* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 21 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ANTONIO DAVILA PONCE,

Petitioner,

v. JOHN ASHCROFT, Attorney General of the United States,

Respondent. No. 02-9557 (INS No. A74 443 682) (Petition for Review)

ORDER AND JUDGMENT *

Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and HENRY , Circuit Judge.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Antonio Davila Ponce seeks review of a B oard of Immigration Appeals (BIA) order affirming without an opinion th e immigration judge’s (IJ)1 The INS no longer exists. Its functions are now pe rformed by the United

States Citizenship and Immigration Services within the Department of Homeland Security. Hang Kannha Yuk v. Ashcroft , 355 F.3d 1222, 1224 n.3 (10th Cir. 2004). -2- removal decision that he was inadmissible under 8 U .S.C. § 1182(a)(6)(C)(ii) as an “alien who . . . has falsely represented[] himse lf . . . to be a citizen of the United States for any purpose or benefit under . . . Federal . . . law.” Petitioner argues (1) the IJ denied him due process by relying on evidence he had no opportunity to confront and by denying him a contin uance of the voluntary departure hearing; (2) the BIA erred in affirming t he IJ’s conclusion that he is inadmissible under § 1182(a)(6)(C)(ii); and (3) the BIA erred in affirming the IJ’s decision without issuing an opinion. Exercising ju risdiction under 8 U.S.C. § 1252, we reject petitioner’s arguments and deny the petition for review. Petitioner is a native and citizen of Mexico. He e ntered the United States without inspection in March 1995. In October 1997, he submitted an application for a United States passport, accompanied by a frau dulent Colorado birth certificate. Although he was charged with making afalse statement in a passport application in violation of 18 U.S.C. § 1542, he pl ed guilty to possessing an identification document produced without lawful aut hority in violation of 18 U.S.C. § 1028(a)(6), (b)(5). The Immigration and Naturalization Service (INS) 1 initially charged-3-

petitioner as removable under 8 U.S.C. § 1182(a)(6) (A)(i) for being present without authorization. Later, the INS also charged him as removable under § 1182(a)(6)(C)(ii) for falsely representing himsel f as a United States citizen seeking to obtain a benefit under federal law. At the hearing before the IJ, petitioner admitted he was removable because he ent ered the country without inspection, but denied removability for falsely rep resenting himself as a United States citizen. In his oral decision, the IJ found that petitioner did make a false claim of United States citizenship in order to proc ure a passport under the laws of the United States. The IJ ordered petitioner remov ed to Mexico and denied voluntary departure. The BIA summarily affirmed the IJ’s decision. See 8 C.F.R. § 3.1(a)(7) (now codified at 8 C.F.R. § 1003.1(a)(7 )). Petitioner argues the IJ denied him due process, be cause the IJ failed to allow him to confront the witnesses whose testimonywas used against him. Specifically, he maintains an unsigned United State s Department of State Diplomatic Security Service report, the affidavit o f Department of State Special Agent Christopher St. Onge, the arrest warrant and the criminal complaint should not have been given any weight because he did not h ave an opportunity to confront the authors of the documents and because the documents contained facts never established in court. Although petitioner co ncedes these documents were admissible, he argues that the IJ’s giving them sub stantial weight denied him a-4-

fundamentally fair hearing. Petitioner further arg ues the documents do not establish that he falsely represented himself to be a United States citizen. We review claims of a denial of due process in a re moval proceeding de

novo. Sanchez-Cruz v. INS , 255 F.3d 775, 779 (9th Cir. 2001). “[I]ndividual s subject to deportation are entitled to procedural d ue process, which provides an opportunity to be heard in a meaningful time and in a meaningful manner.” Woldemeskel v. INS , 257 F.3d 1185, 1192-93 (10th Cir. 2001) (quotatio ns omitted). Petitioner received that. The INS submitted the documents to the Immigration Court with service on petitioner on Apr il 10, 1998, R. at 61-62, long before the December 1, 1998 hearing. Despite knowi ng of this evidence, petitioner presented no evidence on his own behalf. Nor did he ask to confront any of the authors of the documents. To the extenthe argues the IJ gave too much weight to the evidence, we may not weigh the evidence. See Refahiyat v.
INS , 29 F.3d 553, 556 (10th Cir. 1994). We reject petitioner’s assertion that the evidence before the IJ did not establish he falsely represented himself to be a Un ited States citizen. His admissions that he is a citizen of Mexico and that he presented a false Colorado birth certificate in order to obtain a United State s passport, R. at 39, 41, alone are substantial evidence to support removal under § 1182(a)(6)(C)(ii). Cf. Pichardo
v. INS , 216 F.3d 1198, 1199-1201 (9th Cir. 2000) (conclud ing petitioner was-5-

inadmissible under § 1182(a)(6)(C)(ii) after he was convicted of making false claim of United States citizenship, through use of false birth certificate, in violation of 18 U.S.C. § 911 when trying to enter U nited States). Thus, we cannot say that the IJ’s decision that petitioner was subj ect to removal “is contrary to what a reasonable factfinder would have been compelled to conclude.” Vatulev v. Ashcroft , 354 F.3d 1207, 1211 (10th Cir. 2003). Next, petitioner contends the IJ’s refusal to conti nue the hearing for voluntary departure denied him due process, asserti ng he had no notice voluntary departure would be addressed at the December hearin g. We disagree. Although the IJ informed the parties the December hearing wo uld determine eligibility for adjustment and availability of waiver, R. at 36, th e hearing was intended to cover all aspects of removal, including voluntary departu re, as it was a continuation of the removal proceedings. Moreover, petitioner has not shown prejudice. See Michelson v. INS , 897 F.2d 465, 468 (10th Cir. 1990). The IJ consi dered the equities he presented, and he does not indicate what additional evidence he would have presented if the IJ had granted a continuance. The IJ therefore did not deny petitioner due process. To the extent any part of petitioner’s argument is not based on due process, we have no jurisdiction to re view the denial of voluntary departure. See 8 U.S.C. § 1229c(f). Finally, petitioner argues the BIA erred in summari ly affirming the IJ’s-6-

decision. This argument is foreclosed by recent Tenth Circuit authority. See Sviridov v. Ashcroft , 358 F.3d 722, 726-27 (10th Cir. 2004); Batalova v. Ashcroft , 355 F.3d 1246, 1253-54 (10th Cir. 2004); Hang Kannha Yuk , 355 F.3d at 1232. Petitioner also maintains that review by a single b oard member was inappropriate in this case. It makes no difference whether the B IA acted through a single member, since we can directly and fully review the IJ’s decision, which the BIA adopted. See Batalova , 355 F.3d at 1253 & n.8. As indicated above, our review reveals no error in the IJ’s decision. See id. at 1253. Thus, the BIA appropriately streamlined this case. See Sviridov , 358 F.3d at 727 (holding this court can review Board member’s decision to streamline). For the above reasons, we DENY the petition for review.

Entered for the Court
Stephanie K. Seymour Circuit Judge