Brief 5th Cir Almendarez

No. 07-60553 ________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________________________________________

Maria Del Rosario ALMENDAREZ Petitioner, v. Peter D. KEISLER, ACTING UNITED STATES ATTORNEY GENERAL Respondent. ________________________________________________________________ BRIEF FOR PETITIONER ________________________________________________________________

Nicolas “Nick” Chavez, Esq. Chavez & Gallagher, L.L.P. 10830 N. Central Expy. SUITE 400 DALLAS, TX 75231 Tel: (214) 251-8011 Fax: (214) 251-8021 ATTORNEY FOR PETITIONER

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CERTIFICATE OF INTERESTED PERSONS

Maria Del Rosario Almendarez v. Keisler, Cause No. 07-60553 The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of the Court may evaluate possible disqualification or recusal. 1.

Hon. Peter D. Keisler

Acting US Attorney General

2.

Angela K. Barrows

Dallas USCIS Director

3.

Paul Hunker

Chief Counsel USICE, Dallas

4.

Thomas Ward Hussey

Office of Immigration Litigation

Respectfully submitted,

NICOLAS CHAVEZ Attorney for Petitioner

STATEMENT REGARDING ORAL ARGUMENT i

Maria Del Rosario Almendarez v. Keisler, Cause No. 07-60553 The arguments presented herein are dispositive of the issues at hand, therefore, Petitioner does not expressly request an oral argument, but will defer to the Court to determine whether an oral argument is necessary before the Court enters a decision. Respectfully submitted,

NICOLAS CHAVEZ Attorney for Petitioner

TABLE OF CONTENTS

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Page

STATEMENT OF JURISDICTION

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SCOPE OF REVIEW ………………………………………………………

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STATEMENT OF THE ISSUES PRESENTED ………………………….

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STATEMENT OF THE CASE ……………………………………………

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A.

Statement of Facts ………………………………………………

5

B.

Decision of the Immigration Judge …………………………….

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C.

Decision of the BIA …………………………………………….

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SUMMARY OF ARGUMENT …………………………………………..

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ARGUMENT AND AUTHORITY ……………………………………… A. The order of removal is not sustainable because the government failed to provide clear and convincing evidence that the Petitioner falsely claimed to be a U.S. citizen as described in 8 U.S.C. § 1182(a)(6)(C)(ii) ………………

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B.

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The Petitioner’s due process right to a fair hearing was violated where the Immigration Judge permitted the introduction of an unreliable sworn statement that was not properly administered by the DHS …………………………….

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CONCLUSION AND PRAYER …………………………………………

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CERTIFICATE OF SERVICE ……………………………………………

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TABLE OF AUTHORITIES Page iii

FEDERAL STATUTES/ACTS 8 U.S.C. § 1182(a)(6)(C)(i)

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8 U.S.C. § 1182(a)(6)(C)(ii)

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8 U.S.C. § 1182(a)(6)(C)(iii)

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8 U.S.C. § 1229a(c)(3)(A)

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8 U.S.C. § 1252

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8 U.S.C. § 1252(a)(2)(B)(i)

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8 U.S.C. § 1252(a)(2)(D)

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8 U.S.C. § 1255

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FEDERAL REGULATIONS 8 C.F.R. § 1240.8(a)

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FEDERAL CASES Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997)

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Accardi v. Shaugnessy, 347 U.S. 260 (1954)

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Carbajal-Gonzalez v. INS, 78 F.3d 194 (5th Cir. 1996)……………………..

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Chun v. INS, 40 F.3d 76 (5th Cir. 1994)……………………………………..

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INS v. Elias-Zacarias, 502 U.S. 478, 117 L.Ed. 2d 38, 112 S.Ct. 812 (1992)…………………………………….

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Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001)

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iv

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Mikhael v. INS, 115 F.3d 299 (5th Cir. 1997)………………………………

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Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991) ………………………

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Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2000)……………………

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Reno v. Flores, 507 U.S. 292, 306 (1993)

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v

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07-60553 ______________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ______________________________________________________________ Maria Del Rosario Almendarez Petitioner, v. Peter D. Keisler, ACTING ATTORNEY GENERAL OF THE UNITED STATES, Respondent. ______________________________________________________________ BRIEF FOR THE PETITIONER ______________________________________________________________ TO THE HONORABLE JUDGES OF SAID COURT: NOW COMES PETITIONER Maria Del Rosario Almendarez (“Mrs. Almendarez”), by and through her undersigned attorney of record, files this Brief in support of her Petition for Review challenging the dismissal of her appeal before the Board of Immigration Appeals (“BIA”). With respect to the BIA’s order, the Petitioner would show that it is not supported by substantial evidence, and that any rational trier of fact would be

compelled to conclude that the government did not meet its burden of proof to remove the Petitioner from the United States.

STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to 8 U.S.C. § 1252. The Petitioner seeks review of a final order of removal entered by the BIA on June 20, 2007. There is no federal judicial review of any decision regarding the granting of discretionary relief under 8 U.S.C. § 1255. See 8 U.S.C. § 1252(a)(2)(B)(i). Notwithstanding this preclusion, the Court may still review decisions pertaining to questions of law or constitutional claims. 8 U.S.C. § 1252(a)(2)(D). In the instant matter, the Petitioner sought adjustment of status to a lawful permanent resident under 8 U.S.C. § 1255 before the Immigration Judge. An evidentiary hearing was held to determine whether the Department of Homeland Security could sustain its burden of proof to show that the Petitioner was inadmissible and subject to deportation under 8 U.S.C. § 1182(a)(6)(C)(ii)(false claim to United States citizenship), statutorily barring her from advancing an application for adjustment of status. The Immigration Judge held that DHS met its burden and entered an order of removal against the Petitioner. The Petitioner does not contest any judgment regarding the discretionary granting of relief under 8 U.S.C. § 1255, but rather, challenges the Attorney 2

General’s determination that she is deportable under 8 U.S.C. § 1182(a)(6)(C)(ii). Therefore, the Court maintains jurisdiction over her Petition for Review.

SCOPE OF REVIEW Although this Court reviews only the BIA’s decision, it may review the findings of the Immigration Judge where the BIA expressly adopts the Judge’s findings. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Factual determinations by the BIA or the Immigration Judge “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The BIA’s factual conclusion must be supported by substantial evidence. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). The substantial evidence test requires only that the BIA’s decision be supported by evidence in the administrative record and be substantially reasonable. Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2000). Under this test, the Court may not reverse the BIA’s factual determinations unless it “find[s] not only that the evidence supports a contrary conclusion, but that the evidence compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1., 117 L.Ed. 2d 38, 112 S.Ct. 812 (1992)). On questions of law, this Court reviews the BIA’s rulings de novo, but will defer to the BIA’s interpretation of immigration regulations if the interpretation is 3

reasonable. Mikhael, 115 F.3d at 305; See also Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).

STATEMENT OF THE ISSUES PRESENTED The Department of Homeland Security (“DHS”) provided a sworn statement over one page long, containing only thirteen questions from a DHS officer, as its “clear and convincing” evidence to deport the Petitioner under 8 U.S.C. § 1182(a)(6)(C)(ii) (false claim to U.S. citizenship). Petitioner adamantly denies DHS’s allegation that she used a false U.S. passport to enter the United States. Petitioner challenges the reliability of the underlying sworn statement because the interview was not translated correctly through the interpreter, her statement was not read to her before signing it, and the DHS officer did not properly administer the interview. Ultimately, the Immigration Judge regarded the sworn statement as the most reliable evidence in view of all other testimony, and concluded that DHS met its burden of proof. A.

Is there substantial evidence in the record to support the Immigration Judge’s finding that DHS provided “clear and convincing evidence” to remove Mrs. Almendarez under 8 U.S.C. § 1182(a)(6)(C)(ii)? Would a rational trier of fact be compelled to conclude that the government did not meet its burden? Petitioner urges a negative answer to the former question, and an affirmative

answer to the latter question. 4

B.

Was Mrs. Almendarez’s due process rights violated by the introduction of an unreliable sworn statement rendered without it having been read to her in her language prior to signing, and created after an inadequate investigation? Was Mrs. Almendarez substantially prejudiced? Petitioner urges an affirmative answer to both questions. STATEMENT OF THE CASE

A.

Statement of Facts Mrs. Almendarez is a native and citizen of Mexico. AR. 94. She cannot

speak, read or write in English. AR. 104. She is married to Mr. Roberto Almendarez, a U.S. citizen, and has been married to him for twelve years. AR. 94. Together they reside with their three U.S. citizen children in Texas. AR. 95. In 1995, Mrs. Almendarez obtained her Mexican passport and entered the United States with a tourist visa. AR. 97. In 1997, her visa was cancelled while attempting to enter the United States from Mexico by presenting false paperwork indicating employment in Mexico. AR. 98-99. Consequently, she remained in Mexico for approximately two years while her husband visited her. AR. 100. On or about May 30, 1999, she entered the United States through El Paso, Texas. She testified that she used a false resident card to enter the United States. AR. 100. In 2002, Mr. Almendarez filed an immediate relative petition on behalf of his wife, which was approved on June 24, 2002. AR. 7. Later that year Mrs. Almendarez filed an application for adjustment of status to a lawful permanent 5

