22-6275

Vera Punin v. Garland

In the

United States Court of Appeals

For the Second Circuit

August Term, 2023

No. 22-6275

MAXIMO ROBERT VERA PUNIN,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of a Final Decision of the Board of 

Immigration Appeals

ARGUED: MARCH 4, 2024

DECIDED: JULY 16, 2024

Before: WALKER, NARDINI, and MENASHI, Circuit Judges.

Petitioner Maximo Robert Vera Punin seeks review of a 

decision of the Board of Immigration Appeals affirming a decision of 

an Immigration Judge that ordered his removal. The agency found 

that Vera Punin’s alienage was established by clear and convincing 
2

evidence based on a Form I-213, a record prepared by immigration 

officials when initially processing a person suspected of being 

illegally present in the United States. Vera Punin contends that the 

agency did not adequately explain why the I-213 established his 

alienage; that the I-213 was improperly considered and “inadequate 

as a matter of law” to prove he was a foreign citizen; that the agency’s 

treatment of the I-213 as presumptively reliable subverted the 

allocation of burdens among the parties; and that the temporary 

Appellate Immigration Judge who decided his appeal on behalf of the 

Board lacked authority to do so.

We conclude that (1) Vera Punin did not exhaust his argument 

that the agency failed to explain its reasoning, and so we lack 

authority to consider this claim; (2) the agency properly considered

Vera Punin’s I-213 because it is presumptively reliable and capable of

proving alienage by clear and convincing evidence, and Vera Punin 

did not rebut that presumption by providing any evidence to dispute 

the accuracy of the I-213’s contents or to show that the information in 

the report was obtained by coercion or duress; (3) the presumption of 

reliability afforded to an I-213 does not impermissibly shift the 

burden of proof away from the government; and (4) the temporary 

Appellate Immigration Judge was properly appointed by the 

Attorney General by the authority vested in him under 8 U.S.C. 

§ 1103(g)(1). Accordingly, we DENY IN PART and DISMISS IN 

PART the petition for review.

RAFAEL MORENO, Rule 46.1(e) Law Student

(Aadhithi Padmanabhan, Supervising 

Attorney, Alexis Turner-Lafving, Rule 

46.1(e) Law Student, Hannah Wardell, Rule 

46.1(e) Law Student, on the brief), Federal 

Appellate Immigration Clinic, University of 
3

Maryland Carey School of Law, Baltimore, 

MD; John H. Peng, Prisoners’ Legal Services 

of New York, Albany, NY, for Petitioner.

CHRISTOPHER G. GIEGER (Brian M. Boynton, 

Principal Deputy Assistant Attorney 

General, Kohsei Ugumori, Senior Litigation 

Counsel, Sarah K. Pergolizzi, Senior 

Litigation Counsel, on the brief), Civil 

Division, U.S. Department of Justice, 

Washington, DC, for Respondent.

Zoe Levine, Jessica Swensen, The Bronx 

Defenders, Bronx, NY, for Amici Curiae The 

Bronx Defenders, Brooklyn Defender 

Services, The Legal Aid Society, Make the 

Road New York, The New York Legal 

Assistance Group, UnLocal, Inc., in support 

of Petitioner.

WILLIAM J. NARDINI, Circuit Judge:

Petitioner Maximo Robert Vera Punin, a citizen of Ecuador, was 

ordered removed by immigration authorities after he was convicted 

in state court of multiple counts involving his rape of a young child. 

In re Maximo Robert Vera Punin, No. A208 834 568 (B.I.A. May 6, 2022), 

aff’g No. A208 834 568 (Immigr. Ct. Fishkill, N.Y. Dec. 8, 2021). He is 
4

presently serving a 25-year prison term and faces deportation upon 

completion of his sentence. In the meantime, he has brought this 

action challenging his removal order. Vera Punin does not contest 

that he has been convicted of crimes that render an alien removable. 

He is not seeking to revive asylum claims that he abandoned some 

time ago. He does not even claim to be a United States citizen; his 

argument is simply that the government committed errors in the 

course of proving that he’s not.

The Department of Homeland Security (“DHS”) served Vera 

Punin with a notice to appear (“NTA”) in September 2020, charging 

him with being a removable alien under various sections of the 

Immigration and Nationality Act (“INA”). Vera Punin declined to 

concede that he was not a United States citizen. To prove his alienage, 

DHS submitted a Form I-213—the official record that immigration 

officials prepare when initially processing a person suspected of 

being in the United States without lawful permission. In this case, the 
5

I-213 listed various pieces of information, including checks of 

numerous government databases, detailed personal information 

about Vera Punin and his family, his fingerprints, and a recitation of 

his previous removal from the United States after he (using a false 

name) was apprehended by the Border Patrol near Mexico. The 

Immigration Judge (“IJ”), and later the Board of Immigration Appeals 

(“BIA”), held that the I-213 was admissible and sufficient to prove 

Vera Punin’s alienage by clear and convincing evidence. Relying on 

this information, the immigration authorities issued an order of 

removal.

In his petition for review, Vera Punin contends that the agency 

did not adequately explain why the I-213 established his alienage; that

the I-213 was improperly considered and “inadequate as a matter of 

law” to prove he was a foreign citizen; that the agency’s treatment of 

the I-213 as presumptively reliable subverted the allocation of 

burdens among the parties; and that the temporary Appellate 
6

Immigration Judge who decided his appeal on behalf of the Board of 

Immigration Appeals did not have authority to do so.

We conclude that (1) Vera Punin did not exhaust his argument 

that the agency failed to explain its reasoning, and so we lack 

authority to consider this claim; (2) the agency properly considered

Vera Punin’s I-213 because it is presumptively reliable and capable of 

proving alienage by clear and convincing evidence, and Vera Punin 

did not rebut that presumption by providing any evidence to dispute 

the accuracy of the I-213’s contents or to show that the information in 

the report was obtained by coercion or duress; (3) the presumption of 

reliability afforded to an I-213 does not impermissibly shift the 

burden of proof away from the government; and (4) the temporary 

Appellate Immigration Judge was properly appointed by the 

Attorney General by the authority vested in him under 8 U.S.C. 

