18-3587 Zavala Almendades v. Garland BIA Mulligan, IJ A212 948 056 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of May, two thousand twenty-one. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 VICTOR ZAVALA ALMENDADES, AKA 14 VICTOR ZAVALA, AKA VICTOR 15 ALMENDADES, 16 Petitioner, 17 18 v. 18-3587 19 NAC 20 MERRICK B. GARLAND, 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Ramya Ravishankar, Janet E. 26 Sabel, Adriene Holder, Hasan 27 Shafiqullah, Julie Dona, Deepa 28 Vanamali, The Legal Aid Society, 29 New York, NY. 1 FOR RESPONDENT: Cindy S. Ferrier, Assistant 2 Director; Sunah Lee, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is GRANTED.

11 Victor Zavala Almendades seeks review of a November 29,

12 2018 decision of the BIA affirming a March 15, 2018 decision

13 of an Immigration Judge (“IJ”) ordering his removal to El

14 Salvador and denying his applications for asylum, withholding

15 of removal, and protection under the Convention Against

16 Torture (“CAT”). In re Victor Zavala Almendades, No. A 212

17 948 056 (B.I.A. Nov. 29, 2018), aff’g No. A 212 948 056

18 (Immig. Ct. N.Y.C. Mar. 15, 2018). We assume the parties’

19 familiarity with the underlying facts and procedural history.

20 We have reviewed the IJ’s decision as modified and

21 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

22 Justice,

(2d Cir. 2005). We review the

23 agency’s legal conclusions de novo and its factual findings

24 under the substantial evidence standard. Yan Chen v.

2 1 Gonzales,

(2d Cir. 2005); Y.C. v. Holder,

2

(2d Cir. 2013). “[T]he administrative

3 findings of fact are conclusive unless any reasonable

4 adjudicator would be compelled to conclude to the

5 contrary[.]”

(b)(4)(B).

6 Alienage is a threshold issue in removal proceedings,

7 and the Department of Homeland Security (“DHS”) bears the

8 burden of establishing an individual’s alienage by clear and

9 convincing evidence. See

(c) (“In the case

10 of a respondent charged as being in the United States without

11 being admitted or paroled, the Service must first establish

12 the alienage of the respondent.”); Woodby v. INS,

276, 286 (1966) (setting the clear and convincing evidence

14 standard).

15 DHS charged Zavala Almendades for being removable as a

16 native and citizen of El Salvador. As evidence of alienage,

17 DHS submitted its Form I-213 alien record, an accompanying

18 record of an interview conducted on January 31, 2017, criminal

19 booking information, and a criminal records database report

20 (a “rap” sheet). Zavala Almendades objected to the evidence

21 and moved to terminate his removal proceedings, arguing that

3 1 the documents were unreliable and unauthenticated, and that

2 the information on the I-213 was inadmissible hearsay and

3 obtained in violation of his Fifth Amendment rights.

4 The IJ orally denied the motion to terminate, stating

5 only that “[t]he Government has submitted independent proof

6 [of alienage].” Certified Administrative Record (“CAR”) at

7 215. The IJ did not specify what independent proof he relied

8 upon at the hearing. 1 The BIA disposed of Zavala Almendades’s

9 appeal of this issue with two sentences: “While on appeal the

10 respondent seeks to challenge the admission of documents

11 pertaining to his alienage . . . , he provided both a

12 declaration and testimony as to his birth in El Salvador . .

13 . Thus, we find no error in this regard.” CAR at 6. 2

14 The IJ’s lack of analysis and the BIA’s reliance on

15 Zavala Almendades’s defensively filed asylum application and

16 withdrawn pro se testimony require remand.

17 As noted above, the IJ did not identify what evidence he

18 relied upon to find that DHS met its burden of proving

1 In his subsequent written decision, the IJ appeared to rely on Zavala Almendades’s asylum application filed as a defense against removal. See CAR at 169 (citing id. at 1158-1171). But as explained below, this reliance was barred by

(e). 2 Although the BIA did not specify the “declaration” and “testimony” that it relied upon, its citations to the record made clear that it was referring to the declaration Zavala Almendades submitted as part of his defensively filed asylum application, see CAR 1060-64, and the later-withdrawn statements that Zavala Almendades made to the visiting IJ while representing himself, see

. 4 1 alienage. This lack of analysis frustrates any meaningful

2 judicial review. See Poradisova v. Gonzales,

,

3 77 (2d Cir. 2005) (“Despite our generally deferential review

4 of IJ and BIA opinions, we require a certain minimum level of

5 analysis from the IJ and BIA opinions . . . and indeed must

6 require such if judicial review is to be meaningful.”); see

7 also INS v. Orlando Ventura,

(2002) (holding

8 that “the proper course, except in rare circumstances, is to

9 remand to the agency for additional investigation or

10 explanation”).

11 Moreover, our review of the record does not clarify what

12 “independent proof” of alienage the IJ could have relied upon

13 in reaching its decision. First, the IJ erred to the extent

14 that it relied upon the Government’s Form I-213 or

15 accompanying interview records without resolving the parties’

16 disputes over the veracity of those records. The Government

17 is correct that we have held that an I-213 is “presumptively

18 reliable” because it “contain[s] guarantees of reliability

19 and trustworthiness that are substantially equivalent” to

20 those required of business records admissible under the

21 Federal Rules of Evidence. Felzcerek v. INS,

,

5 1 116–17 (2d Cir. 1996). But in Felzcerek, there was “no

2 evidence to contradict or impeach the statements in the

3 report,” and, we noted that if “the reliability of the form

4 is somehow undermined,” further scrutiny is required,

5 including possibly requiring the agent who completed the I-

6 213 to testify.

