).
Finally, to the extent that Gutierrez-Berdin’s affidavit
could be read to mean that ICE agents did not ade-
quately notify him of his rights, such an error would not
make otherwise voluntary statements inadmissible. See
Lopez-Mendoza, 468 U.S. at 1039. There is no evidence
of coercion in the record or the motion to suppress, so
the IJ did not offend the constitution by admitting
Form I-213 into evidence. Appellant concludes by
arguing that the IJ erred in admitting the form because
it was part of the record during the bond hearing, but
the relevant regulations do not prevent the IJ from con-
sidering the same pieces of evidence during both stages
of adjudication. A breach of the applicable procedures
would be harmless here anyway, because petitioner’s
counsel had months to review the 2-page Form I-213.
B. Due Process Right to a Hearing
Gutierrez-Berdin next argues that IJ Brahos demon-
strated bias and irreverence of a degree sufficient to
deprive him of due process guaranteed by the Fifth
Amendment. See Plyer v. Doe, 457 U.S. 202 (1982). We
have long held that “if an applicant in an immigration
court has not received a meaningful opportunity to be
heard, she has been denied due process, and we must
grant her petition and remand for further proceedings.”
Floroiu v. Gonzales, 481 F.3d 970, 974 (7th Cir. 2007).
12 Nos. 09-1465 & 09-352
“To obtain relief, the petitioner must produce some
evidence indicating that the denial of due process ‘actu-
ally had the potential for affecting the outcome’ of the
proceedings.” Id.Petitioner’s claim that the IJ was impermissibly partial to
the government, essentially amounts to an ad hominem
attack on the judge. That is, Gutierrez-Berdin cites two
cases where we criticized IJ Brahos for his conduct in
immigration proceedings and argues that his behavior
in the present case was similarly problematic. Our re-
view of the record shows this contention to be baseless.
Petitioner states that the fact that the IJ overruled all of
petitioner’s objections demonstrates a disregard for the
evidence on behalf of the judge. Petitioner also points
to the following “offensive” comment by the IJ as an
indicator of his pro-government bias:
But as a -as you recall, alienage is not suppressible.
All right. So we have an alien before the Court and
as you recall we—using as a euphemism, not tending
at all to insult the respondent [sic]. Once the INS or
the Department of Homeland Security, in the
stream, locates a alien [sic] and they pick him out of
the stream, they don’t throw him back into the stream.
Unsurprisingly, Gutierrez-Berdin does not attempt to
explain which aspect of the remark he considers to be
inappropriate. When the BIA reviewed this argument,
it determined that IJ Brahos did not intentionally charac-
terize Gutierrez-Berdin as a fish and that any uninten-
tional connotation was not enough to render the hearing
ineffective. We agree.
Nos. 09-1465 & 09-3526 13
The two cases where we found the IJ’s behavior to be
so inappropriate as to violate the Due Process Clause
stand in stark contrast to the matter before us today.
First, in Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008), IJ
Brahos gave short shrift to arguments made by an
HIV-positive petitioner that if he was deported to
Nigeria, he would be imprisoned pursuant to a decree
requiring all Nigerian citizens convicted of drug crimes
abroad to serve five-year sentences (“Decree 33”). Bosede
also introduced evidence that the death rate of
HIV-positive individuals in Nigerian custody is high
because of poor nutrition, bad living conditions, and
trivial access to medical care; State Department reports
in the record showed that these circumstances have led
to the death of at least one HIV-positive person in
prison and that all prisoners in Nigeria are severely
mistreated. Finally, Bosede testified that when he inde-
pendently traveled to Nigeria in 2003, the government
discovered his infection status, detained him on arrival,
and released him only on the condition that he stay in
a hotel they specified. Fearing for his life, he ended up
bribing an official to get out of the country undetected.