§ 1103(g)(1). Accordingly, we DENY IN PART and DISMISS IN 

PART the petition for review.
7

I. Background

According to the Department of Homeland Security, Vera 

Punin is a native and citizen of Ecuador who unlawfully entered the 

United States at an unknown date.

A. Initiation of Removal Proceedings

On September 21, 2016, New York state authorities charged 

Vera Punin with four crimes related to the sexual abuse of a minor.1 

These charges brought Vera Punin to the attention of DHS, and on 

August 1, 2017, he was apprehended by immigration officials outside 

the Suffolk County courthouse. On December 18, 2017, following a 

jury trial, Vera Punin was convicted of all four crimes and was 

1 Those four charges were: (1) rape in the first degree—sexual intercourse 

with another person who is less than 11 years old, in violation of N.Y. Penal Law 

§ 130.35.03; (2) criminal sexual act in the first degree with a child who is less than 

11 years old, in violation of N.Y. Penal Law § 130.50.03; (3) sexual abuse in the first 

degree—sexual contact when the other person is less than 11 years old, in violation 

of N.Y. Penal Law § 130.65.03; and (4) endangering the welfare of a child—acting

in a manner likely to be injurious to a child less than 17 years old, in violation of 

N.Y. Penal Law § 260.10.01.
8

sentenced principally to 25 years in prison. He began serving his term 

of imprisonment on January 5, 2018.

On September 24, 2020, DHS served Vera Punin with a notice 

to appear, which it filed with the immigration court, thereby 

commencing his removal proceedings. See 8 C.F.R. § 1239.1(a). The 

NTA charged Vera Punin with removability under 8 U.S.C. 

§ 1182(a)(6)(A)(i), as an alien present in the United States without 

being admitted or paroled; § 1182(a)(2)(A)(i)(I), as an alien convicted 

of a crime involving moral turpitude; and § 1182(a)(2)(B), as an alien 

convicted of two offenses, regardless of whether the offenses involved 

moral turpitude, where the aggregate sentence was at least five years.

B. Removal Proceedings

Prior to Vera Punin’s initial hearing, DHS submitted several 

documents to the immigration court, including a Form I-213, a New 

York state criminal rap sheet, an FBI criminal rap sheet, the conviction 

record for his 2017 convictions, and a copy of the decision affirming 
9

those convictions by the Second Department of the New York 

Supreme Court, Appellate Division. Vera Punin objected only to the 

admission of the I-213.

1. The Form I-213

A Form I-213, or a “Record of Deportable/Inadmissible Alien,” 

Certified Admin. Rec. (“CAR”) 249, is “an ‘official record’ prepared 

by immigration officials when initially processing a person suspected 

of being in the United States without lawful permission,” ZunigaPerez v. Sessions, 897 F.3d 114, 119 n.1 (2d Cir. 2018). Vera Punin’s I213 was prepared on August 1, 2017, the day that immigration 

officials arrested him outside the Suffolk County courthouse.

Vera Punin’s I-213 is three pages long. The first page lists basic 

identifying information, including Vera Punin’s date of birth, height, 

weight, and address, as well as a headshot photograph and 

fingerprints from his right and left index fingers. It states that Vera 

Punin’s country of citizenship is Ecuador. The first page also lists the 
10

names and nationalities of Vera Punin’s wife, mother, and father, who

are all listed as having Ecuadorian nationality. Further, under a 

category for aliases, the I-213 lists the name “ROBERTO LOPEZ, 

Maximo.” CAR 249. The first page is signed by a deportation officer, 

“J 4313 DICKERSON,” and an examining officer, “BANKS, B 1093.” 

Id.

The second page of the I-213 lists DHS’s then-current charges

against Vera Punin, id. at 250, which were being an inadmissible alien 

under Section 212 of the INA, 8 U.S.C. § 1182, and being an alien 

present without admission or parole under Section 212(a)(6)(A)(i), id.

§ 1182(a)(6)(A)(i). The I-213 then describes Vera Punin’s “Previous 

Criminal History,” explaining that he was arrested on September 28, 

2016, for “Sex Assault – Carnal Abuse” and “Statutory Rape – No 

Force,” and that those charges were still pending.2 CAR 250. It also 

2 As explained below, the narrative portion of the I-213 correctly identifies 

the date of Vera Punin’s arrest related to the sexual abuse of a minor as September 

21, 2016, not September 28. Compare CAR 250, with id. at 251; see also id. at 234 (Vera 
11

states that Vera Punin was convicted of driving under the influence 

on October 16, 2003.

Continuing on the second page, the I-213 lists various 

government databases under the heading “Records Checked”: TECS, 

NCIC, CLAIM, ATS-P, CIS, EARM, and CCD.3 Id. Next to TECS, 

Punin’s New York state criminal rap sheet listing the date of arrest as September 

21, 2016).

3 The record does not indicate what these database acronyms stand for. 

However, “[t]his Court may take judicial notice of any fact that ‘can be accurately 

and readily determined from sources whose accuracy cannot reasonably be 

questioned.’” Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 88 n.2 (2d 

Cir. 2012) (quoting Fed. R. Evid. 201(b)(2)). Accordingly, we note that (1) TECS, 

which derives its name from the former Treasury Enforcement Communications 

System, “is the principal system used by officers at the border to assist with 

screening and determinations regarding admissibility of arriving persons.” 