resident based on her husband’s approved petition. Id. DHS subsequently issued its first interview notice regarding her application scheduled for December 2, 2003. The notice advised her that, “if you do not speak English, a person (not a family member), who can act as an interpreter, should accompany you to the Immigration interview.” AR. 136. Additionally, the notice indicated that the interview was to be video taped and conducted by Officer Priscilla Dobbins. Id. After she attended her interview, Mrs. Almendarez had to wait over a year for a decision on her application; she contacted her Congresswoman to initiate an inquiry on her behalf. AR. 61. Upon receiving a congressional inquiry, DHS scheduled a second interview for January 3, 2005 before Officer Diana Cupp. Because of Mrs. Almendarez’s inability to speak English she brought her neighbor, Marie Calixto, to the interview to translate for her. Although Ms. Calixto characterized her Spanish as “somewhat” fluent, she stated that she does know how to read or write in Spanish. AR. 84. She learned Spanish from the streets. Id. On January 3, 2005, Officer Cupp conducted the interview in English and questioned Mrs. Almendarez regarding the manner of her last entry in May of 1999. AR. 62-63. Ms. Calixto translated for Officer Cupp and Mrs. Almendarez, but she did not understand some of the words used by Mrs. Almendarez. AR. 85. Nevertheless, Officer Cupp created a statement elicited from Mrs. Almendarez’s 6

responses purporting that she used a “U.S. passport” to enter the United States. AR. 127. Although the sworn statement was signed by Mrs. Almendarez, neither Officer Cupp nor Ms. Calixto actually read the statement to her before she signed it. AR. 77-79, 104. As a result, the Service denied her adjustment application for having falsely claimed to be a U.S. citizen by presenting a fraudulent U.S. passport to an immigration officer at the time of her entry. Upon denying her application, DHS placed Mrs. Almendarez in removal proceedings by issuing a Notice to Appear (“NTA”) charging her for being inadmissible and subject to removal under 8 U.S.C. §§ 1182(a)(6)(C)(ii)(false representation of U.S. citizenship) and 1182(a)(6)(C)(i)(willful misrepresentation of a material fact). AR. 141. DHS alleged that she entered the United States by presenting a U.S. passport to an immigration officer. Id. Conversely, DHS also alleged that she entered without inspection. In response to the government’s charges and allegations, Mrs. Almendarez denied entering the United States without inspection, and denied that she used a U.S. passport to enter the United States. AR. 55. She conceded that she entered the United States by using a false resident card in response to the government’s Section 1182(a)(6)(C)(i) material misrepresentation charge. Id. B.

Decision of the Immigration Judge The Immigration Judge scheduled an evidentiary hearing on March 22,

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2006 to determine whether DHS could prove by clear and convincing evidence that Mrs. Almendarez was deportable under the Section 1182(a)(6)(C)(ii) (false claim of U.S. citizenship) charge. AR. 31, 60. In support of its charge, DHS submitted a copy of the sworn statement taken in 2005, and called on Officer Cupp and Marie Calixto as its witnesses. AR. 125-128. i.

Officer Cupp’s testimony regarding the interview on January 3, 2005

On direct examination, Officer Cupp testified that she took the statement from Mrs. Almendarez on January 3, 2005. AR. 62. Officer Cupp testified that the focus of the interview was to “explore the fraud” in her case. AR. 63, 65-66. When conducting interviews, she testified that she would ask a same question in “different ways…so that [she and the applicant] would be [clear] or both understanding what was being said.” AR. 67. Officer Cupp advised that some translators are certified, but usually the applicant brings someone with them to translate. AR. 63. She stated that she has a working knowledge of Spanish, and that she always ensures what the translators say is accurate. AR. 62-63. During the interview, she testified that she heard Mrs. Almendarez state twice that she used a passport to enter the United States. AR. 67. During direct-examination, counsel for DHS directed Officer Cupp’s attention to some “sticky notes” in Mrs. Almendarez’s government file. AR. 68. Counsel mistakenly believed that the notes belonged to Officer Cupp. Id. Officer Cupp 8

