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). 

09-3563-ag

Gaitan-Cortez v. Holder

BIA

Montante, IJ

A088 186 070

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS 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 EITHER THE FEDERAL APPENDIX OR

AN ELECTRONIC 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 _________________________________________

22
2

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

13 UPON DUE CONSIDERATION of this petition for review of a

14 Board of Immigration Appeals (“BIA”) decision, it is hereby

15 ORDERED, ADJUDGED, AND DECREED, that the petition for review

16 is DENIED.

17 Petitioner Jose Amilcar Gaitan-Cortez, a native and

18 citizen of El Salvador, seeks review of the July 24, 2009,

19 order of the BIA affirming the August 4, 2008, decision of

20 Immigration Judge (“IJ”) Philip J. Montante, Jr., ordering him

21 removed to El Salvador. In re Jose Amilcar Gaitan Cortez, No.

22 A 088 186 070 (B.I.A. July 24, 2009), aff’g No. A 088 186 070

23 (Immig. Ct. Buffalo, N.Y. Aug. 4, 2008). We assume the

24 parties’ familiarity with the underlying facts of the case,

25 procedural history, and issues for review on appeal.

26 Under the circumstances of this case, this Court reviews

27 the decision of the IJ as supplemented by the BIA. See Yan

28 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
3

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 questions of law and the application of law to undisputed

5 fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 

6 Due process in removal proceedings 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

10 proceedings be otherwise fundamentally fair, Xiao Ji Chen v.

11 U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir. 2006),

12 vacated on other grounds, 471 F.3d 315 (2d Cir. 2006); see

13 also Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).

14 Even where an alien shows that due process was denied, he can

15 prevail only if he shows “some cognizable prejudice fairly

16 attributable to the challenged process.” Garcia-Villeda v.

17 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal quotation

18 marks omitted). 

19 In this case, we conclude that the IJ did not violate

20 Gaitan-Cortez’s due process rights by failing to provide him

21 with an opportunity to cross-examine the Border Patrol agent

22 who prepared his Form I-213 Record of Deportable/Inadmissible
4

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 admitted in 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

10 I-213 form at his first hearing, in September 2007. At his

11 second hearing, nearly a year later in August 2008, the IJ

12 asked Petitioner’s attorney if he had “any evidence . . . to

13 even suggest that the contents of the [Form I-213] did not

14 relate to [Petitioner] or that the information is erroneous or

15 that it was the result of coercion or duress?” App. 86.

16 Petitioner’s attorney responded that he did not, but explained

17 that he had filed a Freedom of Information Act (“FOIA”)

18 inquiry to discover whether Gaitan-Cortez had previously filed

19 any applications for legal immigration status. However, when

20 the IJ asked if he had any evidence of the inquiry, his

21 attorney replied that he did not. Therefore, Petitioner’s

22 assertion to this Court that the IJ did not allow him an

23 opportunity to come forward with evidence to rebut the
5

1 contents of the I-213 is without merit. The assertion that

2 Petitioner’s attorney challenged the factual accuracy of the

3 I-213's contents is similarly unsupported. 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 had ever filed any

7 application for relief, or that his attorney had filed the

8 FOIA request as he claimed. Accordingly, Gaitan-Cortez’s

9 assertion that the IJ violated his due process rights fails.

10 We have carefully considered Petitioner’s remaining

11 arguments and conclude that they are without merit. For the

12 foregoing reasons, the petition for review is DENIED. 

13

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17