Punin v. Garland

108 F.4th 114

Maximo Robert Vera PUNIN, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.

No. 22-6275

August Term, 2023

United States Court of Appeals, Second Circuit

Argued: March 4, 2024

Decided: July 16, 2024

On Petition for Review of a Final Decision of the Board of Immigration Appeals

Rafael Moreno, Rule 46.1(e) Law Student (Aadhithi Padmanabhan, Supervising Attorney, Alexis Turner-Lafving, Rule 46.1(e) Law Student, Hannah Wardell, Rule 46.1(e) Law Student, on the brief), Federal Appellate Immigration Clinic, University of Maryland Carey School of Law, Baltimore, MD; John H. Peng, Prisoners' Legal Services of New York, Albany, NY, for Petitioner.

Christopher G. Gieger (Brian M. Boynton, Principal Deputy Assistant Attorney General, Kohsei Ugumori, Senior Litigation Counsel, Sarah K. Pergolizzi, Senior Litigation Counsel, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Zoe Levine, Jessica Swensen, The Bronx Defenders, Bronx, NY, for Amici Curiae The Bronx Defenders, Brooklyn Defender Services, The Legal Aid Society, Make the Road New York, The New York Legal Assistance Group, UnLocal, Inc., in support of Petitioner.

Before: Walker, Nardini, and Menashi, Circuit Judges.

William J. Nardini, Circuit Judge:

Petitioner Maximo Robert Vera Punin, a citizen of Ecuador, was ordered removed by immigration authorities after he was convicted in state court of multiple counts involving his rape of a young child. In re Maximo Robert Vera Punin, No. A208 834 568 (B.I.A. May 6, 2022), aff'g No. A208 834 568 (Immigr. Ct. Fishkill, N.Y. Dec. 8, 2021). He is presently serving a 25-year prison term and faces deportation upon completion of his sentence. In the meantime, he has brought this action challenging his removal order. Vera Punin does not contest that he has been convicted of crimes that render an alien removable. He is not seeking to revive asylum claims that he abandoned some time ago. He does not even claim to be a United States citizen; his argument is simply that the government committed errors in the course of proving that he's not.

The Department of Homeland Security ("DHS") served Vera Punin with a notice to appear ("NTA") in September 2020, charging him with being a removable alien under various sections of the Immigration and Nationality Act ("INA"). Vera Punin declined to concede that he was not a United States citizen. To prove his alienage, DHS submitted a Form I-213—the official record that immigration officials prepare when initially processing a person suspected of being in the United States without lawful permission. In this case, the I-213 listed various pieces of information, including checks of numerous government databases, detailed personal information about Vera Punin and his family, his fingerprints, and a recitation of his previous removal from the United States after he (using a false name) was apprehended by the Border Patrol near Mexico. The Immigration Judge ("IJ"), and later the Board of Immigration Appeals ("BIA"), held that the I-213 was admissible and sufficient to prove Vera Punin's alienage by clear and convincing evidence. Relying on this information, the immigration authorities issued an order of removal.

In his petition for review, Vera Punin contends that the agency did not adequately explain why the I-213 established his alienage; that the I-213 was improperly considered and "inadequate as a matter of law" to prove he was a foreign citizen; that the agency's treatment of the I-213 as presumptively reliable subverted the allocation of burdens among the parties; and that the temporary Appellate Immigration Judge who decided his appeal on behalf of the Board of Immigration Appeals did not have authority to do so.

We conclude that (1) Vera Punin did not exhaust his argument that the agency failed to explain its reasoning, and so we lack authority to consider this claim; (2) the agency properly considered Vera Punin's I-213 because it is presumptively reliable and capable of proving alienage by clear and convincing evidence, and Vera Punin did not rebut that presumption by providing any evidence to dispute the accuracy of the I-213's contents or to show that the information in the report was obtained by coercion or duress; (3) the presumption of reliability afforded to an I-213 does not impermissibly shift the burden of proof away from the government; and (4) the temporary Appellate Immigration Judge was properly appointed by the Attorney General by the authority vested in him under 8 U.S.C. § 1103(g)(1). Accordingly, we DENY IN PART and DISMISS IN PART the petition for review.

I. Background

According to the Department of Homeland Security, Vera Punin is a native and citizen of Ecuador who unlawfully entered the United States at an unknown date.

