Jaime Lopez-Chavez v. Immigration and Naturalization Service

Citations: 259 F.3d 1176; 2001 Daily Journal DAR 7773; 2001 Cal. Daily Op. Serv. 6309; 2001 U.S. App. LEXIS 16800Docket: 99-70251

Court: Court of Appeals for the Ninth Circuit; July 26, 2001; Federal Appellate Court

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Jaime Lopez-Chavez petitioned the Ninth Circuit to review a Board of Immigration Appeals (BIA) decision declaring him deportable to Mexico for entering the U.S. without inspection. The court held that a properly authenticated INS form WR-424 is admissible in deportation hearings to establish alienage, as it contains the same critical information as the previously accepted INS form I-213. Lopez-Chavez was arrested alongside others on July 2, 1992, and interviewed by INS Officer Miera, who completed the WR-424 based on Lopez-Chavez's admissions regarding his identity and entry into the U.S. During the deportation hearing, Lopez-Chavez claimed the Fifth Amendment privilege against self-incrimination concerning his alienage. The INS submitted the WR-424 into evidence, which was authenticated by Officer Miera, who testified that it reflected Lopez-Chavez's statements. The Immigration Judge (IJ) ruled the WR-424 established Lopez-Chavez's alienage, shifting the burden to him to prove lawful entry, which he failed to do, resulting in a finding of deportability, although voluntary departure was granted.

On appeal, the BIA affirmed the admission of the certified WR-424, citing Miera's testimony that it was an official document completed in the routine performance of his duties, containing information from Jaime Lopez-Chavez. The BIA determined that the names on the form sufficiently identified Lopez-Chavez, and that the WR-424, combined with the agent's testimony, established alienage, shifting the burden to Lopez-Chavez to prove the time, place, and manner of his entry into the U.S. The BIA dismissed the appeal.

The standard of review for the BIA's deportability findings requires that they be supported by reasonable, substantial, and probative evidence. Lopez-Chavez contended that the WR-424 and INS agent testimony did not meet the clear and convincing evidence standard for establishing deportability. The burden initially lies with the INS to prove alienage by clear, convincing evidence. If the INS meets this burden, the onus shifts to the alien to demonstrate lawful entry. Failure to do so results in a presumption of unlawful presence and deportability.

The BIA referenced prior rulings affirming that an authenticated I-213 form can establish alienage. The WR-424, although smaller than an I-213, was deemed to contain equivalent information and reliability, provided it was properly completed without coercion, and certified by the INS District Director. The WR-424 was certified correctly, and there was no evidence of coercion in obtaining the information. Although the WR-424 might be admissible under the Federal Rules of Evidence, deportation hearings are not strictly bound by these rules, provided due process is observed, which was upheld in this case.

The WR-424 indicated that Lopez-Chavez was a Mexican national who entered the U.S. without inspection, and this evidence went unchallenged. Consequently, a prima facie case of alienage was established, shifting the burden to Lopez-Chavez, who failed to provide evidence of lawful entry, resulting in a clear and convincing case for his deportability.

Petition for review denied unanimously without oral argument. The case falls under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) due to the deportation proceedings initiated by the INS on July 10, 1992, and the BIA's decision on February 8, 1999. The appeal was timely filed on March 10, 1999, within the required 30 days following the BIA's ruling. A dissenting opinion noted that Officer Miera could not recall the source of information for the WR-424 form, but the majority disagreed, asserting that Miera testified the information came directly from Lopez-Chavez. The background details reveal that on July 2, 1992, 150 striking drywall workers were arrested in Mission Viejo, California, with 86 identified as possibly undocumented. Of these, 74 were released to INS custody, leading to the identification of 52 as undocumented. Lopez-Chavez, one of the workers, had his deportation proceedings based on the WR-424 form prepared by Miera, who claimed he did not arrest Lopez-Chavez and had no specific recollection of the interview. Miera clarified that the WR-424 is a general-purpose form used for various purposes, including interviews of aliens in custody, and indicated that there is no specific form for county jail interviews.