indicated that the notes belonged to Officer Dobbins who conducted the first interview on December 2, 2003. Id. When asked to review the sticky notes, Officer Cupp indicated that they were not very legible but was able to make out some words including “fraudulent passport.”1 Id. She admitted that the sticky notes were never formalized into a memorandum. AR. 69. She recalled that she saw Officer Dobbins at a recent “get together” who confirmed that they were Dobbin’s notes, and that Mrs. Almendarez had indeed made a “false claim”. Id. Further, Officer Cupp did not know if Officer Dobbins knew any Spanish. AR. 70. On re-direct examination, Officer Cupp described herself as being very precise at her work, and that it was important that the sworn statement is reviewed carefully to ensure accurate communication between her and the applicant. AR. 78. On cross-examination, Officer Cupp testified she was “99% sure” that there was no video recording of the first interview conducted by Officer Dobbins. AR. 75. Officer Cupp testified that she, Mrs. Almendarez, and Ms. Calixto were the only ones present at the second interview during the questioning phase. Id. The interview was not video or audio recorded. AR. 74. Officer Cupp admitted that she was not fluent in Spanish. AR. 72. She could not recall if she asked any questions in Spanish during the interview, but indicated that Ms. Calixto translated her questions for Mrs. Almendarez to Spanish, and Mrs. Almendarez’s responses to 1 The

government did not furnish a copy of these notes to the Petitioner or the Immigration Court as part of its supporting evidence.

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English. AR. 73. Officer Cupp stated that she did not keep any notes during the interview other than the sworn statement. AR. 73. She also testified that she always leaves the room to allow the translator and the applicant time to review the statement before the applicant signs it, and that she could not guarantee if Ms. Calixto actually read the sworn statement to Mrs. Almendarez. AR. 77-79. ii.

Testimony from the translator, Ms. Marie Calixto

Ms. Calixto agreed to translate for Mrs. Almendarez at her interview on January 3, 2005. AR. 103. Ms. Calixto testified that she is not an employee of DHS. AR. 84. She never received any formal training or certification for translation in Spanish. Id. Her highest education is high school. Id. When asked by the Petitioner’s counsel if she was fluent, she replied, “Somewhat, I guess.” Id. She also testified that she could neither read nor write in Spanish. Id. She indicated that she learned Spanish by “hanging around with Spanish people and they would teach [her] what they know and [she] would pick it up.” Id. She stated that she never translated for anyone other than Mrs. Almendarez. AR. 85. When asked whether she understood the Spanish words used by Mrs. Almendarez during her interview, Ms. Calixto replied, “No, not some of them.” Id. She indicated that she was not familiar with the translation of “green card”. AR. 86. She believed that a passport and a green card may be both referenced as “passaportes” based on her informal Spanish education from “those Spanish guys 10

that [she hangs] around with.” AR. 91. Ms. Calixto stated that Mrs. Almendarez told her that she used a “green card”, but later said Mrs. Almendarez used the word “passport” to describe her entry. AR. 86. At the conclusion of the interview, Ms. Calixto testified that she did not read the sworn statement to Mrs. Almendarez. AR. 89-90.

iii.

Testimony from Mrs. Almendarez

Mrs. Almendarez testified that she cannot read, speak or understand English. AR. 104. At the interview, she testified that Officer Cupp did not speak any Spanish to her at all. AR. 103. Mrs. Almendarez testified that she said “card”—as opposed to “passport”—when describing how she entered the United States in May of 1999. AR. 106. She indicated that the words, “U.S. passport”, were never conveyed to, or from, her during the interview. AR. 104. She testified that Ms. Calixto did not read the statement to her in Spanish before signing it. Id. Mrs. Almendarez testified that she used a resident card to enter the United States in May of 1999. AR. 100-101. She described the card as a “pink” card with a photo for which she paid $200. AR. 101. She presented this card to an immigration officer upon inspection and was allowed to enter the United States. AR. 102. She could not recall the name on the card and discarded it once she crossed into the United States. AR. 102. 11

Mrs. Almendarez testified that she obtained a Mexican passport and acquired a U.S. tourist visa to enter the United States in 1995. AR. 96-97. She described her passport as a “book”. Id. She described her tourist visa as a card that read “passport to the United States.” Id. She perceives a passport and a visa to mean the same thing, i.e., document used to enter the U.S., but that a green card and a passport are distinguishable.2 AR. 104-105. iv.

