Hernandez-Garza v. I.N.S.

12 Citing cases

  1. Hernandez-Guadarrama v. Ashcroft

    394 F.3d 674 (9th Cir. 2005)   Cited 88 times
    Holding that the admission of a hearsay statement violated due process where the government "failed to make any 'reasonable effort' to produce the hearsay declarant"

    In short, "the INS may not use an affidavit from an absent witness `unless the INS first establishes that, despite reasonable efforts, it was unable to secure the presence of the witness at the hearing.'" Ocasio v. Ashcroft, 375 F.3d 105, 107 (1st Cir. 2004) (quoting Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992)); see also Saidane, 129 F.3d at 1065; Hernandez-Garza v. INS, 882 F.2d 945, 948 (5th Cir. 1989); Dallo v. INS, 765 F.2d 581, 586 (6th Cir. 1985). In this case, when Hernandez asked to cross-examine Landa-Samano, the IJ initially agreed that cross-examination was necessary.

  2. Renteria-Gonzalez v. I.N.S.

    322 F.3d 804 (5th Cir. 2003)   Cited 8 times

    8 U.S.C. § 1227(a)(1)(B), (E)(i). Renteria-Gonzalez contends that this failure to produce the aliens is unfair under Hernandez-Garza v. INS, 882 F.2d 945, 948 (5th Cir. 1989), which held that "the use of affidavits from persons who are not available for cross-examination does not satisfy the constitutional test of fundamental fairness unless the INS first establishes that despite reasonable efforts it was unable to secure the presence of the witness at the hearing." In Hernandez-Garza, we held that the INS did not satisfy this standard where an INS attorney merely testified that he had sent letters to the absent aliens but could not produce the copies of the letters.

  3. Renteria-Gonzalez v. I.N.S.

    322 F.3d 804 (5th Cir. 2002)   Cited 52 times
    Holding that all convictions remain valid for immigration purposes

    8 U.S.C. § 1227(a)(1)(B), (E)(i). Renteria-Gonzalez contends that this failure to produce the aliens is unfair under Hernandez-Garza v. INS, 882 F.2d 945, 948 (5th Cir. 1989), which held that "the use of affidavits from persons who are not available for cross-examination does not satisfy the constitutional test of fundamental fairness unless the INS first establishes that despite reasonable efforts it was unable to secure the presence of the witness at the hearing." In Hernandez-Garza, we held that the INS did not satisfy this standard where an INS attorney merely testified that he had sent letters to the absent aliens but could not produce the copies of the letters.

  4. Olabanji v. I.N.S.

    973 F.2d 1232 (5th Cir. 1992)   Cited 29 times
    Finding deportation proceedings to be fundamentally unfair where immigrant was denied the right to cross-examine a witness

    This court squarely holds that "the use of affidavits from persons who are not available for cross-examination does not satisfy the constitutional test of fundamental fairness unless the INS first establishes that despite reasonable efforts it was unable to secure the presence of the witness at the hearing." Hernandez-Garza v. I.N.S., 882 F.2d 945, 948, (5th Cir. 1989) (citations omitted). The Ninth and Seventh circuits both follow this rule, and no court has ever disavowed it.

  5. Pouhova v. Holder

    726 F.3d 1007 (7th Cir. 2013)   Cited 23 times
    Finding statement inadmissible when interview was conducted in English and there was no evidence about the alien's English skills nor an opportunity to cross-examine the interviewing officer about the alien's English abilities

    There was no evidence about Dimova's English language skills, and Pouhova did not have the opportunity to cross-examine either Dimova or the interviewing officer about Dimova's ability to participate in the interview. The Fifth Circuit addressed a similar situation in Hernandez–Garza v. I.N.S., 882 F.2d 945 (5th Cir.1989), when it considered an ex parte affidavit by a witness who could not read or speak English. The immigration judge did not permit the petitioner to question the agents who took the affidavit about their Spanish skills.

