Thursday, September 24, 2009

Burden of proof as to existence of conviction

Barradas v. Holder, No. 08-3440 (9/23/09) burden of proof as to existence of conviction, Compelled Testimony, Excessive Interrogation by IJ

Barradas v. Holder (Tinder)
Oral Argument | Full Text

Record contained sufficient evidence to support IJ's finding that lawful permanent resident was removable on grounds that he had abetted other aliens to enter U.S. unlawfully. While govt. failed to produce court record regarding defendant's prior guilty plea to charge of alien smuggling, govt. could use criminal complaint, Forms I-213 and I-831, as well as evidence of defendant's guilty plea to said offense to satisfy its burden of proof as to existence of conviction. Ct. also rejected alien's argument that IJ denied him due process by implying that he would take adverse inference if alien refused to take witness stand, and by questioning alien regarding underlying facts of alien smuggling charge. Here, the court deferred to the Attorney General’s regulation for determining what kinds of evidence may be used to prove a criminal conviction in immigration proceedings, 8 C.F.R. § 1003.41. Subsection (d) of this regulation provides that “[a]ny . . . evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.” 8 C.F.R. § 1003.41(d). The Federal Rules of Evidence do not apply in immigration proceedings. Doumbia v. Gonzales, 472 F.3d 957, 962 (7th Cir. 2007). Evidence is admissible so long as it is probative and its admission is fundamentally fair. Rosendo-Ramirez, 32 F.3d at 1088. The court allowed the admission of Forms I-213 to prove the truth of their contents. See Rosendo-Ramirez, 32 F.3d at 1089.

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Monday, September 21, 2009

Indian national's withholding of removal

Patel v. Holder, No. 08-3067 (09/16/09) withholding of removal; lack of jurisdiction, India

Patel v. Holder (Wood)
Oral Argument | Full Text

Petition for review of BIA's denial of Indian national's application for withholding of removal is denied and dismissed in part where: 1) petitioner's request for continuance is dismissed for lack of jurisdiction and in the alternative denied for lack of merit; 2) BIA's finding that petitioner did not have a well-founded fear of persecution was supported by reasonable, substantial, and probable evidence; and 3) petitioner's claim of ineffective assistance of counsel is dismissed for lack of jurisdiction. Record contained sufficient evidence to support IJ's denial of alien's application for withholding of removal based on past persecution where alien testified that physical attacks that occurred in native country were motivated by business reasons, as opposed to his religion or political activities.

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