DHS/CBP/PIA-009(a) – TECS System: CBP Primary and Secondary Processing (TECS) 

National SAR Initiative, U.S. Dep’t of Homeland Sec. (May 19, 2022), 

https://www.dhs.gov/publication/tecs-system-cbp-primary-and-secondaryprocessing-tecs-national-sar-initiative [https://perma.cc/LZN3-7AWP]; see also

DHS/CBP/PIA-021 TECS System: Platform, U.S. Dep’t of Homeland Sec. (Mar. 31, 

2023), https://www.dhs.gov/publication/dhscbppia-021-tecs-system-platform

[https://perma.cc/7DXJ-HNTV]; (2) NCIC is the National Crime Information 

Center. See National Crime Information Systems, U.S. Dep’t of Just., 

https://www.justice.gov/tribal/national-crime-information-systems

[https://perma.cc/88EM-YJMQ]; (3) CLAIM is the Computer Linked Application 

Information Management System. See DHS/USCIS/PIA-016 Computer Linked 

Application Information Management System (CLAIMS 3) and Associated Systems, U.S. 

Dep’t of Homeland Sec. (Mar. 31, 2023), 

https://www.dhs.gov/publication/dhsuscispia-016-computer-linked-applicationinformation-management-system-claims-3-and [https://perma.cc/4NBJ-5UNM]; 
12

NCIC, CIS, and EARM is the notation “Pos,” and next to CLAIM, 

ATS-P, and CCD is the notation “Neg.” Id. The I-213 lists Vera 

Punin’s arresting agents as “W 4933 RODRIGUEZ,” “N 4322 

MERCADO,” “J 3762 ROTHERMEL,” and “D MARINO,” and states 

that Vera Punin had $9.80 in his possession when he was arrested. Id. 

Like the first page, the second page is signed by Deportation Officer

Dickerson.

Beginning at the bottom of the second page and continuing on 

to the third and final page of the I-213 is the narrative portion. It

explains that Vera Punin was arrested “without incident” on August 

(4) ATS-P is the Automated Targeting System-Passenger. See DHS/CBP/PIA-006 

Automated Targeting System, U.S. Dep’t of Homeland Sec. (Mar. 31, 2023), 

https://www.dhs.gov/publication/automated-targeting-system-ats-update

[https://perma.cc/L2DP-UHND]; (5) CIS is the Central Index System. See 

DHS/USCIS/PIA-009 Central Index System, U.S. Dep’t of Homeland Sec. (Mar. 31, 

2023), https://www.dhs.gov/publication/dhsuscispia-009-central-index-system

[https://perma.cc/P8E4-NNL6]; (6) EARM is the ENFORCE Alien Removal 

Module. See DHS/ICE/PIA-015 Enforcement Integrated Database, U.S. Dep’t of 

Homeland Sec. (Mar. 31, 2023), https://www.dhs.gov/publication/dhsicepia-015henforcement-integrated-database-eid-criminal-history-information-sharing

[https://perma.cc/4Q67-AQLV]; and (7) CCD is the Consular Consolidated 

Database. See Consular Consolidated Database (CCD), U.S. Dep’t of State (Nov. 2022),

https://www.state.gov/wp-content/uploads/2023/05/Consular-ConsolidatedDatabase-CCD-PIA.pdf [https://perma.cc/N33Q-CNHS].
13

1, 2017, in front of the “Suffolk County Court . . . pursuant to an I-200 

Warrant of Arrest” by “Long Island Fugitive Operations” as part of 

“Operation SOAR,” and then transported to Central Islip for 

processing. Id. at 250–51.

The I-213 then describes Vera Punin’s “Immigration History,” 

noting that he is a citizen of Ecuador, not the United States, and that 

he had previously been apprehended in the United States and 

deported:

VERA PUNIN is not a national or citizen of the United 

States. VERA PUNIN is a national and citizen of 

Ecuador. VERA PUNIN entered the United States at an 

unknown time and place without being inspected / 

admitted. VERA PUNIN was apprehended by the 

Border Patrol on or about October 6, 1999. VERA PUNIN 

claimed to be a national and citizen of Mexico and used 

the alias Maximo ROBERTO LOPEZ. VERA PUNIN was 

voluntarily returned to Mexico. VERA PUNIN reentered the United States without inspection.

Id. Vera Punin’s criminal history is then listed again.

The I-213 further describes Vera Punin’s family, stating that he

“claims to be married,” “claims to have three [U.S. citizen] children,” 
14

and “claims that the children live with the mother.” Id. The I-213 

further states that Vera Punin “claims to be in good health and is not 

currently taking medication.” Id. It also states that upon 

apprehension, Vera Punin, when given the opportunity to place a 

phone call, called his sister; was offered a meal; and was given the 

opportunity to contact the consulate of Ecuador. Like the first two 

pages, the last page of the I-213 is signed by Deportation Officer 

Dickerson.

2. Proceedings Before the Immigration Judge

At Vera Punin’s initial hearing on November 4, 2020, the IJ 

received Vera Punin’s NTA into the record. Vera Punin’s lawyers

indicated, however, that they needed more time to review DHS’s 

various documentary submissions, such as the I-213 and criminal rap 
15

sheets, and the IJ accordingly adjourned the hearing until January 13, 

2021.

At the hearing on January 13, Vera Punin’s counsel objected to 

the admission of the I-213, arguing that it did not identify the sources

of its information. The IJ admitted the I-213 over Vera Punin’s 

objection, explaining that there is “case law as to the presumptive 

reliability of the I-213,” and that he would give it “the appropriate 

weight.” CAR 69–70. Vera Punin then entered his plea denying

Allegations 1 through 4 and admitting Allegations 5 through 8 in the 

NTA. Allegations 1 through 4 alleged that Vera Punin is “not a citizen 

or national of the United States”; that he is “a native of Ecuador and 

citizen of Ecuador”; that he “arrived in the United States at or near an 

unknown place, on or about an unknown date”; and that he was “not 

then admitted or paroled after inspection by an Immigration Officer.” 