Analysis of the Immigration Judge

The Immigration Judge held that the DHS met its burden of proof, and consequently entered an order of removal against Mrs. Almendarez based upon the government’s charge of false claim to U.S. citizenship. AR. 28. After reviewing the testimony, the Immigration Judge concluded that the sworn statement was the most reliable evidence with respect to what actually occurred during the second interview, and “possibly” the first interview. AR. 38. The Immigration Judge reasoned that the government’s evidence was a true and accurate account of Mrs. Almendarez’s statements because Officer Cupp was the only party who had any formal training in Spanish, and her memory of the events were supported with records which were prepared contemporaneously with the events. Id. With regard to Mrs. Almendarez’s case, the Immigration Judge described her and Ms. Calixto’s testimony as “vague” and blamed Mrs. Almendarez’s situation on her misjudgment 2 The

term “green card” is often used interchangeably with the term “resident card” to signify a person who has lawful permanent resident status in the United States.

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in selecting the wrong translator. AR. 38-39. The Immigration Judge did not enter an adverse credibility finding against Mrs. Almendarez. C.

Decision of the Board of Immigration Appeals Mrs. Almendarez appealed the decision of the Immigration Judge before the

BIA. In a one-page decision, the BIA affirmed the Immigration Judge’s finding that the sworn statement was “a truthful and accurate record of what happened on January 3, 2005.” AR. 2. The BIA did not enter any findings regarding Mrs. Almendarez’s first interview in 2003. Id.

SUMMARY OF ARGUMENT DHS failed to provide “clear and convincing evidence” to deport Mrs. Almendarez for falsely claiming to be a U.S. citizen for entry purposes. In support of its case, DHS submitted a sworn statement from Mrs. Almendarez taken during an interview in relation to her application for adjustment of status. The statement indicates that Mrs. Almendarez said she used a “U.S. passport” to enter the United States. However, the record shows that the sworn statement is completely unreliable. First, the translator used for translation was incompetent and misinterpreted Mrs. Almendarez’s statement concerning the actual entry document used by Mrs. Almendarez. The translator, which was the government’s witness, testified that she could not understand some of the words used by Mrs. Almendarez. 13

She could not translate the word “green card”, instead referring to it as a “passaporte”. More critically, the translator failed to read the sworn statement to Mrs. Almendarez before she signed it. Thus, Mrs. Almendarez was completely unaware of the contents of her sworn statement. Second, Mrs. Almendarez provided truthful and consistent testimony about the circumstances of her entry, stating that she used a pink resident card to enter the United States as opposed to a U.S. passport. Third, the evidence from the 2003 interview is unreliable because some of the notes were illegible, Officer Cupp’s testimony regarding such notes was double hearsay, and no testimony from Officer Dobbins was provided to verify the information. Secondly, the government violated Mrs. Almendarez’s due process rights to a fair trial and proper administration of the sworn statement. The Immigration Judge impermissibly relied on an invalid sworn statement to deport Mrs. Almendarez when the statement was inherently flawed. DHS failed to take measures to ensure that Mrs. Almendarez read her statement before signing it. Furthermore, DHS failed to conduct an adequate investigation of the facts of her case. Had both been performed, Mrs. Almendarez would have clarified that she used a resident card, not a U.S. passport, to enter. Such inaction by the government substantially prejudiced Mrs. Almendarez in precluding her from advancing her application for adjustment of status to allow her to remain lawfully in the United States with her family. 14

ARGUMENT AND AUTHORITY A.

The order of removal is not sustainable because the government failed to provide clear and convincing evidence that the Petitioner falsely claimed to be a U.S. citizen as described in 8 U.S.C. § 1182(a)(6)(C)(ii). The Immigration Judge erroneously held that the sworn statement provided

by DHS was the most reliable account of what Mrs. Almendarez stated during her interview about the actual document she presented to an immigration officer when she entered on May 30, 1999. AR. 38; AR. 125-128. The Immigration Judge’s decision is not supported by substantial evidence on the record. As shown below, any rational trier of fact would be compelled to conclude that the government failed to meet its burden of proof to show that Mrs. Almendarez falsely claimed U.S. citizenship via a false U.S. passport because its evidence was prominently unreliable. A foreign national is inadmissible to the United States and subject to removal under 8 U.S.C. § 1182(a)(6)(C)(ii) if he or she “falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under [the Immigration & Nationality Act] or any other Federal or State law.”3 With respect to a foreign national subject to removal from the United States, Unlike the provision in 8 U.S.C. § 1182(a)(6)(C)(i)(for willful misrepresentations of material fact not involving U.S. citizenship), there is no waiver provision which would allow a foreign national to apply for lawful permanent residence through 8 U.S.C. § 1255 if found to have falsely 3

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the government must provide “clear and convincing evidence” that he or she is deportable as charged.4 8 C.F.R. § 1240.8(a). Deportability must be based upon reasonable, substantial, and probative evidence. 8 U.S.C. § 1229a(c)(3)(A). To meet its burden of “clear and convincing evidence”, DHS relied solely on a sworn statement taken by Officer Cupp during Mrs. Almendarez’s second interview in connection to her application for adjustment of status. 1.

