* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

** Nickey and Carol Deane are the parents of Duane, Denyse,

and Daniella. See blue brief, 2.

United States Court of Appeals

Fifth Circuit

FILED

April 23, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60722

Summary Calendar

 

NICKEY DEANE; CAROL ANGELINE DEANE; DUANE ANDRE DEANE; 

DENYSE DEANE, DANIELLA ALANA DEANE,

Petitioners,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A75-947-568

BIA No. A75-947-565

BIA No. A75-947-566

BIA No. A75-947-569

BIA No. A75-947-570

--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

 Nickey, Carol, Duane, Denyse, and Daniella Deane** have

filed a consolidated petition for review of the Board of

Immigration Appeals’ (BIA’s) order in their removal proceedings. 

They argue that the immigration judge (IJ) erred in determining
No. 03-60722

-2-

that they were removable based solely on uncontroverted 

Non-Immigrant Information System (NIIS) reports which showed

the name, date of birth, and country of birth of each of the

petitioners, and which showed that each of the petitioners

had entered the United States as visitors in 1993 but had not

departed. They argue that the NIIS reports were never properly

authenticated or verified by the Immigration and Naturalization

Service (INS). 

 The test for admissibility of evidence in deportation

proceedings is whether the evidence is probative and

fundamentally fair so as not to deprive the alien of due

process. Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir.

1990). The Federal Rules of Evidence are not applicable. Id. 

Whether the BIA erred in relying on the NIIS reports is a

question of law that this court reviews de novo. See Lopez-Gomez

v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001)(BIA rulings on

questions of law are reviewed de novo); see also Yongo v. INS,

355 F.3d 27, 30 (1st Cir. 2004) (reviewing, de novo, a claim that

BIA relied on unauthenticated documents).

 “[O]fficial INS documents have been admitted in deportation

proceedings . . . when the person to whom the document refers

does not attempt to impeach the information in the document.” 

Bustos-Torres, 898 F.2d at 1056. Moreover, the requirement of

authentication “is satisfied by evidence sufficient to support

a finding that the matter in question is what the proponent
No. 03-60722

-3-

claims.” McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558,

562 (5th Cir. 1998). Each of the NIIS reports offered into

evidence contained a stamp certifying that they were reports

obtained from INS records of which the Attorney General was the

legal custodian. The agent who offered the reports testified

regarding the source of the information in the reports and

explained how the reports were generated. This information was

sufficient to establish the authenticity of the reports. We find

the decision in Matter of Martinez, 16 I. & N. Dec. 723, 724,

1979 WL 44437 (BIA Apr. 25, 1979), to be inapposite. 

 During their testimony at the hearing, the petitioners

admitted their identities but invoked the Fifth Amendment in

response to all further questioning. Although their attorney

elicited testimony that information contained in NIIS reports

might not be correct, the petitioners made no attempt to show

that the information in the reports before the IJ were, in fact,

incorrect. Under such circumstances, the BIA did not err in

determining that the INS established deportability by clear and

convincing evidence. See Hernandez-Garza v. INS, 882 F.2d 945,

947 (5th Cir. 1989). 

 Accordingly, the petition for review is DENIED. 

We do not consider the petitioners’ argument that the IJ

erred in determining that their motion to suppress was moot.

The petitioners’ motion for costs and attorney’s fees is DENIED. 

See 5TH CIR. R. 47.8.2(a).