The predicate offenses for Bosede’s deportation were
two instances of possession of sub-gram quantities of
cocaine and one retail-theft conviction for drinking
liquor at a grocery store prior to paying for it. Nonethe-
less, the IJ issued a removal order finding, without elab-
oration, that Bosede’s convictions were “particularly
serious crimes” that rendered petitioner, a married father
of two, ineligible for cancellation of removal. The IJ then
went on to deny petitioner’s Convention Against Torture
14 Nos. 09-1465 & 09-352
claim and state that he would order removal even with-
out a statutory bar to contest. The IJ found irrelevant
evidence showing that Nigerian prisons were “decrepit”
to the point that an HIV-positive prisoner could face
the possibility of death and the decree requiring impris-
onment would likely lead to Bosede’s arrest upon
arrival because petitioner did not prove he would “auto-
matically be detained” following deportation. The IJ
also relied on Bosede’s testimony that he was able to
bribe his way out of Nigeria in 2003 to conclude that
petitioner may have “other options available to avoid
detention.”
We reversed, citing the IJ’s “cavalier attitude towards”
petitioner’s claims and failure to adequately explain
why he considered the two drug offenses to be partic-
ularly serious crimes. We also criticized IJ Brahos for
disregarding undisputed evidence that Decree 33 would
land petitioner in prison. Finally, we were “appalled
that the IJ would rest his decision on the absurd proposi-
tion that Bosede could evade imprisonment, mistreat-
ment, and possibly death by approaching his jailers and
trying to buy his way out.” 512 F.3d at 951. Our shock
stemmed from the fact that our prior decisions expressly
labeled such logic inappropriate. See, e.g., Oyekunle v.
Gonzales, 498 F.3d 715, 717 (7th Cir. 2007).
Immigration Judge Brahos’s conduct in the administra-
tive phase of Castilho de Oliveira v. Holder, 564 F.3d 892(7th Cir. 2009), also featured substantial shortcomings.
There, the IJ considered an asylum application from
a 20-year-old Brazilian man whose father was assas-
sinated before he could become a whistle-blower about
Nos. 09-1465 & 09-3526 15
a political fundraising scheme. Following his father’s
murder, Castilho de Oliveira spent most of his childhood
in hiding, moving from place to place. A few years later,
petitioner’s mother and younger sister escaped to the
United States on a tourist visa and stayed illegally, leaving
Castilho de Oliveira behind in the care of an aunt. As
petitioner testified at his removal hearing, however,
the men seeking to punish his father’s intransigence
eventually located his aunt and warned her that Castilho
de Oliveira would meet the same fate as his father. At
that point, petitioner fled to America and requested
asylum.
The IJ denied this relief on the grounds that Castilho de
Oliveira’s account was not credible. Though petitioner
submitted State Department reports that described the
Brazilian criminal justice system as dysfunctional and
the country’s criminal investigators as unwilling to
pursue charges against powerful individuals, the IJ
found that if petitioner’s father was actually murdered
for political reasons, prosecutors would have put the
perpetrators behind bars. The IJ also determined that
because Castilho de Oliveira never reported the threats
he received to the police, his testimony was not credible
even though petitioner explained that he feared police
would do nothing to help and could actually aggravate
the situation.
The IJ’s ruling in Castilho de Oliveira suffered from other
serious flaws. For example, IJ Brahos refused to accept
copies of newspaper articles about the murder of peti-
tioner’s father and the subsequent investigation into
16 Nos. 09-1465 & 09-352
evidence on the grounds that these documents were not
properly authenticated. We explained that “[t]here is no
justification for such a requirement. Under the Federal
Rules of Evidence, documents purporting to be news-
paper articles are self-authenticating, and in immigra-
tion proceedings—where the rules of evidence do not
apply—evidentiary standards are generally more lax.
Absent evidence of forgery, alteration, or some other
reason to doubt their authenticity, the IJ was not entitled
to completely disregard the newspaper articles.” 564 F.3d
at 897. Finally, we expressed shock at the IJ’s behavior
during questioning:
Judge Brahos repeatedly stopped both Castilho de
Oliveira and his expert witness to ask irrelevant—and
in some cases entirely inappropriate—questions. For
example, the IJ demanded to know the witnesses’
religious beliefs—and pursued this line of ques-
tioning at some length with each witness—even
though Castilho de Oliveira’s claims were not based
on religious persecution. The IJ questioned Castilho
de Oliveira about whether his half-sister was “born
out of wedlock,” an utterly irrelevant inquiry. The IJ
derailed the expert’s testimony to discuss the totally
inappropriate and irrelevant topic of whether
Castilho de Oliveira might be infertile—or, as the
judge indelicately put it, whether Castilho de Oliveira
might “shoot blanks.”