Id. at 282. Allegations 5 through 8 alleged that Vera Punin was 

convicted in 2017 of the four crimes related to sexual abuse of a minor.
16

Having admitted the I-213, the IJ found that Vera Punin’s 

alienage had been established and, accordingly, sustained Allegations 

1 through 4. The IJ also sustained Allegations 5 through 8 based on 

the record and Vera Punin’s admission to those Allegations. The IJ

then sustained all three charges of removability against Vera Punin

pursuant to Sections 212(a)(6)(A)(i), (a)(2)(A)(i)(I), and (a)(2)(B) of the 

INA, 8 U.S.C. §§ 1182(a)(6)(A)(i), (a)(2)(A)(i)(I), (a)(2)(B). Vera 

Punin’s counsel indicated that he would apply for asylum and related 

protection from removal.

On March 5, 2021, Vera Punin submitted an application for 

asylum and related protection from removal, which he withdrew on 

September 9, 2021. On September 13, 2021, Vera Punin filed a motion 

to terminate his proceedings. In the motion, Vera Punin renewed his 

objections to the I-213’s admissibility, arguing that the document 

contained indicia of unreliability because, among other things, it did 

not identify any source of its information. Vera Punin did not proffer 
17

any evidence contradicting any aspect of the I-213. He further argued 

that even if the I-213 were admissible, it did not establish his alienage 

by clear and convincing evidence. DHS opposed Vera Punin’s 

motion.

On December 8, 2021, the IJ, through an oral decision, denied

Vera Punin’s motion to terminate proceedings. The IJ reasoned that, 

to be admissible, a Form I-213 does not need to “expressly state the 

specific source of information for respondent’s alienage.” CAR 47. 

The IJ further explained that a “Form I-213 is a record routinely 

prepared by DHS officers in the course of their duties,” and that the 

officers rely on “numerous sources” in creating the document, such 

as “computer databases” and “fingerprint comparisons.” Id. Thus, 

“absent any proof that an I-213 contains information which is

incorrect or which is obtained by coercion or force, the form is 

inherently trustworthy and admissible.” Id. (citing Matter of Mejia, 16 

I. & N. Dec. 6, 8 (B.I.A. 1976)).
18

The IJ further noted that Vera Punin’s fingerprints were taken 

and that the I-213 indicated that various records had been checked, 

with four databases—TECS, NCIC, CIS, and EARM—coming back 

positive. In addition, Vera Punin appeared to provide some 

information about his family and health, and according to the 

Immigration History, he previously claimed to be a citizen of Mexico

using the alias Maximo Roberto Lopez. Thus, the IJ reasoned that 

“there appear[ed] to be numerous sources of information that DHS 

Officer Dickerson relied on when creating the Form I-213,” and the I213 should not be excluded just because “a DHS officer does not 

expressly state how he or she learned of respondent’s alienage.” Id.

at 48. Further, Vera Punin had not shown—or even argued—that any 

information contained in the I-213 “was false, inaccurate, or was 

obtained through improper means.” Id. Accordingly, the IJ admitted 

the I-213 into evidence and found it sufficient to establish Vera 

Punin’s alienage, although the IJ did not expressly state under what 
19

standard of proof he was evaluating the evidence. With alienage 

established, the IJ sustained the charges of removability, and given 

that Vera Punin had withdrawn his application for asylum and 

related protection from removal, ordered Vera Punin removed to 

Ecuador.

C. Proceedings Before the Board

Vera Punin timely appealed to the BIA, raising substantially the 

same arguments as he did before the IJ. He argued that the I-213 was 

unreliable and should not have been admitted into evidence because 

he himself was not the source for information regarding his alienage. 

In addition, Vera Punin argued that even if admissible, the I-213 was 

not sufficient to establish his alienage by clear and convincing 

evidence.

On May 6, 2022, a “temporary Appellate Immigration Judge[],” 

also called a “temporary Board member,” 8 C.F.R § 1003.1(a)(4), Elise 

Manuel, adopted and affirmed the IJ’s December 8, 2021, decision. 
20

The BIA explained that “[a]bsent evidence that a Form I-213 contains 

information that is incorrect or was obtained by coercion or duress, 

that document is considered ‘inherently trustworthy’ and admissible 

as evidence to prove alienage or deportability.” CAR 4 (quoting 

Matter of Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (B.I.A. 1999)). 

Because Vera Punin did not allege that any information in his I-213 

was incorrect or obtained by coercion and duress, the BIA held that 

the IJ properly admitted the I-213 into evidence and “that DHS met 

its burden of establishing [Vera Punin’s] alienage, by clear and 

convincing evidence, based on the contents of the Form I-213.” Id.

This petition for review followed.

II. Discussion

This Court’s jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(C), 

which provides that “no court shall have jurisdiction to review any 

final order of removal against an alien who is removable by reason of 

having committed” certain criminal offenses, including a crime 

involving moral turpitude, or two or more offenses with aggregate 
21

sentences of five years or more. Vera Punin, having qualifying 

convictions, concedes that § 1252(a)(2)(C) applies to him. However, 

§ 1252(a)(2)(D) further provides that § 1252(a)(2)(C) “shall [not] be 

construed as precluding review of constitutional claims or questions 

of law raised upon a petition for review.” Accord Alvarez v. Garland, 

33 F.4th 626, 637 (2d Cir. 2022). Accordingly, this Court may still 

review constitutional claims and questions of law raised in Vera 

Punin’s petition for review, which we review de novo, Dale v. Barr, 967 

F.3d 133, 138 (2d Cir. 2020). Where, as here, “the BIA adopts the 

decision of the IJ and merely supplements the IJ’s decision, . . . we 

review the decision of the IJ as supplemented by the BIA.” Chen v. 

