Jose Amilcar GAITAN-CORTEZ, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 369 F. App'x 305

SUMMARY ORDER Petitioner Jose Amilcar Gaitan-Cortez, a native and citizen of El Salvador, seeks review of the July 24, 2009, order of the BIA affirming the August 4, 2008, decision of Immigration Judge (“I J”) Philip J. Mon-tante, Jr., ordering him removed to El Salvador. In re Jose Amilcar Gaitan Cortez, No. [ A XXX XXX XXX ] (B.I.A. July 24, 2009), aff'g No. [ A XXX XXX XXX ] (Immig. Ct. Buffalo, N.Y. Aug. 4, 2008). We assume the parties’ familiarity with the underlying facts of the case, procedural history, and issues for review on appeal.

Under the circumstances of this case, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d 281, 289 (2d Cir.2007). The Court reviews de novo questions of law and the application of law to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).

Due process in removal proceedings requires “notice” to the alien “of the nature of the charges and a meaningful opportunity to be heard,” Pierre v. Holder, 588 F.3d 767, 776 (2d Cir.2009) (internal quotation mark omitted), and that the proceedings be otherwise fundamentally fair, Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir.2006), vacated on other grounds, 471 F.3d 315 (2d Cir.2006); see also Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007).

Even where an alien shows that due process was denied, he can prevail only if he shows “some cognizable prejudice fairly attributable to the challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.2008) (internal quotation marks omitted). In this case, we conclude that the IJ did not violate Gaitan-Cortez’s due process rights by failing to provide him with an opportunity to cross-examine the Border Patrol agent who prepared his Form 1-213 Record of Deportable/Inadmissible Alien, on which the IJ based his conclusion that Petitioner was removable.

We have held that “a Form 1-218 is presumptively reliable and can be admitted in deportation proceedings without giving the alien the opportunity to cross-examine the document’s author, at least when the alien has put forth no evidence to contradict or impeach the statements in the report.” See Felzcerek v. INS, 75 F.3d 112, 117 (2d Cir.1996). Although Petitioner argues that he was not afforded an opportunity to present such evidence, he was served with the 1-213 form at his first hearing, in September 2007.

At his second hearing, nearly a year later in August 2008, the IJ asked Petitioner’s attorney if he had “any evidence ... to even suggest that the contents of the [Form 1-213] did not relate to [Petitioner] or that the information is erroneous or that it was the result of coercion or duress?” App. 86. Petitioner’s attorney responded that he did not, but explained that he had filed a Freedom of Information Act (“FOIA”) inquiry to discover whether Gaitan-Cortez had previously filed any applications for legal immigration status.

However, when the IJ asked if he had any evidence of the inquiry, his attorney replied that he did not. Therefore, Petitioner’s assertion to this Court that the IJ did not allow him an opportunity to come forward with evidence to rebut the contents of the 1-213 is without merit. The assertion that Petitioner’s attorney challenged the factual accuracy of the 1-213’s contents is similarly unsupported. See, e.g., Kulhawik, v. Holder, 571 F.3d 296, 298 (2d Cir.2009) (unsworn statements of an attorney are not evidence).

Petitioner presented no actual evidence that he had ever filed any application for relief, or that his attorney had filed the FOIA request as he claimed. Accordingly, Gaitan-Cortez’s assertion that the IJ violated his due process rights fails. We have carefully considered Petitioner’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the petition for review is DENIED.