A. Initiation of Removal Proceedings

On September 21, 2016, New York state authorities charged Vera Punin with four crimes related to the sexual abuse of a minor.¹ These charges brought Vera Punin to the attention of DHS, and on August 1, 2017, he was apprehended by immigration officials outside the Suffolk County courthouse. On December 18, 2017, following a jury trial, Vera Punin was convicted of all four crimes and was sentenced principally to 25 years in prison. He began serving his term of imprisonment on January 5, 2018.

On September 24, 2020, DHS served Vera Punin with a notice to appear, which it filed with the immigration court, thereby commencing his removal proceedings. See 8 C.F.R. § 1239.1(a). The NTA charged Vera Punin with removability under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled; § 1182(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude; and § 1182(a)(2)(B), as an alien convicted of two offenses, regardless of whether the offenses involved moral turpitude, where the aggregate sentence was at least five years.

B. Removal Proceedings

Prior to Vera Punin's initial hearing, DHS submitted several documents to the immigration court, including a Form I-213, a New York state criminal rap sheet, an FBI criminal rap sheet, the conviction record for his 2017 convictions, and a copy of the decision affirming those convictions by the Second Department of the New York Supreme Court, Appellate Division. Vera Punin objected only to the admission of the I-213.

1. The Form I-213

A Form I-213, or a "Record of Deportable/Inadmissible Alien," Certified Admin. Rec. ("CAR") 249, is "an 'official record' prepared by immigration officials when initially processing a person suspected of being in the United States without lawful permission," Zuniga-Perez v. Sessions, 897 F.3d 114, 119 n.1 (2d Cir. 2018). Vera Punin's I-213 was prepared on August 1, 2017, the day that immigration officials arrested him outside the Suffolk County courthouse.

Vera Punin's I-213 is three pages long. The first page lists basic identifying information, including Vera Punin's date of birth, height, weight, and address, as well as a headshot photograph and fingerprints from his right and left index fingers. It states that Vera Punin's country of citizenship is Ecuador. The first page also lists the names and nationalities of Vera Punin's wife, mother, and father, who are all listed as having Ecuadorian nationality. Further, under a category for aliases, the I-213 lists the name "ROBERTO LOPEZ, Maximo." CAR 249. The first page is signed by a deportation officer, "J 4313 DICKERSON," and an examining officer, "BANKS, B 1093." Id.

The second page of the I-213 lists DHS's then-current charges against Vera Punin, id. at 250, which were being an inadmissible alien under Section 212 of the INA, 8 U.S.C. § 1182, and being an alien present without admission or parole under Section 212(a)(6)(A)(i), id. § 1182(a)(6)(A)(i). The I-213 then describes Vera Punin's "Previous Criminal History," explaining that he was arrested on September 28, 2016, for "Sex Assault - Carnal Abuse" and "Statutory Rape - No Force," and that those charges were still pending.² CAR 250. It also states that Vera Punin was convicted of driving under the influence on October 16, 2003.

Continuing on the second page, the I-213 lists various government databases under the heading "Records Checked": TECS, NCIC, CLAIM, ATS-P, CIS, EARM, and CCD.³ Id. Next to TECS, NCIC, CIS, and EARM is the notation "Pos," and next to CLAIM, ATS-P, and CCD is the notation "Neg." Id. The I-213 lists Vera Punin's arresting agents as "W 4933 RODRIGUEZ," "N 4322 MERCADO," "J 3762 ROTHERMEL," and "D MARINO," and states that Vera Punin had $9.80 in his possession when he was arrested. Id. Like the first page, the second page is signed by Deportation Officer Dickerson.

Beginning at the bottom of the second page and continuing on to the third and final page of the I-213 is the narrative portion. It explains that Vera Punin was arrested "without incident" on August 1, 2017, in front of the "Suffolk County Court . . . pursuant to an I-200 Warrant of Arrest" by "Long Island Fugitive Operations" as part of "Operation SOAR," and then transported to Central Islip for processing. Id. at 250-51.

The I-213 then describes Vera Punin's "Immigration History," noting that he is a citizen of Ecuador, not the United States, and that he had previously been apprehended in the United States and deported:

VERA PUNIN is not a national or citizen of the United States. VERA PUNIN is a national and citizen of Ecuador. VERA PUNIN entered the United States at an unknown time and place without being inspected / admitted. VERA PUNIN was apprehended by the Border Patrol on or about October 6, 1999. VERA PUNIN claimed to be a national and citizen of Mexico and used the alias Maximo ROBERTO LOPEZ. VERA PUNIN was voluntarily returned to Mexico. VERA PUNIN re-entered the United States without inspection.

Id. Vera Punin's criminal history is then listed again.

The I-213 further describes Vera Punin's family, stating that he "claims...