564 F.3d at 899.
While we described comments of this nature as “wholly
inappropriate,” we determined that they “did not ulti-
Nos. 09-1465 & 09-3526 17
mately have the effect of preventing Castilho de Oliveira
from putting on his case.” Rather, they suggested “a larger
problem of apparent bias on the part of the IJ,” which,
combined with “the IJ’s ultimate failure to engage with
the evidence in the record while resting his decision
on speculation and irrelevancies—leaves the impression
that the IJ entered the hearing with his mind already
made up.” Id. at 899-900.
By contrast, in the present case, Immigration Judge
Brahos conducted an orderly hearing bereft of any legal
mistakes. He properly examined evidence and gave
due credence to petitioner’s points of view. IJ Brahos’s
metaphor about the flow of illegal immigration into
this country does not come anywhere near the conduct
that we deemed sufficient to cast doubt on the fairness
of the hearing in either Bosede or Castilho de Oliveira.
We thus conclude that the government did not violate
petitioner’s due process rights.
C. Proof of Alienage
We have repeatedly held that there is no presumption
of innocence in immigration proceedings. Chavez-Raya v.
INS, 519 F.2d 397 (7th Cir. 1975). Moreover, since the
“purpose of deportation is not to punish past transgres-
sions but rather to put an end to a continuing violation
of the immigration laws,” “[t]he ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding
is never itself suppressible as a fruit of an unlawful
arrest, even if it is conceded that an unlawful arrest,
search, or interrogation occurred.” Lopez-Mendoza, 468
18 Nos. 09-1465 & 09-352
U.S. at 1039. Accordingly, we have long found permissible
negative inferences drawn by immigration judges from
a person’s refusal to answer questions about their
origin during a hearing. Mireles v. Gonzales, 433 F.3d 965,
968 (7th Cir. 2006); see also United States ex rel. Bilokumsky
v. Tod, 263 U.S. 149, 157 (1923) (holding that there is
no “presumption of citizenship comparable to the pre-
sumption of innocence in a criminal case. . . . To
defeat deportation it is not always enough for the
person arrested to stand mute at the hearing and put
the Government upon its proof.”).
In light of this precedent, the somewhat sparse record
before the IJ was nonetheless sufficient for the govern-
ment to meet its burden of making a prima facie
showing of alienage. Form I-213 explains that Gutierrez-
Berdin is a citizen of Mexico, establishing foreign ori-
gin. Petitioner does not dispute this fact, or argue that
any other part of the document is factually wrong. If
Gutierrez-Berdin was present in the United States
legally, he could have certainly stated as much without
being concerned about self-incrimination, so his silence
on the matter reasonably should lead to a negative in-
ference. After the government presented evidence of
alienage, the burden of proving lawful presence in the
U.S. shifted to petitioner. 8 U.S.C. § 1229a(c)(2)(B). Since
Gutierrez-Berdin did not provide any evidence of
legal status, the IJ appropriately found petitioner to be
a removable alien.
Nos. 09-1465 & 09-3526 19
D. Denial of Motion to Reopen and Reconsider
In a last-ditch effort to change the outcome of the
appeal, Gutierrez-Berdin contends that the BIA erred
when it denied his motion to reopen and reconsider
his case. In this respect, we again find his arguments
unpersuasive. His claim that the Board’s use of “we” in
a single-member decision prejudiced him has no merit
or support from legal authority. Petitioner’s argument
that the agency erred by failing to consider Mexico’s
problem with drug violence fares no better because he
did not demonstrate that there was a reasonable possi-
bility or clear probability that he personally would be
persecuted on account of a protected characteristic. 8
U.S.C. §§ 1101(a)(42), 1158(b)(1)(B); Pelinkovic v. Ashcroft,
366 F.3d 532, 539 (7th Cir. 2004) (“We note, as we have
many times before, that crisis conditions common to all
citizens of the affected country do not present a prima
facie case warranting reopening of an asylum claim.”).
The Board did not abuse its discretion in denying peti-
tioner’s motion.
III. Conclusion
For the foregoing reasons, we D ENY in part and D ISMISS
in part this petition for review.
8-19-10