The uncertified translator misinterpreted the Petitioner’s statements about the type of document she used to enter the United States, and failed to read the sworn statement to the Petitioner in her language.

DHS called Ms. Calixto as one of its witnesses. AR. 125. The sworn statement, however, is unreliable largely in part because Ms. Calixto did not properly translate Mrs. Almendarez’s statements to Officer Cupp during the interview. Her lack of qualifications alone belies her stated level of fluency in Spanish. She is not a certified translator and never received any formal training in Spanish. She cannot read or write in Spanish, but learned her Spanish informally from the streets. claimed U.S. citizenship on or after September 30, 1996. Thus, the consequences of falsely representing to be a U.S. citizen are considerably harsh, and would statutorily bar an applicant from adjusting his status to a lawful permanent resident without recourse. 4 The

Immigration Judge correctly identified that DHS carried the burden of proof to show that Mrs. Almendarez was removable as charged. The burden might have shifted to Mrs. Almendarez if she had been found present without being admitted or paroled in the United States as originally alleged. See 8 C.F.R. § 1240.8(c). DHS initially mischaracterized her as an alien present in the U.S. without having been admitted. The categorization was in stark contrast to the government’s case which relied on Mrs. Almendarez’s entry into the United States through a false representation; presumably, she was admitted and inspected by an immigration officer irrespective to her misrepresentation. Accordingly, the Immigration Judge mandated that DHS prove its case against Mrs. Almendarez.

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Ms. Calixto testified under oath that she was not familiar with some of the words used by Mrs. Almendarez during the interview. She indicated that there are some words that she knows how to translate, but others that she does not. AR. 88. In particular, she was unfamiliar with the terminology to describe the cards used for immigration purposes. She stated that she did not know the translation of “green card” but said she would use “passaporte” to describe it. AR. 88, 91. The record apparently indicates that Ms. Calixto stated that Mrs. Almendarez first told her that she used a green card (“But, she told me, you know, just the green card”). AR. 86. Then she stated that Mrs. Almendarez told her she used a “passaporte.” This discrepancy in testimony displays a layperson’s misunderstanding and confusion surrounding the terms used in immigration, or perhaps, reveals a cultural or linguistic use of a single word conveying multiple meanings (which discussion is beyond the parameters of this appeal). Whatever the reason, the Immigration Judge should have weighed Ms. Calixto’s testimony against the government, not against Mrs. Almendarez. It was DHS’s burden to show that its evidence is reliable, substantial and probative. By calling Ms. Calixto, the government intended to substantiate the proper execution of its sole evidence. Ironically, Ms. Calixto’s testimony called into question the validity of the sworn statement due to her glaringly defective translation. It is important to note that Ms. Calixto never mentioned that she heard Mrs. 17

Almendarez describe her passport as a U.S. passport, just a passport or “passaporte”. Assuming Mrs. Almendarez used the term “passport”, it is possible that she could have been referring to a Mexican passport. The evidence on the record does not rise to the level of “clear and convincing evidence” to demonstrate that she presented an American passport, as opposed to another document. As seen above, the lapse in Ms. Calixto’s translation resulted in prejudicial harm to Mrs. Almendarez’s case. The translation was highly ineffective to Mrs. Almendarez’s detriment; Ms. Calixto was not capable of appreciating or understanding critical distinctions of immigration entry documents for translation purposes. Furthermore, the sworn statement is unreliable because it was not read back to Mrs. Almendarez before she signed it. The statement was in English, and Ms. Calixto failed to translate the statement which included the incriminating words: “U.S. passport.” Had Ms. Calixto effectively translated or read the statement, Mrs. Almendarez would have clarified that she did not enter with a U.S. passport. This oversight caused Mrs. Almendarez to forever lose her opportunity to apply for lawful permanent resident status and prevent her deportation, because there is no statutory provision for waiving a false claim to U.S. citizenship as there is for a general misrepresentation of material fact. See 8 U.S.C. § 1182(a)(6)(C)(iii). Consequently, she faces an order of deportation tantamount to permanent exile from her U.S. citizen husband and three American children. 18

2.

Mrs. Almendarez’s truthful testimony shows that she entered the United States with a resident card instead of a U.S. passport.