Miera testified that he had experience in approximately eighty deportation proceedings but could not recall ever testifying about preparing a WR-424 Form, though he had testified about I-213 Forms. In preparing Lopez-Chavez's WR-424, Miera left critical spaces blank, including the arrest time and place, later admitting he 'erroneously' omitted this information. Miera incorrectly filled in the date of the interview in the arrest section and claimed he had 'no idea' regarding Lopez-Chavez's arrest details. He acknowledged he was not the actual 'Apprehending Officer' but included his name based on agency instructions. The WR-424 lacked a signature from the preparer and did not identify the source of the information, raising concerns about its reliability. Miera could not recall the specifics of a computer printout from the Orange County Sheriff's Department, which might have informed the WR-424. During questioning, Miera confirmed that Lopez-Chavez did not state he entered 'EWI' (entered without inspection), although he speculated that Lopez-Chavez might have mentioned entering through the mountains or beach. Lopez-Chavez's attorney objected to the introduction of an I-213 at a previous hearing due to issues with the source and reliability of the information, leading to a scheduled hearing to question INS officials. Ultimately, the INS opted to introduce the WR-424 instead of the I-213 at a subsequent hearing, but the record does not clarify why the I-213 was abandoned, suggesting it may have been deemed unreliable. Lopez-Chavez objected to the WR-424 on several grounds, including the lack of a source identification and the absence of recognition by the BIA or appellate courts as sufficient evidence to prove alienage. The author argues that the majority's decision overlooked these critical objections and the implications of the evidence presented.

The governing standard for admitting evidence in deportation proceedings is whether it is probative and fundamentally fair, as established in Espinoza v. INS. In that case, the I-213 Form was deemed probative of entry and admissible unless the alleged alien proved it was untrustworthy. The I-213 was considered trustworthy because it was properly prepared and signed by an officer. However, if a petitioner presents reliable evidence contradicting the I-213, the burden shifts to the government to demonstrate the I-213's reliability.

The text critiques the majority’s attempt to apply this standard to WR-424 Forms, asserting two main errors. First, the WR-424 in question was generated under circumstances that indicated its untrustworthiness, thus making it inadmissible. Second, even if the WR-424 were deemed trustworthy, it should not suffice on its own to meet the INS's burden of proving alienage by clear and convincing evidence.

Multiple factors contribute to the WR-424's untrustworthiness: the preparer, Epifano Miera, could not recall the interview or identify Lopez-Chavez; the form lacked a signature and preparer's identification; Miera was unsure if he filled it out based on Lopez-Chavez's answers or a computer printout from the Orange County Sheriff's Department; and he made several errors on the form, including incorrect arrest details and misidentifying himself as the apprehending officer. Miera also acknowledged that Lopez-Chavez never claimed to have entered without inspection, raising further doubts about the form's reliability. These factors collectively demonstrate the WR-424's lack of trustworthiness in this case.

The majority's assertion that the WR-424 was likely admissible under the Federal Rule of Evidence is incorrect. Although immigration judges are not strictly bound by evidentiary rules during deportation hearings, precedent from Espinoza mandates that when a petitioner questions the reliability of an I-213, the government must provide evidence to validate the document's reliability. In this instance, the government failed to do so, leading to the inappropriate admission of the WR-424. Even if the WR-424 were ideally prepared and thus admissible, it would still be inadequate to prove alienage by "clear and convincing" evidence, as established in Woodby v. INS, which requires the INS to demonstrate deportability with clear, convincing, and unequivocal evidence. The WR-424, unlike the I-213 which is a formal INS document, is not official and is used locally rather than nationally. It resembles an index card and lacks crucial elements, such as a section for an INS agent to clarify an individual's immigration status or a signature from the preparer verifying its accuracy. Additionally, the WR-424 is not intended for use in non-immigration related arrests, yet INS agents are instructed to utilize it for various purposes beyond its intended scope.

The INS's use of the WR-424 form does not conform to standard recordkeeping practices, as it provides significantly less information than the I-213 form, which can reliably establish alienage by clear and convincing evidence. The INS appears to use the WR-424 only when the I-213 fails to prove alienage. A dissenting opinion highlights concerns regarding the reliability of the WR-424, particularly given that Officer Miera, who filled it out, could not recall any details about his interview with Lopez-Chavez. Miera acknowledged that his testimony was largely based on the WR-424 itself rather than independent recollection, raising doubts about the authenticity of the information attributed to Lopez-Chavez. The inability of Miera to confirm the source of the information on the WR-424 undermines its credibility as evidence of alienage.