Antonio Garcia-Virrey v. Loretta E. Lynch , 606 F. App'x 370 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANTONIO GARCIA-VIRREY, ) No. 12-70213
)
Petitioner, ) Agency No. A090-065-343
)
v. ) MEMORANDUM*
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 1, 2015**
Pasadena, California
Before: FERNANDEZ and BEA, Circuit Judges, and MARQUEZ,*** District
Judge.
Antonio Garcia-Virrey, a citizen of Mexico, petitions for review of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Rosemary Marquez, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
Board of Immigration Appeals’ (BIA) denial of his application for cancellation of
removal. See 8 U.S.C. § 1229b(a). We deny the petition.
Garcia asserts that his procedural due process rights1 were violated when the
Immigration Judge (IJ) admitted a police report into evidence at his cancellation
hearing without requiring cross-examination of the officer who prepared the
report.2 See Vilchez v. Holder, 682 F.3d 1195, 1198–99 (9th Cir. 2012); Espinoza
v. INS, 45 F.3d 308, 310–11 (9th Cir. 1995); Cunanan v. INS, 856 F.2d 1373,
1374–75 (9th Cir. 1988); see also Cinapian v. Holder, 567 F.3d 1067, 1074 (9th
Cir. 2009). We disagree. There was no evidence that the officer’s own
observations (for example the strong odor of alcohol) were not trustworthy. Thus,
those would be admissible under the Federal Rules of Evidence,3 which are more
stringent than the rules applied in these proceedings.4 More importantly, it does
not appear that the BIA5 relied on any improper material in that report. Thus, even
1
See Torres-Aguilar v. INS, 246 F.3d 1267, 1270–71 (9th Cir. 2001).
2
We note that the IJ did not deny cross-examination; he indicated that he
would resolve the issue if it was raised later in the proceedings. It was not raised.
3
See Fed. R. Evid. 803(8)(A).
4
See, e.g., Cinapian, 567 F.3d at 1074; Espinoza, 45 F.3d at 310; Cunanan,
856 F.2d at 1374.
5
See Vilchez, 682 F.3d at 1199.
2
if there were some unfairness,6 the error, if any, was not prejudicial.7
Petition DENIED.
6
See id.
7
See id.
3