Mrs. Almendarez, who cannot speak any English at all, indicated that Officer Cupp did not speak any Spanish to her during the interview. Mrs. Almendarez denied using the word “U.S Passport” to describe the manner in which she entered. She further testified that such term was never read or communicated to her during the course of the interview. She testified, instead, that she presented a pink resident card with a photo to the immigration officer, which she had purchased for $200 in Mexico. She could not recall the name on the card but stated that she discarded it once she crossed into the United States. The Immigration Judge did not make an adverse credibility finding against Mrs. Almendarez but noted her testimony as vague. In review of the record, the Immigration Judge mischaracterized her testimony by stating that she didn’t know the difference between a passport and a green card. AR. 37. To the contrary, Mrs. Almendarez testified that she does in fact recognize the difference between a passport and a green card. AR. 104. The distinction is important: She perceives a passport (not specifically a U.S. passport) and a visa (which may mean a tourist visa and not necessarily a green card) to essentially mean the same with respect to the manner in which one may enter the United States.5 AR. 105. Her perception is 5 A reasonable interpretation

could be that she perceived those documents to mean the same thing because a foreign national may present both his or her respective passport and a tourist visa

19

understandable as she genuinely believed her tourist visa card to signify a “passport” to the United States. AR. 96. 3.

The evidence used from the first interview is unreliable.

The BIA did not expressly rule on the findings regarding the first interview conducted by Officer Dobbins in 2003. However, the Immigration Judge appeared to have based his decision partly on the Petitioner’s records stemming from that interview. The evidence from the 2003 interview is unreliable and lacks any probative value. The interview notice clearly advised that it was going to be video taped. Accordingly, Mrs. Almendarez’s counsel requested a subpoena for a copy of the video. Yet no video tape of this interview could be found. Instead, the DHS introduced some illegible sticky notes during direct examination of Officer Cupp which counsel mistakenly thought belonged to her. Officer Cupp stated that the notes belonged to Officer Dobbins, who was not called to testify as to the authenticity or veracity of those notes. Apparently, Officer Cupp learned that the notes belonged to Officer Dobbins when she ran into her at a recent “get together”. At this reunion, Officer Dobbins informed her that Mrs. Almendarez made a “false claim”, but no other details were provided. The information from Officer Dobbins lacks any specifics on what Mrs. Almendarez actually stated to her. Moreover, it is unreasonable and unfair to rely simultaneously when applying for admission into the United States.

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on illegible sticky notes and double hearsay without the benefit of cross-examining the author of such notes. Absent Officer Dobbin’s testimonial account of her interview, the information from 2003 is insufficient to support a finding that Mrs. Almendarez used a false U.S. passport. Therefore, the government’s information about Mrs. Almendarez’s entry document in question did not amount to sufficient evidence to support the Immigration Judge’s finding. Accordingly, this Court must be compelled to hold that the government failed to meet its high burden of proof by relying solely on an unsubstantiated and unreliable sworn statement. B.

The Petitioner’s due process right to a fair hearing and proper administration of her statement was violated where the Immigration Judge relied on an invalid and procedurally defective sworn statement. Persons in removal proceedings are entitled to a full due process. “It is well

established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993); Accardi v. Shaugnessy, 347 U.S. 260 (1954); Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991) [“Careless observance by an agency of its own administrative processes weakens its effectiveness in the eyes of the public because it exposes the possibility of favoritism and of inconsistent application of the law.”]. Due process challenges are reviewed de novo. Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). Under the Fifth Amendment's Due Process Clause, an alien facing deportation is entitled to a 21

full and fair hearing of her claims and a reasonable opportunity to present evidence on her behalf. To prevail on such a challenge, a foreign national must make "an initial showing of substantial prejudice." Id. Officer Cupp testified that the purpose of this interview was to investigate fraud in Mrs. Almendarez’s manner of entry. She described her interview style as precise and thorough. She stated that she always ensures that the translation is accurate and that she repeats her questions in different ways to avoid any confusion between her, the translator, and the applicant. Yet, a review of the record would show anything but a precise and thorough interview. DHS carries the responsibility, as professed by Officer Cupp, to carefully execute its duties to the public by ensuring proper and effective communication with an applicant pursuing an immigration benefit. Such responsibility is particularly heightened where family unity is jeopardized because of the applicant’s past actions. As Officer Cupp rightly noted, the government will always seek to provide the benefit. But it must act careful in its review and procurement of an applicant’s statements which may constitute an impediment to receiving such benefit, especially where it could result in a life-time separation from the applicant’s family. Here, Mrs. Almendarez’s interest at stake is to remain in the United States with her husband and three children and to avoid living apart from them forever. In view of those interests, DHS failed to take appropriate measures to ensure that the 22