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

A. Alienage

Whether a respondent is a United States citizen is a threshold 

issue in removal proceedings, and DHS bears the burden of 

establishing an individual’s alienage by clear and convincing 
22

evidence. 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(c) (“In the case 

of a respondent charged as being in the United States without being 

admitted or paroled, the Service must first establish the alienage of 

the respondent.”); see also Woodby v. INS, 385 U.S. 276, 286 (1966)

(holding that “no deportation order may be entered unless it is found 

by clear, unequivocal, and convincing evidence that the facts alleged 

as grounds for deportation are true”). Evidence meets the clear and 

convincing standard if it “place[s] in the ultimate factfinder an 

abiding conviction that the truth of its factual contentions are ‘highly 

probable.’” Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (citation 

omitted); see Jimenez v. Stanford, 96 F.4th 164, 190 (2d Cir. 2024). Once 

DHS proves alienage, the burden shifts to the alien to prove the time, 

place, and manner of his entry into the United States, which,

depending on the circumstances, might entitle him to remain lawfully 

in the country. See 8 U.S.C. § 1361. “If such burden of proof is not 
23

sustained, [the alien] shall be presumed to be in the United States in 

violation of law.” Id.

1. Reasoned Decision-Making

Vera Punin first argues that, at minimum, his petition for 

review should be granted because the IJ did not adequately explain 

why the I-213 established Vera Punin’s alienage by clear and 

convincing evidence, failing to even mention the clear and convincing 

standard as the relevant standard of proof. The government responds 

that Vera Punin did not administratively exhaust this argument

before the BIA. We agree with the government.

“Before a petitioner can seek judicial review of his removal 

decision, the INA requires that he exhaust all administrative remedies 

available to him.” Ojo v. Garland, 25 F.4th 152, 160 (2d Cir. 2022); see 

8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal 

only if . . . (1) the alien has exhausted all administrative remedies 

available to the alien as of right . . . .”)). “Statutory exhaustion 
24

requirements such as § 1252(d)(1) are ‘mandatory, and courts are not 

free to dispense with them.’” Foster v. INS, 376 F.3d 75, 77 (2d Cir. 

2004) (quoting United States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir.

2002)); cf. Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) 

(“[W]hile not jurisdictional, issue exhaustion is mandatory.”).

“To preserve an issue for judicial review, the petitioner must 

first raise it with specificity before the BIA.” Steevenez, 476 F.3d at 117. 

To be sure, “this Court will not limit the petitioner ‘to the exact 

contours of his argument below’ in determining whether the 

petitioner exhausted the issue . . . .” Id. (quoting Gill v. INS, 420 F.3d 

82, 86 (2d Cir. 2005)). A petitioner may still raise an issue on appeal 

if it is “either a ‘specific, subsidiary legal argument’ or ‘an extension 

of an argument raised directly before the BIA.’” Id. (quoting Gill, 420 

F.3d at 86) (alterations incorporated). But when an argument made 

to this Court cannot be closely matched up with a specific argument 
25

made to the BIA, it has not been properly exhausted and we cannot 

hear it.

Vera Punin did not exhaust his argument that the IJ failed to 

articulate the relevant standard of proof or explain why the I-213 

satisfied that standard of proof to establish his alienage. Vera Punin 

argued before the BIA that the IJ “erred” in both admitting the I-213 

and finding that it satisfied DHS’s burden of proof to establish his

alienage. CAR 14, 21. But a claim that the IJ made the wrong decision is 

not equivalent to the argument that the IJ failed to explain his decision.

Nor can Vera Punin’s argument that the IJ did not engage in reasoned 

decision-making be considered just a slightly re-framed “extension” 

of the claims he raised before the Board. Gill, 420 F.3d at 86. A claim 

of error does not necessarily suggest that the reviewing court cannot

discern the reasons for the lower court’s decision, and Vera Punin did 

not otherwise suggest before the Board that the IJ’s reasoning was 

deficient in that sense. Further, Vera Punin did not argue to the BIA 
26

that the IJ failed to explicitly state the relevant standard of proof that 

DHS must meet to prove his alienage (which the BIA articulated in 

any event). See id. at 4. We accordingly dismiss these unexhausted

aspects of Vera Punin’s petition.4

2. Admissibility of the I-213

Vera Punin further argues that the “government failed to 

produce evidence that could, as a matter of law, meet the clear and 

convincing standard of proof” necessary to establish his alienage. 

Petitioner’s Br. at 26. Vera Punin now disclaims that he contests the 

I-213’s “admissibility,” contrary to his arguments before the agency, 

and contests only whether the I-213 provided clear and convincing 

evidence of his alienage. Nonetheless, in substance, the arguments 

that Vera Punin now makes go essentially to the propriety of the 

4 Vera Punin argues that he was not required to exhaust this argument, 

because he challenges similar deficiencies of reasoning in the BIA’s decision, and 

a petitioner need not exhaust a claim that the BIA itself erred. See Santos-Zacaria v. 

Garland, 598 U.S. 411, 424–25 (2023). But this argument fails. Vera Punin cannot 

now fault the BIA for failing to offer a more lengthy explanation than did the IJ, 

when he never complained to the BIA about the level of detail in the IJ’s decision

to begin with.
27

agency’s consideration of the I-213. Accordingly, we construe Vera 

Punin’s petition for review as a due process challenge to the 

admissibility of evidence, which we have jurisdiction to review under 

8 U.S.C. § 1252(a)(2)(D). See, e.g., Felzcerek v. INS, 75 F.3d 112, 115 (2d 

Cir. 1996).

“[A]gencies are not courts.” Garcia v. Garland, 64 F.4th 62, 70 

(2d Cir. 2023). And so, “[t]he Federal Rules of Evidence do not apply 

in removal proceedings . . . .” Zerrei v. Gonzales, 471 F.3d 342, 346 (2d 

Cir. 2006). Rather, “[e]vidence is admissible provided that it does not 

violate the alien’s right to due process of law.” Lin v. U.S. Dep’t of 

Just., 459 F.3d 255, 268 (2d Cir. 2006). And “[t]he due process test for 

admissibility of evidence in a deportation hearing is whether the 

evidence is probative and whether its use is fundamentally fair.” 

