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Rodriguez-Quiroz v. Lynch

United States Court of Appeals, Eighth Circuit

August 31, 2016

Francisco Rodriguez-Quiroz Petitioner
v.
Loretta E. Lynch, Attorney General of the United States Respondent

          Submitted: May 17, 2016

         Petition for Review of an Order of the Board of Immigration Appeals

          Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Francisco Rodriguez-Quiroz, a native and citizen of Mexico, was charged with being subject to removal as an alien present in the United States without inspection and without admission or parole. Following a total of twelve hearings spread over a period of some fifty-five months, an immigration judge (IJ) sustained the charge, denied Rodriguez's request for adjustment of status, and granted his request for voluntary departure. The Board of Immigration Appeals (BIA) upheld the IJ's order and dismissed the appeal. Rodriguez now petitions for review. We grant the petition and remand the case to the BIA for further proceedings consistent with this opinion.

         Rodriguez entered the United States without inspection in 1986 and remained in the country for three years. He received a ten-year tourist visa in 1992 and thereafter made lawful entries in 1994 and 1995. After entering in 1995, he remained in the United States until 1997. Rodriguez received a second ten-year tourist visa in 2002, entitled B1/B2 visa and border-crossing card (border-crossing card). When he entered the United States on April 8, 2002, he settled in Rochester, Minnesota. According to Rodriguez, he has lived in Rochester with his family since that time, where he has owned and managed a grocery store. His wife of thirty years became a lawful permanent resident in 2009 and, according to Rodriguez, a United States citizen in 2015. Two of their children are United States citizens, and their third child is a lawful permanent resident.

         Rodriguez testified that he traveled to Mexico in September 2004 to visit his father and stayed for approximately fifteen days. When he returned to the United States, Rodriguez flew from Mexico City to Tijuana. He entered the United States through the San Diego, California, port of entry, as a passenger in a truck, and, according to Rodriguez, immigration officials scanned his border-crossing card. He arrived in San Ysidro, California, on October 6, 2004. A replacement I-94 form confirms that Rodriguez entered the United States at the San Diego port of entry on October 6, 2004, and indicates that he was authorized to remain in the United States until April 3, 2005. Rodriguez maintains that he has not returned to Mexico since his 2004 visit and that he has remained in the United States since his lawful October 2004 entry.

         Rodriguez was arrested in Rochester for driving while impaired on March 8, 2009. Two days later, the Department of Homeland Security (DHS) served Rodriguez with a Notice to Appear, charging him with being subject to removal under 8 U.S.C.§ 1182(a)(6)(A)(i) for having entered the United States without inspection and without being admitted or paroled. The Notice to Appear alleged that Rodriguez had entered the United States without inspection "at or near San Ysidro, CA, on or about October 2005" and that he was "not then admitted or paroled after inspection by an Immigration Officer." Rodriguez first appeared in Immigration Court for a hearing on June 17, 2009, and was advised of the charges against him. He later retained counsel.

         On November 13, 2009, the U.S. Citizenship and Immigration Services (USCIS) approved Rodriguez's daughter's petition for alien relative that she had filed on Rodriguez's behalf. Rodriguez thereafter moved to terminate removal proceedings so that he could adjust his status to that of a lawful permanent resident. Among the exhibits he attached to the motion was a copy of a document entitled, "TECS II - I-94 Arrival/Departure Display."[1] The document indicated that Rodriguez had entered the United States on October 6, 2004, and that he had departed by plane from Houston, Texas, at 2:24 p.m. on January 21, 2005, on Continental Airlines flight 1424.[2] The TECS-II document did not indicate any later entries into the United States.

         By written response dated January 4, 2010, DHS "advis[ed] the Immigration Court that [DHS] does not oppose respondent's motion seeking . . . to terminate this proceeding." The response was filed on January 7, 2010. The IJ, however, had denied Rodriguez's motion to terminate two days earlier, on January 5, 2010, stating, "The Notice to Appear alleges a different entry date and the [TECS-II document] reflects a departure date after the inspected admission. Facts need to be resolved."

         The central dispute in Immigration Court thus became whether Rodriguez left the United States on January 21, 2005. As the government explained in its brief to this court, "a dispute arose as to whether Rodriguez's most recent entry into the United States was without being admitted or paroled, or if he had overstayed a prior lawful entry on October 6, 2004[, ] and remained without having departed since that time." Resolution of this dispute was crucially important to Rodriguez, because if the IJ determined that Rodriguez left the country on January 21, 2005, and thereafter entered without inspection and without admission or parole, he would be deemed inadmissible and would be ineligible to adjust his status to that of a lawful permanent resident. See 8 U.S.C. §§ 1182(a)(6)(A)(1); 1255(a).

