15-2167
    Gupta v. Lynch
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A098 235 582

                          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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for the
    Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 22nd day
    of September, two thousand sixteen.

    PRESENT:
              ROBERT A. KATZMANN,
                   Chief Judge,
              ROBERT D. SACK,
              PETER W. HALL,
                   Circuit Judges.
    _____________________________________

    SANDIP GUPTA,

                           Petitioner,

                     v.                                              15-2167


    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,

                   Respondent.
    _____________________________________

    FOR PETITIONER:                      Alexander G. Rojas, Barst Mukamal &
                                         Kleiner LLP, New York, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Holly M.
                                         Smith, Senior Litigation Counsel;
                                         Edward C. Durant, Attorney, Office of
                                      Immigration Litigation, United States
                                      Department of Justice, Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a Board

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

ADJUDGED, AND DECREED that the petition for review is DISMISSED.

     Petitioner Sandip Gupta, an alleged native and citizen of India,

seeks review of a June 18, 2015, decision of the BIA, affirming a

November 1, 2013, decision of an Immigration Judge (“IJ”) ordering

Gupta removed to India.            In re Sandip Gupta, No. A098 235 582 (B.I.A.

June 18, 2015), aff’g No. A098 235 582 (Immig. Ct. N.Y.C. Nov. 1,

2013).   We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

I.   Scope and Standards of Review

     We generally lack jurisdiction to review a final order of

removal against an alien, who is removable by reason of having been

convicted   of     a       crime     involving        moral   turpitude.     8 U.S.C.

§ 1252(a)(2)(C),       (D).          However,      we     retain    jurisdiction    “to

determine whether we have jurisdiction” — in this case, to determine

whether Gupta “is in fact an alien whose petition is unreviewable

under § 1252(a)(2)(C).”            Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir.

2005).      “If    [Gupta]          is   a       United     States    citizen,      then

§ 1252(a)(2)(C) cannot bar his petition.” Id. 	

     Clear and convincing evidence that the petitioner was born

abroad   creates       a    presumption          of     alienage.    See   Matter     of

                                             2
Rodriguez-Tejedor, 23 I. & N. Dec. 153, 164 (B.I.A. 2001); Matter

of Tijerina-Villarreal, 13 I. & N. Dec. 327, 330-31 (B.I.A. 1969).

The petitioner may rebut that presumption only by proving, by “a

preponderance of the credible evidence,” that he is a citizen

notwithstanding his foreign birth. Rodriguez-Tejedor, 23 I. & N. Dec.

at 164; Tijerina-Villarreal, 13 I. & N. Dec. at 330.

     Under the circumstances of this case, we review both the IJ’s

and BIA’s decisions regarding Gupta’s alienage “for the sake of

completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524,

528 (2d Cir. 2006).   We review the IJ’s factual findings under the

substantial evidence standard, treating them as “conclusive unless

any reasonable adjudicator would be compelled to conclude to the

contrary.”   8 U.S.C. § 1252(b)(4)(B).   We have observed, however,

that substantial evidence review becomes “more demanding” in the

removability context in light of the Government’s burden of proof.

Francis v. Gonzales, 442 F.3d 131, 138-39 (2d Cir. 2006).      To set

aside the agency’s determination, “we must find that any rational

trier of fact would be compelled to conclude that the proof did not

rise to the level of clear and convincing evidence.”     Id.

     “The Federal Rules of Evidence do not apply in removal

proceedings; rather, ‘[e]vidence is admissible provided that it does

not violate the alien’s right to due process of law.’”     Zerrei v.

Gonzales, 471 F.3d 342, 346 (2d Cir. 2006) (quoting Zhen Nan Lin v.

U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d Cir. 2006)).        “The
                                  3
standard for due process is satisfied if the evidence ‘is probative

and its use is fundamentally fair,’ fairness in this context being

‘closely related to the reliability and trustworthiness of the

evidence.’”   Id.   (quoting Zhen Nan Lin, 459 F.3d at 268).

II.   Discussion

      Gupta’s claim of citizenship turns on whether or not he was born

in the United States.       We conclude that substantial evidence

supports the agency’s determination that the Government established

“by clear, unequivocal, and convincing evidence” that Gupta was not

born in the United States. Woodby v. INS, 385 U.S. 276, 286 (1966).

The agency reasonably relied on Gupta’s social security card

application, his Form I-213, and Agent Doherty’s testimony in support

of that determination.

      Notwithstanding Gupta’s arguments to the contrary, the agency

did not place excessive weight on Gupta’s social security card

application, which listed his place of birth as Calcutta, India.