Felzcerek, 75 F.3d at 115 (quotation marks omitted); see also Matter of 

Ponce-Hernandez, 22 I. & N. Dec. at 785 (similar).
28

In this context, a Form I-213 is “properly characterized as 

hearsay” because it is “offered to prove the truth of the statements 

contained therein”—as relevant here, that the subject of the form is an 

alien. Felzcerek, 75 F.3d at 115. We have concluded that an I-213

“evidence[s] strong indicia of reliability” because it is a “record[]

made by public officials in the ordinary course of their duties,” and 

“public officials are presumed to perform their duties properly and 

generally lack a motive to falsify information.” Id. at 116. In other 

words, a “Form I-213 contain[s] guarantees of reliability and 

trustworthiness that are substantially equivalent to those required of 

documents admissible under [Federal] Rule [of Evidence] 803(8),” or 

public records that are not excluded by the rule against hearsay. Id.; 

see Fed. R. Evid. 803(8). Accordingly, we have explained that a Form 

I-213 is “presumptively reliable and can be admitted in deportation 

proceedings without giving the alien the opportunity to crossexamine the document’s author, at least when the alien has put forth 
29

no evidence to contradict or impeach the statements in the report.”

5

 

Felzcerek, 75 F.3d at 117; see also Matter of Gomez-Gomez, 23 I. & N. Dec. 

522, 524 (B.I.A. 2002) (“[A]bsent any evidence that a Form I-213

contains information that is inaccurate or obtained by coercion or 

duress, that document, although hearsay, is inherently trustworthy 

and admissible as evidence to prove alienage or deportability.”); 

Matter of Ponce-Hernandez, 22 I. & N. Dec. at 785 (similar); Matter of 

Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988) (similar); Matter of Mejia, 

16 I. & N. Dec. at 8 (similar). If, however, “the reliability of the form 

is somehow undermined,” further scrutiny is required, including 

possibly requiring the officer who completed the I-213 to testify. 

Felzcerek, 75 F.3d at 117.

5 Amici offer anecdotes purportedly demonstrating that Forms I-213 

sometimes contain inconsistent or otherwise unreliable information—though in 

nearly all of these cases, amici do not claim that the subjects described in those

reports were actually U.S. citizens. These isolated narratives do not establish the 

sort of systematic defects that might suggest as a general matter that the admission 

of Forms I-213 in removal proceedings is fundamentally unfair. 
30

Vera Punin argues that the BIA has considered an I-213 to be 

“inherently trustworthy” only when the subject of the I-213 directly 

admitted his alienage to the officer preparing the I-213, which Vera 

Punin did not do. Instead, he contends that the information in his I213 comes from unknown or unreliable third-party sources, such as 

the information regarding his apprehension under the alias Maximo 

Roberto Lopez by an unnamed Border Patrol agent in 1999. But Vera 

Punin misreads the BIA’s precedent. The BIA has “consistently held” 

that an I-213 is generally considered “inherently trustworthy and 

admissible as evidence to prove alienage or deportability” unless it 

has been shown that the information is inaccurate or was obtained by 

coercion or duress. Matter of Gomez-Gomez, 21 I. & N. Dec. at 524. An 

I-213 contains information from a multitude of sources. The BIA has

not limited the presumption of an I-213’s reliability to instances where 

the alleged alien has directly admitted his alienage to the officer 

preparing the form. And this Court has agreed with the BIA, 
31

explaining that an I-213 is considered presumptively reliable because 

it is prepared by a public official in the ordinary course of his duties, 

with the presumption of regularity that entails. Felzcerek, 75 F.3d at 

116.

To be sure, there might be unusual circumstances in which an 

alleged alien need not bring forth evidence to undermine an I-213’s 

presumed reliability. It is conceivable that a particular I-213 might be 

so irregular as to be “facially deficient,” which “would render it 

inadmissible.” Matter of Ponce-Hernandez, 22 I. & N. Dec. at 786. 

Contrary to Vera Punin’s assertion, however, his I-213 is not remotely 

so deficient. The I-213 includes several indicia of trustworthiness, 

including that (1) it includes Vera Punin’s photo and fingerprints; (2)

it identifies the official government databases that were searched, and 

which came back with positive results; (3) it reflects that Vera Punin 

was interviewed and gave responses about his family and health; (4)

it identifies Vera Punin as having been previously apprehended and 
32

removed to Mexico in 1999 under the name Maximo Roberto Lopez

(and having claimed to be a Mexican citizen); and (5) each page is 

signed by Deportation Officer Dickerson. By mentioning these 

indicators, of course, we do not suggest that any particular indicators 

(much less any combination of them) are required in any given case. 

The point is simply that this I-213 bears the usual hallmarks of 

regularity. And it is highly probative of Vera Punin’s alienage 

because it clearly reports that he is a citizen of Ecuador, not of the 

United States. Further, as has been noted, Vera Punin did not provide 

any evidence to dispute the accuracy of the information in his I-213 or 

claim that it was obtained through improper means, such as coercion 

or duress. Accordingly, the agency properly admitted the I-213 into 

evidence as a reliable document. And once the I-213 was admitted as 

evidence, the agency was free to rely upon it when determining that 

there was clear and convincing evidence of Vera Punin’s alienage. 

See, e.g., Barradas v. Holder, 582 F.3d 754, 764 (7th Cir. 2009) (holding 
33

that a Form I-213 “constitute[d]reasonable, substantial, and probative 

evidence” of the petitioner’s conviction listed on the form); Matter of 

Gomez-Gomez, 23 I. & N. Dec. at 524 (“[A] Form I-213 is admissible and 

ordinarily sufficient for a prima facie case of deportability . . . .”