         Rodriguez denied that he had entered the United States without inspection and without admission or parole. During a hearing on February 3, 2010, he requested a continuance to present to DHS evidence that he did not depart the United States on January 21, 2005. The parties discussed a Record of Deportable Alien (I-213) that was signed by Immigration Enforcement Agent Brad Burrows on March 10, 2009 (final I-213). The final I-213 stated, "SUBJECT claims to have last entered the U.S. on or about October 2005 at or near San Ysidiro [sic], CA. SUBJECT was not inspected or admitted by an Immigration Officer at a designated Point of Entry." Rodriguez argued that Agent Burrows did not speak Spanish very well and that Burrows wrote down that Rodriguez had entered the United States in October 2005 despite the fact that Rodriguez told Burrows that he had entered in October 2004 or 2005.

         During the next hearing, on June 23, 2010, Rodriguez again denied both that he had departed on January 21, 2005, and that he had entered without inspection and admission or parole in October 2005. He argued that the TECS-II document was factually inaccurate and that he had provided DHS with documents that established his presence in the United States on January 21, 2005, and continuously thereafter. Counsel for the DHS agreed that the departure information set forth on the TECS-II document "appears to be the heart of the issue." DHS counsel also informed the IJ that the Mexican Consulate had notified DHS of another Francisco Rodriguez Quiroz, but that it refused to provide any further information about that person. After discussing some of the evidence, the IJ again continued the matter, scheduling time in August 2010 for a contested removal hearing.

         Before the hearing, Rodriguez moved for the issuance of a subpoena, requesting that Agent Burrows be summoned to testify. The motion alleged that Burrows was the source of inaccurate information set forth in the Notice to Appear. DHS opposed the motion, arguing that the evidence was not essential to the resolution of the proceedings, because once Rodriguez admitted alienage, "the burden of proof shifted to [Rodriguez] to show time, place[, ] and manner of entry." The IJ denied the motion, checking a box that stated, "The court agrees with the reasons stated in the motion." Also before the hearing, DHS submitted a witness list, requesting that Immigration Enforcement Agent Jennifer Williams be permitted to testify. According to DHS, Williams had "encountered [Rodriguez] . . . at the Olmstead [sic] County Jail on March 9, 2009" and would testify "as to statements made by [Rodriguez], specifically with regard to time, place[, ] and manner of [his] last entry into the United States."

         During the August 25, 2010, hearing, Rodriguez objected to the admission of the final I-213 that had been completed by Agent Burrows. He sought to cross-examine Burrows about the alleged errors in the document and establish that Burrows was not fluent in Spanish. The IJ admitted the exhibit, stating that Rodriguez could "present evidence relating to what information he disagrees with in the I-213" and that "if [Rodriguez] is going to testify concerning the inaccuracies in the I-213, I'll have his direct testimony versus an I-213." The IJ also admitted a handwritten draft I-213 that was completed by Agent Williams on March 9, 2009 (draft I-213), and in which Williams had written that Rodriguez last entered the United States in September 2004, writing on the form, "Admit EWI." According to the IJ, "EWI is a well-known abbreviation for entry without inspection." The IJ denied Rodriguez's request that Williams be required to testify, and DHS did not call her as a witness.

         The IJ reiterated that Rodriguez bore "the burden of establishing date, place, and manner of entry" and that because there was evidence that he had departed the United States on January 21, 2005, Rodriguez was required to prove "entry subsequent to that date." Rodriguez responded that he could not prove any subsequent entry "because he did not leave on that date." Instead, Rodriguez claimed that the documentary evidence he presented-including bank and medical records-established that he had remained in Rochester on January 21, 2005. The IJ and DHS counsel then engaged in the following exchange about DHS's evidence:

[IJ:] [A]ll the Government has is the, the [TECS-II] print-out and whatever you're going to offer as far as the testimony of the person who interviewed him in, in the prison or the jail?
[A:] That's right, Your Honor. . . . [My] perspective is the respondent appears to be utilizing the TECS record to demonstrate an entry in 2004, . . . the end goal in sight of being able to adjust status, and the question is if he rel[ies] on that entry in October of 2004, there is an exit associated with that date.

         When asked what evidence established that Rodriguez lawfully entered the United States in October 2004, Rodriguez's counsel replied that the replacement I-94 form established a lawful entry. The IJ pointed out that a problem arose if the TECS-II document was the source of the information set forth in the I-94 because the TECS-II document also showed a departure. After some discussion, the IJ stated, "I think we can safely say that he established that he entered with a border-crossing card on October 6, 2004. So he's got a lawful entry, but then we have to deal with this departure information . . . ." The IJ inquired about the source of the departure information set forth on the TECS-II document, since "the only thing that indicates he ever left . . . was that one entry [on the TECS-II document]." ...


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