Gupta conceded that the signature on the application was his, and

the agency reasonably credited the concession of foreign birth in

the application given that Gupta was eighteen years old and could

read English when he signed it.   See Siewe v. Gonzales, 480 F.3d 160,

168-69 (2d Cir. 2007) (noting that we will not find error where an

inference drawn by the IJ “is tethered to the evidentiary record”).

      The agency also did not err by admitting and crediting Agent

Doherty’s testimony that Gupta had stated that he was born outside
                                  4
the United States during an interview regarding Gupta’s submission

of fraudulent school records in support of his passport renewal

application.     See Zerrei, 471 F.3d at 346.   Gupta’s challenge to

Agent Doherty’s credibility is based primarily on the IJ’s finding

in 2010 that Agent Doherty’s testimony was entitled to little weight

because he had difficulty recalling important details.       The BIA,

however, subsequently remanded proceedings to the IJ for entry of

a new decision.    In a 2013 decision, the IJ clarified that, despite

Agent Doherty’s difficulty remembering details, the agent testified

“unequivocally” that Gupta had admitted that he was not born in the

United States.    Gupta has not presented us with any evidence that

compels a finding that this aspect of Doherty’s testimony is not

credible.

     The agency also did not err by admitting and crediting Gupta’s

Form I-213.    We have held that an I-213 is “presumptively reliable,”

because it “contain[s] guarantees of reliability and trustworthiness

that are substantially equivalent” to those required of business

records admissible under the Federal Rules of Evidence.     Felzcerek

v. INS, 75 F.3d 112, 116-17 (2d Cir. 1996).     Gupta argues that the

I-213 in his case is unreliable evidence of his foreign birth because

it was prepared 18 months after his interview, there were no

contemporaneous interview notes in the record, and Agent Doherty did

not prepare the I-213 himself.    In support of this position, Gupta

relies largely on Murphy v. INS, 54 F.3d 605 (9th Cir. 1995).      We
                                   5
find that this reliance is misplaced.           In contrast to Murphy, Agent

Doherty testified and was cross-examined regarding the information

in the I-213 and the circumstances surrounding its development.         Cf.

Murphy, 54 F.3d at 610-11.      In light of his testimony, the agency

reasonably concluded that the I-213 was admissible and entitled to

weight.     See Felzcerek, 75 F.3d at 116-17; Zerrei, 471 F.3d at 346;

cf. Tejeda-Mata v. INS, 626 F.2d 721, 724 (9th Cir. 1980).

     Gupta’s proffer consisted of one piece of documentary evidence:

his mother’s 1995 application for adjustment of status which listed

Gupta’s place of birth as California.            The agency gave diminished

weight to that evidence based on his mother’s strong incentive to

conform     the   information    on       her    application   to   Gupta’s

then-recently-obtained Delayed Registration of Birth (procured

through the submission of Gupta’s fraudulent school records).          That

determination was reasonable.

     Gupta also faults the agency for discounting his and his

parents’ testimony.     The agency, however, did not err in declining

to credit their testimony because of the absence of any corroborating

evidence.     Cf. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

(recognizing that “[a]n applicant’s failure to corroborate his . .

. testimony may bear on credibility, because the absence of

corroboration in general makes an applicant unable to rehabilitate

testimony that has already been called into question”).             Gupta’s

father testified that the hospital in California had given him a
                                      6
document stating that his son was born there, but that he gave the

document to the Indian government in 1969 to register his son as an

Indian citizen.    Gupta did not provide evidence that he or his family

attempted to recover that hospital record, despite having ample time

to do so.    Nor did Gupta’s parents submit passports or any other

evidence that they were in the United States in 1969 or that Gupta

was endorsed on either of their passports upon leaving the United

States as they claimed.   Nor did they offer any evidence from doctors

regarding the post-natal medical care they purportedly received in

the United States, England, and India. Under these circumstances,

the agency did not err in declining to credit their testimony.        See

Siewe, 480 F.3d at 168-69.

     Given the agency’s reasonable consideration of Gupta’s social

security    card   application,   Form   I-213,   and   Agent   Doherty’s

testimony, as well as its proper bases for discounting the testimony

of Gupta and his parents, it cannot be said that “any rational trier

of fact would be compelled to conclude that the proof [of Gupta’s

foreign birth] did not rise to the level of clear and convincing

evidence.”    Francis, 442 F.3d at 138-39.

     The government’s proof of Gupta’s foreign birth created a

rebuttable presumption of alienage.       See Rodriguez-Tejedor, 23 I.

& N. Dec. at 164; Tijerina-Villarreal, 13 I. & N. Dec. at 330.      Gupta

failed to rebut that presumption because he offered no basis for

citizenship other than the location of his birth.           See id.    We
                                    7
therefore conclude that we lack jurisdiction to review his petition.

Ashton, 431 F.3d at 99.   The petition for review is DISMISSED.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




                                 8