(quotation marks omitted)).6

3. Burden of Proof

Vera Punin further argues that the presumption of reliability 

afforded an I-213—and the concomitant obligation on the alleged 

alien to bring forth evidence to rebut that presumption—subverts the 

proper allocation of burdens in removal proceedings. The 

6 This Court has not decided the scope of review that applies to an agency 

finding that DHS met its burden of proving alienage. If, as appears likely, Vera 

Punin’s alienage is a question of fact that is generally reviewable for substantial 

evidence, then pursuant to 8 U.S.C. § 1252(a)(2)(C), we would not have jurisdiction

to review that determination in this case because Vera Punin was ordered 

removed due to his criminal convictions pursuant to 8 U.S.C. § 1182(a)(2). See 8 

U.S.C. § 1252(a)(2)(C). We need not reach this question, however, because we 

understand Vera Punin to argue only that his I-213 was inherently unreliable and 

therefore not permissibly considered, a problem that he somewhat imprecisely

describes as the I-213 being “inadequate as a matter of law.” Petitioner’s Br. at 26. 

We do not read his brief as challenging the ultimate (and likely unreviewable) 

question of whether the agency carried its burden of proof.
34

government again contends that Vera Punin did not exhaust this 

argument before the Board, but here we disagree. Vera Punin argued 

before the Board that the IJ “misappl[ied] the burden of proof and 

production” and that “only once DHS has met its burden of proving 

alienage is there any burden on the Respondent.” CAR 20 n.3. 

Accordingly, Vera Punin raised the issue of the allocation of burdens 

with the requisite “specificity” before the BIA to exhaust the issue. 

Steevenez, 476 F.3d at 117.

On the merits, however, Vera Punin’s argument is 

unpersuasive. He conflates two distinct concepts: the burden of proof 

and the burden of production. The burden of proof refers only to the 

ultimate burden of persuasion. See Dir., Off. of Workers’ Comp. 

Programs v. Greenwich Collieries, 512 U.S. 267, 275–76 (1994). “The

burden of proof is the obligation which rests on one of the parties to 

an action to persuade the trier of the facts . . . of the truth of a 

proposition which he has affirmatively asserted by the pleadings.” Id.
35

at 275 (quoting W. Richardson, Evidence 143 (6th ed. 1944)). In 

contrast, the burden of production is “a party’s obligation to come 

forward with evidence to support its claim.” Id. at 272.

In removal proceedings, the burden of proof is on the 

government to establish that “the facts alleged as grounds for 

deportation,” including alienage, are true by “clear, unequivocal, and 

convincing evidence.” Woodby, 385 U.S. at 286. “The burden of proof

in a litigation, wherever the law has placed it, does not shift with the

evidence . . . .” Com. Molasses Corp. v. N.Y. Tank Barge Corp., 314 U.S. 

104, 110 (1941); see also Pereida v. Wilkinson, 592 U.S. 224, 240 (2021) 

(explaining that when the burden of proof is on the government, 

“evidentiary gaps work against the government”). It is possible, 

however, for the burden of production to shift, particularly where it has 

been established that the factfinder may draw a “permissible 

inference”—sometimes labeled with the more “equivocal term 
36

‘presumption’”—from certain evidence. Com. Molasses, 314 U.S. at 

111.

In removal proceedings, it is permissible for the agency to infer 

that the contents of an I-213 are reliable and therefore support a 

finding of fact by clear and convincing evidence. See Felzcerek, 75 F.3d 

at 116. Such an inference “does no more than require” the alleged 

alien, “if he would avoid the inference, to go forward with evidence”

of “the non-existence of the fact, which would otherwise be inferred,”

Com. Molasses, 314 U.S. at 111—namely, his alienage—sufficient to 

undermine a finding by clear and convincing evidence. This shift in 

the burden of production “does not cause the burden of proof to 

shift.” Id. Indeed, if the alleged alien “does go forward with evidence

enough to raise doubts as to the validity of the inference, which the 

trier of fact is unable to resolve, the [government] does not sustain the 

burden of persuasion, . . . where it rested at the start.” Id. 

Accordingly, the presumption of reliability afforded to I-213s, and the 
37

corresponding shift in the burden of production it imposes, does not 

impermissibly shift the burden of proof away from the government, 

where it always remains.

B. Temporary Board Member

Lastly, Vera Punin argues that the temporary Board member 

who decided his appeal, Elise Manuel, did not have authority to do 

so because she was appointed in violation of the BIA’s regulations. 

More specifically, Vera Punin contends that Manuel was appointed 

pursuant to 8 C.F.R. § 1003.1(a)(4), which, at the time she was 

appointed, provided that the Director of the Executive Office for 

Immigration Review (“EOIR”) could “designate” certain people

(including IJs, and retired IJs and BIA members, among others) “to act 

as temporary Board members for terms not to exceed six months.” 

8 C.F.R. § 1003.1(a)(4) (2021).7 According to Vera Punin, based on the 

7 On April 2, 2024, § 1003.1(a)(4) was revised to say that “[u]pon the 

recommendation of the [EOIR] Director, the Attorney General may in his 

discretion appoint” certain people “to serve as temporary Board members for 

renewable terms not to exceed six months.” 8 C.F.R. § 1003.1(a)(4) (Apr. 2, 2024).
38

regulation’s text, structure, history, and purpose, it limited a 

temporary Board member to serving only one six-month term, but 

when Manuel decided his appeal, she had been serving for over three 

years as a temporary Board member.

Whether Manuel was properly appointed is a question of law

that we have jurisdiction to review. See generally Xiao Ji Chen v. U.S. 

Dep’t of Just., 471 F.3d 315, 326 (2d Cir. 2006) (discussing “questions of 

law” under § 1252(a)(2)(D)). Further, Vera Punin was not required to 

file a motion for reconsideration to exhaust this issue, which arose in 

the first instance out of the Board’s decision. See Santos-Zacaria v. 

Garland, 598 U.S. 411, 424–25 (2023).

Vera Punin’s argument misses the mark because Manuel was 

not appointed by the EOIR Director pursuant to 8 C.F.R. 

§ 1003.1(a)(4). Rather, she was appointed by the Attorney General 

“[b]y the authority vested in [him] . . . under 8 U.S.C. § 1103(g)(1).”