sworn statement, which contained incriminating evidence, was read to Mrs. Almendarez in her own language to establish a true and accurate record of her statement. Such lapse in procedure renders the statement invalid and defective, and thereby diminishing the government’s assurance that it will abide by its procedures. Considering the magnitude of her case, DHS also failed to inquire as to whether Mrs. Almendarez had in fact used a U.S. passport in light of information that would have prompted any reasonable fact finder to conduct further inquiry about the document in question. The statement was just over a page long containing only thirteen questions. When the need for clarification was obvious, Officer Cupp just accepted the translator’s initial statement of “U.S. passport” at face value. She failed to ask about the type, color, size, or shape of the document used by Mrs. Almendarez, and failed to repeat pertinent questions in a different manner to clarify the document used for entry (like the manner in which she described). She did not keep any notes about her investigation other than Mrs. Almendarez’s statement. Although she testified that she heard Mrs. Almendarez use the word “passport” twice, the sworn statement shows that she framed her subsequent questions using the term “U.S. passport” within the question without first establishing that Mrs. Almendarez had in fact used a U.S. passport.6 6 Officer

Cupp accepted the translator’s description of “US Passport” at face value without further clarification:

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Q: (Officer Cupp): On what date and by what means did you next enter the United States? A: (Mrs. Almendarez): I had the problem with the visa at the Consulate and then came in

Mrs. Almendarez was substantially prejudiced by not having her statement read to her, and by the manner in which her interview was conducted. With respect to the applicability of 8 U.S.C. § 1182(a)(6)(C)(ii), the difference between using a U.S. passport and “green card” is a matter of one’s immigration life or death. Presenting a false U.S. passport to an immigration officer would preclude an applicant to waive such inadmissible ground based on family unity reasons. See 8 U.S.C. § 1182(a)(6)(C)(iii). In contrast, presenting a false permanent resident card would not negate the applicant from seeking a waiver for the misrepresentation based on qualifying family member. Id. Thus, an erroneous classification of the underlying fraudulent document could forever bar an otherwise admissible applicant from applying for lawful permanent residence. Here, Mrs. Almendarez faces deportation and a life-time bar to reenter the United States and remain with her family as a legal resident. Accordingly, it offends due process and notions of fundamental fairness to deport Mrs. Almendarez based on a statement rendered without the benefit of having it been read to her in a language she understands, or having it read to her (period). It is akin to signing a confession for a crime implicating a life sentence without fully knowing its contents. Despite Officer’s Cupp professed rigor in to the US in 1999 with a US passport. [Translation by Ms. Calixto]. Q: (Officer Cupp): Did you successfully enter the United States with a US passport after being inspected at a port of entry, and [if] so, where? A: (Mrs. Almendarez): Yes, I was inspected and came into the United States at El Paso in May 1999. [Translation by Ms. Calixto]. 24

ensuring proper fact finding, no meaningful effort was ever made to uncover the real facts of her entry.7 To reiterate, Mrs. Almendarez’s handicap is her language barrier which essentially put her at the complete mercy of the government officer and translator. Had DHS effectively investigated the facts or ensured that the sworn statement was read back to her in Spanish, Mrs. Almendarez would have clarified and explained that she used a resident card, not a U.S. passport, and thus, allowing her to apply for lawful resident status in conjunction with a waiver for her misrepresentation. Succinctly put, the sworn statement is fundamentally defective to support the Immigration Judge’s finding. Therefore, use of this evidence by the government violates Mrs. Almendarez’s due process right to a fair hearing and her right to a proper and careful administration of a sworn statement, especially where the government seeks to elicit incriminating evidence in guise of an adjustment interview.

7 A period

of almost two years lapsed between her first and second interview with no sign of any investigation.

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CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, PETITIONER PRAYS FOR REVERSAL of the BIA’s order and remanding for further proceedings on Petitioner’s application for adjustment of status. Petitioner prays generally for relief. Respectfully submitted,

Nicolas “Nick” Chavez, Esq. Attorney at Law Chavez & Gallagher, LLP 10830 N. Central Expy. Suite 400 Dallas, TX 75231 Tel: (214) 251-8011 Fax: (214) 251-8021 October 28, 2007

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CERTIFICATE OF SERVICE I hereby certify that on the 29th day of October, 2007, two copies of the foregoing Brief, and one 3.5 inch diskette containing a PDF formatted copy of the foregoing Brief were served upon the following parties via overnight courier service: Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878 Ben Franklin Station Washington, D.C. 20044

________________________ Nicolas Chavez Attorney for Petitioner

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