  6. Cruz v. Aramark Services, Inc.

    No. 06-50035 Summary Calendar (5th Cir. Mar. 30, 2007)   Cited 43 times
    Holding "unsworn" statements and letters in plaintiff's EEOC file to be hearsay

    United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir. 2000).See Hernandez-Garza v. I.N.S., 882 F.2d 945, 948 (5th Cir. 1989) (per curiam) ("The language skills of the [translator] were critical if the judge was to admit and give credence to the contents of [the] affidavit."). II

  7. Ocasio v. Ashcroft

    375 F.3d 105 (1st Cir. 2004)   Cited 18 times
    Rejecting due process argument as to hearsay affidavit because petitioner did not advance objection before IJ

    One of these outer limits is that the INS may not use an affidavit from an absent witness "unless the INS first establishes that, despite reasonable efforts, it was unable to secure the presence of the witness at the hearing." Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992) (quoting Hernandez-Garcia v. INS, 882 F.2d 945, 948 (5th Cir. 1989); see Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997); Dallo v. INS, 765 F.2d 581, 586 (6th Cir. 1985). The petitioner claims that the INS did not use adequate measures to compel Ocasio's attendance at her hearing. The petitioner's argument suffers from a fatal threshold defect: she failed to make this argument to the IJ or even object to the admission of the affidavit.

  8. U.S. v. Hernandez

    995 F.2d 307 (1st Cir. 1993)   Cited 28 times
    Upholding defendant's § 922(g) conviction because jury could reasonably infer that defendant, as the conspiracy leader, controlled his co-conspirators and their firearms

    Sanchez argues that the interpreter's testimony was the only practicable way to convey to a non-Spanish-speaking jury the untrustworthiness of Agent Roberto's testimony. Even discounting defense counsel's unexplained failure to come forward with either an objection or the "invited" offer of proof, cf. Hernandez-Garza v. INS, 882 F.2d 945, 948 (5th Cir. 1989) (immigration judge erred by refusing to allow party to test INS agent's fluency in Spanish, and by dismissing party's observation "that a qualified interpreter was present"), Sanchez does not explain why it was necessary that the court-appointed interpreter testify, particularly in light of the district court's plainly stated concern that the interpreter might be placed in the position of appearing to vouch for or against a translation previously rendered in his role as court-appointed interpreter. Agent Roberto's proficiency in Spanish could as well have been tested on cross-examination or through an interpreter selected by the defense, as indeed could other possible translations of Sanchez' incriminating remark.

  9. Kiareldeen v. Reno

    Civ. No. 99-3925 (D.N.J. Oct. 29, 1999)

    At the other end, courts have prohibited the use of hearsay evidence when the government makes no showing of efforts to produce its witnesses or when the government's purported attempts are evidently half-hearted. See, e.g., Baliza, 709 F.2d at 1234 (finding "troubling" due process violation when government made no effort to locate witness before deportation hearing, despite government's submission of unsigned note by investigator stating that he could not locate affiant at her last known address);Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (prohibiting reliance on affidavit of Spanish speaker that was taken in English by INS agents, where immigration judge prohibited cross-examination of agents regarding their fluency in Spanish);Saidane, 129 F.3d at 1065-66 (barring use of hearsay affidavit when the INS improperly attempted to shift the burden to produce witness onto alien, and where INS attorney told immigration judge that "I have not seen fit to use [affiant] as a witness because I don't think it is material to the issues now raised in this case.") These cases declare that due process concerns are not satisfied unless the government provides the detainee with an opportunity to cross-examine the affiant, or at the minimum, submits a sworn statement by a witness who can address the reliability of the evidence.

  10. Kiareldeen v. Reno

    71 F. Supp. 2d 402 (D.N.J. 1999)   Cited 7 times
    Holding that the government's use of classified evidence in detention-pending-deportation proceedings violated detainee's due process rights and, inter alia, justified his release

    At the other end, courts have prohibited the use of hearsay evidence when the government makes no showing of efforts to produce its witnesses or when the government's purported attempts are evidently half-hearted. See, e.g., Baliza, 709 F.2d at 1234 (finding "troubling" due process violation when government made no effort to locate witness before deportation hearing, despite government's submission of unsigned note by investigator stating that he could not locate affiant at her last known address); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (prohibiting reliance on affidavit of Spanish speaker that was taken in English by INS agents, where immigration judge prohibited cross-examination of agents regarding their fluency in Spanish); Saidane, 129 F.3d at 1065-66 (barring use of hearsay affidavit when the INS improperly attempted to shift the burden to produce witness onto alien, and where INS attorney told immigration judge that "I have not seen fit to use [affiant] as a witness because I don't think it is material to the issues now raised in this case.") These cases declare that due process concerns are not satisfied unless the government provides the detainee with an opportunity to cross-examine the affiant, or at the minimum, submits a sworn statement by a witness who can address the reliability of the evidence.