Government’s Br. add. (Off. of the Att’y Gen., Order No. 5235-2021, 
39

Appointing Elise M. Manuel as a Temporary Appellate Immigration 

Judge for a Six-Month Term (Nov. 20, 2021)).8

The INA provides that the Attorney General has the 

“authorities and functions” that were exercised by EOIR or by the 

Attorney General with respect to EOIR prior to the transfer of the 

Immigration and Naturalization Service’s functions to other agencies 

under the Immigration Reform, Accountability and Security 

Enhancement Act of 2002. 8 U.S.C. § 1103(g)(1). The Attorney 

General’s powers include appointing appellate immigration judges to 

serve as members of the BIA. See id. § 1103(g)(2) (providing that the 

Attorney General “shall . . . delegate such authority . . . as the 

Attorney General determines to be necessary for carrying out this 

section”); id. § 1101(b)(4) (assigning the Attorney General authority to 

appoint administrative judges within the Executive Office for 

8 We may take judicial notice of Manuel’s appointment paperwork that the 

government provided in an addendum to its brief. See Louis Vuitton, 676 F.3d at

88 n.2.
40

Immigration Review); 8 C.F.R. § 1003.0(a) (“EOIR shall include the 

Board of Immigration Appeals . . . .”). Thus, in appointing Manuel, 

the Attorney General relied on the broad powers to carry out the 

immigration laws that Congress vested in him under 8 U.S.C. 

§ 1103(g)(1); he referenced 8 C.F.R. § 1003.1(a)(4) in the appointment 

order not as a source of his authority to appoint Manuel, but to

describe the role he was appointing Manuel to perform. See

Government’s Br. add. (“I hereby appoint Elise M. Manuel as a 

temporary Appellate immigration Judge of the Board of Immigration

Appeals, as described in 8 C.F.R. § 1003.1(a)(4) . . . .” (emphasis 

added)); accord Medina Carreon v. Garland, 71 F.4th 247, 253–54 (5th 

Cir. 2023) (rejecting a similar challenge to the propriety of two 

temporary Board members’ appointments, noting that the 

appointment paperwork, of which the court took judicial notice, 

“substantiate[d] the Government’s assertion that the temporary BIA 

members were reappointed by the Attorney General” pursuant to his 
41

authority). Accordingly, Manuel was properly appointed to the BIA 

and therefore had authority to decide Vera Punin’s appeal on behalf 

of the BIA.9

Nor was the Attorney General constrained by 

8 C.F.R.§ 1003.1(a)(4) in exercising his statutory authority. Had the 

Attorney General promulgated rules delimiting his own authority, he 

could not later “sidestep” those limitations. United States ex. rel. 

9

In its brief, the government responded to Vera Punin’s argument by 

arguing that the text, structure, history, and purpose of 8 C.F.R. § 1003.1(a)(4) 

allowed a temporary Board member to serve more than one six-month term. Only 

at oral argument did the government raise the argument that Manuel was 

appointed by the Attorney General by the authority generally vested in him under 

8 U.S.C. § 1103(g)(1), and not pursuant to the cited regulation. See Oral Argument 

Audio Recording at 12:15–13:20, Vera Punin v. Garland, No. 22-6275 (2d Cir. Mar. 

4, 2024). Normally, an argument raised for the first time at oral argument is 

deemed forfeited. See, e.g., United States v. Cedeno, 644 F.3d 79, 83 n.3 (2d Cir. 2011). 

However, the government’s brief did point out that the temporary Board member 

involved in the present case was appointed by the Attorney General (a fact that is 

now undisputed) and cited § 1103(g)(1), in response to Vera Punin’s opening brief, 

which was premised on the incorrect assumption that she had been appointed by 

the EOIR Director. We need not decide whether the government forfeited its 

specific argument regarding the Attorney General’s statutory authority, because 

in any event we would exercise our authority to consider it. See Analytical Survs., 

Inc. v. Tonga Partners, L.P., 684 F.3d 36, 53 (2d Cir. 2012) (explaining that “[w]e are 

more likely to exercise our discretion to consider” a forfeited argument “when the 

issue is purely legal and there is no need for additional fact finding” (internal 

quotation marks and citation omitted)).
42

Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954); see Montilla v. I.N.S., 

926 F.2d 162, 166–67 (2d Cir. 1991) (discussing “the Accardi doctrine”). 

But the regulation applied to the EOIR Director, not the Attorney 

General. That provision enabled “[t]he Director . . . in his discretion 

[to] designate” temporary Board members “for terms not to exceed 

six months.” 8 C.F.R.§ 1003.1(a)(4) (2021) (emphasis added). In some 

circumstances, § 1003.1(a)(4) subjected that discretion to “the 

approval of the Deputy Attorney General.” Id. But it nowhere 

cabined the Attorney General’s authority. Thus, the Attorney General 

remained free to delegate his statutory authority to temporary Board 

Members, free from § 1003.1(a)(4)’s strictures. See 8 U.S.C. 

§ 1103(g)(2); 8 C.F.R.§ 1003.1(a)(1) (2021).

III. Conclusion

In sum, we hold as follows:

1. We lack authority to review Vera Punin’s argument that

the IJ failed to adequately explain why the government’s 

proof established his alienage, because he failed to 

administratively exhaust that claim.
43

2. The agency did not violate Vera Punin’s due process 

rights by considering the I-213, because an I-213 is 

presumptively reliable and admissible to prove alienage

by clear and convincing evidence, and Vera Punin did 

not rebut that presumption by providing evidence 

disputing the accuracy of the I-213’s contents or showing 

that the information was obtained by coercion or duress.

3. The presumption of reliability afforded to an I-213 does 

not impermissibly shift the burden of proof away from 

the government.

4. The temporary Board member who decided Vera 

Punin’s administrative appeal was properly appointed 

by the Attorney General based on the broad powers to 

carry out the immigration laws that Congress vested in 

him under 8 U.S.C. § 1103(g)(1).

Accordingly, the petition for review is DENIED IN PART and 

DISMISSED IN PART.