. Here, Zavala Almendades

7 submitted a sworn declaration that he did not answer any

8 questions or provide any of the information alleged in the I-

9 213 and accompanying interview record. And the record

10 reflects that he declined to sign the interview record.

11 Moreover, Zavala Almendades’s Legal Aid criminal defense

12 attorney confirmed: that it is Legal Aid’s practice to advise

13 clients not to answer any questions including as to their

14 name or date of birth; that Zavala Almendades’s client file

15 reflects that Legal Aid was assigned at arraignment on January

16 30, 2017 (the day before the interview); and that there were

17 no notes in the file that any immigration officer attempted

18 to question him before February 1, 2017. The IJ therefore

19 erred to the extent that he relied upon the I-213 and

20 accompanying documentation without resolving the parties’

21 evidentiary dispute.

6 1 Second, Zavala Almendades’s criminal records - the

2 booking information and the rap sheet — do not qualify as

3 reliable independent evidence, particularly as there is no

4 indication where the information on the booking record came

5 from. See Francis v. Gonzales,

(2d Cir.

6 2006) (stating that rap sheets may be admissible but “will

7 usually fail to rise to the level of clear and convincing

8 evidence” of a conviction and “do not necessarily emanate

9 from a neutral, reliable source”).

10 While the BIA relied on two other sources of evidence to

11 establish Zavala Almendades’s alienage – his defensively

12 filed asylum application and pro se testimony – those sources

13 also do not qualify as independent proof of alienage. The

14 relevant regulations bar the agency from using a petitioner’s

15 defensively filed asylum application to sustain DHS’s burden.

16 Indeed,

(e) specifically states that “[a]n

17 application under this section shall be made only during the

18 hearing and shall not be held to constitute a concession of

19 alienage or deportability in any case in which

20 the respondent does not admit his or her alienage or

21 deportability.” We are unpersuaded by the Government’s

7 1 arguments that this regulation does not bar the use of Zavala

2 Almendades’s defensively filed asylum application here. The

3 Government first contends that the BIA did not rely on “a

4 concession of alienage” in his asylum application but rather

5 on the “information contained within” the declaration that

6 accompanied the application. Gov’t Br. At 20. But that

7 declaration was part of the application, and the Government

8 does not explain how a respondent could make a “concession of

9 alienage” in an asylum application without including the

10 information that the respondent was born in a foreign country.

11

(e). We similarly reject the Government’s

12 argument that

(c)(1) allows the Government

13 to use information in an asylum application to satisfy any

14 of its burdens of proof. See

(c)(1)

15 (“[I]nformation provided in the application may be used . .

16 . to satisfy any burden of proof in exclusion, deportation,

17 or removal proceedings.”) That regulation applies to

18 affirmative asylum applications filed with U.S. Citizenship

19 and Immigration Services, not to a defensive asylum

20 application filed in removal proceedings, as is the case here.

21 See

§ 1208.3(c)(1) (describing asylum applications

8 1 received “by the Service” – i.e., affirmative applications). 3

2 The Government does not defend the BIA’s use of Zavala

3 Almendades’s pro se testimony as to his alienage. And the

4 BIA erred in relying on that testimony because the IJ granted

5 his request to withdraw those statements based on due process

6 concerns. See Zhen Nan Lin v. U.S. Dep’t of Justice, 459

, 268 (2d Cir. 2006) (“Evidence may be admitted in

8 accordance with the standard for due process ‘if it is

9 probative and its use is fundamentally fair.’”).

10 Accordingly, given the IJ’s lack of analysis and the

11 BIA’s impermissible reliance on the defensively filed asylum

12 application and withdrawn testimony, we remand for the agency

13 to reconsider or further explain its conclusion that DHS met

14 its burden of proof.

15 Because alienage is a threshold issue, we do not now

16 address the entirety of Zavala Almendades’s claims for

17 asylum, withholding of removal, and CAT relief. See INS v.

18 Bagamasbad,

(1976) (“As a general rule courts

19 and agencies are not required to make findings on issues the

3 The Department of Justice recently published a final rule amending

, effective January 15, 2021. See Procedures for Asylum and Withholding of Removal,

, 81699 (Dec. 16, 2020). On appeal, the Government has not argued that the new rule applies retroactively or otherwise justifies the BIA’s 2018 reliance on Zavala Almendades’s defensive asylum application. Accordingly, we assume without deciding that the new rule does not apply retroactively to this case. 9 1 decision of which is unnecessary to the results they reach.”).

2 On remand, the agency should also consider whether Zavala

3 Almendades stated a claim for asylum or withholding of removal

4 based on an anti-gang political opinion, taking into account

5 our recent decision in Zelaya Moreno v. Wilkinson,

190 (2d Cir. 2021). The agency failed to address the issue

7 previously and mischaracterized it as a social group claim.

8 See Lin Zhong v. U.S. Dep’t of Justice,

(2d

9 Cir. 2007) (stating that we may consider only those issues

10 that formed the basis for the agency decision).

11 For the foregoing reasons, the petition for review is

12 hereby GRANTED, the BIA’s decision is VACATED, and the case

13 is REMANDED for further proceedings.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court

10