** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **
Executive Office for Immigration Review
Board of Immigration Appeals
Thalassa Kingsnorth, Esquire
Dominique J. Honea
Assistant Chief Counsel
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] – Present without being admitted or paroled
Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(2)(A)(i)(I)] – Crime involving moral turpitude
The Department of Homeland Security (hereinafter “DHS”) appeals from the decision of the Immigration Judge dated September 4, 2009, that terminated the respondent’s removal proceedings as the DHS had failed to meet its burden to establish the respondent’s alienage. The appeal will be sustained and the record remanded.
We review the findings of fact, including determinations of credibility, made by the Immigration Judge under a clearly erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i). All other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, are reviewed under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(ii).
The DHS contends that the Immigration Judge erred by excluding from evidence the Record of Deportable/Inadmissible Alien (Form 1-213), a printout of a DHS previous encounters log, and a DHS Record of Sworn Statement in Affidavit Form (I.J. at 3-4; Exhs. 3, 5, 8). The DHS also contends that the Immigration Judge erred in not allowing a continuance so that it could authenticate these records.
The respondent has testified that he was born abroad (Tr. at 45). This admission raises a presumption of the respondent’s alienage and shifts the burden to him to establish his lawful status in the United States. 8 U.S.C. §§ 240(c)(2), (c)(3)(A); Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000); Matter of Gonzalez, 16 I&N Dec. 44 (BIA 1976).
The respondent contends that he is mentally incompetent to testify regarding the circumstances of his birth. However, he has not presented any medical or other evidence to substantiate any disorder that would render him incapable of answering the basic question regarding his alienage. Therefore, we find the Immigration Judge’s credibility determination to be clearly erroneous (I.J. at 5).
Furthermore, the circumstances of this case show that it is likely the documents presented by the DHS are authentic. It was error for the Immigration Judge to deny the DHS’s request for a continuance in order to meet the technical requirements of authentication under Ninth Circuit precedent. Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995); Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th Cir. 2001) (authentication merely requires certification from the custodian of records that an I-213 or other DHS records are a true and correct copy).
Accordingly, the following order will be entered.
ORDER: The DHS appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Edward R. Grant
FOR THE BOARD