The Hon. Kimba M. Wood, Senior Judge of the United * States District Court for the Southern District of New York, sitting by designation. The Hon. Rosemary S. Pooler, originally assigned to ** this panel, did not participate in the consideration of this appeal. The remaining two members of th panel, who are in agreement, have determined this matter. See Second Circuit Internal Operating Procedure E(b); 28 U.S.C. § 46(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). 09 -35 63 -ag Gaitan-Cortez v. Holder BIA Monta nte, IJ A088 186 070 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE P RE C E D E N TIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2 0 0 7 , I S PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE E I T H E R T H E FEDERAL APPENDIX OR AN E L E CTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 16 day of March, two thousand and ten. th 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Circuit Judge, 9 KIMBA M. WOOD, * 10 District Judge . ** 11

_________________________________________ 12 13 JOSE AMILCAR GAITAN-CORTEZ, 14 Petitioner , 15 16 v. 09-3563-ag 17 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_________________________________________ 222 1 FOR PETITIONER: Jose Amilcar Gaitan-Cortez, pro se, 2 West New York, NJ. 3 4 FOR RESPONDENT: Jessica Segall, Trial Attorney, 5 Office of Immigration Litigation 6 (Tony West, Assistant Attorney 7 General; Leslie McKay, Assistant 8 Director, Office of Immigration 9 Litigation, on the brief), United 10 States Department of Justice, 11 Washington, D.C. 12 1 3 UPON D U E C O N S I D E RA T I O N o f t h i s p e t i t i o n f o r r e v i e w of a 1 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 5 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 6 is DENIED. 1 7 Petitioner J o se Amilcar Gaitan-Cortez, a native and 1 8 citizen of El Salvador, seeks review of the July 24, 2009, 1 9 order of the BIA affirming the August 4, 2008, decision of 2 0 Immigration Judge (“IJ”) Philip J. Montante, Jr., ordering him 2 1 removed to El Salvador. In re Jose Amilcar Gaitan Cortez, No. 2 2 A 088 186 070 (B.I.A. July 24, 2009), aff’g No. A 088 186 070 2 3 (Immig. Ct. Buffalo, N. Y . A ug. 4, 2008). We assume the 2 4 parties’ familiarity with the underlying facts of the ca se, 2 5 procedural history, and issues for review on appeal. 2 6 Under the circumstances of this case, this Court reviews 2 7 the decision of the IJ as supplemented by the BI A . See Yan 2 8 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review3 1 the agency’s factual findings under the substantial evidence 2 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 3 494 F.3d 281, 289 (2d Cir. 2007). The Court reviews de novo 4 que s t i o n s o f l a w a n dt h e a p p l i c a t i o n o f l a w t o u n d i s puted 5 fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 6 Due process in removal procee d i n gs requires “notice” to 7 the alien “of the nature of the charges and a meaningful 8 opportunity to be heard,” Pierre v. Holder, 588 F.3d 767, 776 9 (2d Cir. 2009) (internal quotation mark omitted), and that the 1 0 proceedings be otherwise fundamentally fair, Xiao Ji Chen v. 1 1 U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir. 2006), 1 2 vacated on other grounds, 471 F.3d 315 (2d Cir. 2006); see 1 3 also Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007). 1 4 Even where an alien shows that due process was denied, he can 1 5 prevail on l y if he shows “some cognizable prejudice fairly 1 6 attributable to the challenged process.” Gar c ia-Villeda v. 1 7 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal quotation 1 8 marks omitted). 1 9 In t h i s c a s e , w e c o n c l u d e t h a t t h e I Jd i dn o t v i o late 2 0 Gaitan-Cortez’s due process rights by failing to provide him 2 1 with an opportunity to cross-examine the Border Patrol agent 2 2 who prepared his Form I-213 Record of Deportable/Inadmissible4 1 Alien, on which the IJ based his conclusion that Petitioner 2 was removable. We have held that “a Form I-213 is 3 presumptively reliable and can be admitte d i n deportation 4 proceedings without giving the alien the opportunity to cross5 examine the document’s author, at least when the alien has put 6 forth no evidence to contradict or impeach the statements in 7 the report.” See Felzcerek v. INS, 75 F.3d 112, 117 (2d Cir. 8 1996). Although Petitioner argues that he was not afforded an 9 opportunity to present such evidence, he was served with the 1 0 I-213 form at hi s f i r s t h earing, in September 2007. At his 1 1 second hearing, near l y a y e a r later in August 2008, the IJ 1 2 asked Petitioner’s attorney if he had “any evidence . . . to 1 3 even suggest that the contents of the [Form I-213] did not 1 4 relate to [Petitioner] or that the information is erroneous or 1 5 that it was t h e r esult of coercion or duress?” App. 86. 1 6 Petitioner’s attorney responded that he did not, but explained 1 7 that h e had filed a Freedom of Information Act (“FOIA”) 1 8 inquiry to discover whether Gaitan-Cortez had previously filed 1 9 any applications for legal immigration status. However, when 2 0 the IJa s k e di f h e h a da n ye v i d e n c e o f t h e i n q u i r y , h is 2 1 attorney replied that he did not. T herefore, Petitioner’s 2 2 assertion to this Court t h a t the IJ did not allow him an 2 3 opportunity to come forward with evidence t o r e b ut the5 1 contents of the I-213 is without merit. The asserti o n t hat 2 Petitioner’s attorney challenged the factual accuracy of the 3 I-213's contents is similarly unsup p o r t ed. See, e.g., 4 Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (unsworn 5 statements of an attorney are not evidence) . Petitioner 6 presented no actual evidence that he ha d ever filed any 7 application for relief, o r that his attorney had filed the 8 FOIA request as h e c l aimed. Accordingly, Gaitan-Cortez’s 9 assertion that the IJ violated his due process rights fails. 1 0 We have carefully considered Petitioner’s remaining 1 1 arguments and conclude that they are without merit. For the 1 2 foregoing reasons, the petition for review is DENIED. 13 1 4 FOR THE COURT: 1 5 Catherine O’Hagan Wolfe, Clerk 16 17