Urizar-Carrascoza v. Holder, Jr. ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1208
ANOLDO URIZAR-CARRASCOZA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
John P. Garan on brief for petitioner.
Sabatino F. Leo, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Principal Acting Assistant Attorney General, Civil
Division, and Ernesto H. Molina, Jr., Assistant Director, on brief
for respondent.
August 12, 2013
LYNCH, Chief Judge. On September 27, 2010, an
immigration judge (IJ) denied Anoldo Urizar-Carrascoza's
applications for a waiver of inadmissibility pursuant to 8 U.S.C.
§ 1182(i); permission to reapply for admission pursuant to 8 U.S.C.
§ 1182(a)(9)(A); and a waiver of his unlawful presence pursuant to
8 U.S.C. § 1182(a)(9)(B)(v). Urizar-Carrascoza had sought this
relief in support of his adjustment of status petition pursuant to
8 U.S.C. § 1255(a).
Urizar-Carrascoza appealed the IJ's decision, and on
January 11, 2013, the Board of Immigration Appeals (BIA) dismissed
his appeal. Urizar-Carrascoza now timely petitions for review of
BIA's decision. We deny the petition.
I.
A. Factual Background and Procedural History
Urizar-Carrascoza is a native and citizen of Guatamela
who first entered the U.S. without inspection in 1995 through
Tucson, Arizona. Urizar-Carrascoza was apprehended by immigration
officials at that time and detained in El Paso, Texas, where he was
held in custody for thirteen days. He then posted a $1,500 bond
and was released from custody; as he was released from custody, he
was personally served with a notice to appear (NTA). However,
Urizar-Carrascoza did not appear at any proceedings related to this
NTA; he alleged that he "never received any notices," though he
gave his address to the authorities upon his release from custody
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and continued living at that address for a year and a half.
Urizar-Carrascoza conceded that he knew there were proceedings
against him to remove him from the U.S., and that he was due back
in court at some point, but he stated that he never contacted the
immigration authorities to find out when his next court date would
be. Urizar-Carrascoza was ordered deported in absentia on July 27,
1995, though he was never actually deported from the U.S. He
claimed that he did not learn he had been ordered removed until he
applied to adjust his status and appeared for an immigration
interview in 2004.
In 1997, Urizar-Carrascoza married a legal permanent
resident in Providence, Rhode Island, and in 1998 his wife gave
birth to their first child, a U.S. citizen, in Providence. Urizar-
Carrascoza returned to Guatemala in 1999. In 2000, he applied in
person at the U.S. embassy in Guatemala for a visa to return to the
U.S. Urizar-Carrascoza testified that he was interviewed by a U.S.
government official, and that he did not tell the official that (1)
he had been detained by U.S. immigration authorities; (2) he had
been ordered removed from the U.S.; or (3) he was married. Urizar-
Carrascoza stated that no official asked him for this information,
and that he was not required to fill out a visa application in
order to apply for a visa. Urizar-Carrascoza was awarded the visa
and used it to travel to the U.S. several times between 2000 and
2002. He stated that in the course of using this visa, he never
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told any U.S. government officials that he had been detained or
ordered deported by U.S. immigration authorities, or that he was
married.
Urizar-Carrascoza most recently entered the U.S. in
August 2002, and has not left the U.S. since that entry. He stated
that he decided to overstay his visa because his wife was due to
give birth to their second child in October 2002, and he did not
want to leave her alone. Urizar-Carrascoza's wife gave birth to a
second child in 2002 and to a third child in 2009, both in
Providence, Rhode Island.
On December 3, 2001, Urizar-Carrascoza's wife became a
U.S. citizen. In May 2003, she filed a petition for alien relative
on Urizar-Carrascoza's behalf (Form I-130), and Urizar-Carrascoza
filed an application to adjust his status (Form I-485). In his
Form I-485, Urizar-Carrascoza disclosed that he had been arrested
in Arizona in 1995 by immigration authorities, but did not disclose
that he had been ordered removed from the United States. Urizar-
Carrascoza had an immigration interview regarding his application
on June 3, 2004, and testified that he learned for the first time
at this interview that he had been ordered deported in absentia in
1995.
That day, the Department of Homeland Security (DHS)
served Urizar-Carrascoza with an NTA charging that he was removable
as an alien who "procured [his] admission, visa, adjustment, or
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other documentation or benefit by fraud or by willfully
misrepresenting a material fact, to wit: Being ordered deported
from the United States on 07/27/1995," pursuant to 8 U.S.C.
§ 1227(a)(1)(A). At removal proceedings on November 17, 2004,
Urizar-Carrascoza, by counsel, admitted these allegations and
conceded the charge of removability. The following exchange
occurred between Urizar-Carrascoza's attorney and the IJ:
Judge: It says here he, he's charged with entry by fraud. Okay.
So you're admitting that he did enter by fraud --
Counsel: Yes, Your Honor.
Judge: -- but you want a waiver.
Counsel: Yes, Your Honor.
Later at the same hearing, the following exchange occurred:
Judge: . . . And you, you didn't know that he'd been previously
ordered deported?
Counsel: No. I could find, I could find no evidence of that and
he was unclear of the circumstances.
At further removal proceedings on February 15, 2006,
Urizar-Carrascoza's attorney stated that "I'm not convinced that
[Urizar-Carrascoza's I-130 application] is going to get approved,
given the history of the case. He attained his nonimmigrant visa
by fraud." At continued removal proceedings on April 8, 2009,
Urizar-Carrascoza's attorney stated that Urizar-Carrascoza was
applying for permission to reapply for admission (Form I-212) and
for a waiver of inadmissibility (Form I-601): "[t]he I-212 covering
the previous deportation and the I-601 for the unlawful presence
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and for any type of . . . . misrepresentation on the B-2 visa." In
April 2009, Urizar-Carrascoza filed these applications.
On October 26, 2009, DHS lodged an additional charge
against Urizar-Carrascoza, alleging that he was removable pursuant
to 8 U.S.C. § 1227(a)(1)(B), because he "remained in the United
States beyond the period of [his] authorized stay." At removal
proceedings held that day, Urizar-Carrascoza by counsel admitted
these allegations and conceded the additional charge of
removability.
A merits hearing was held in Urizar-Carrascoza's removal
proceedings on September 27, 2010, at which Urizar-Carrascoza
testified as described above. He did not, however, withdraw his
concessions that he was removable on the basis of fraud and
unlawful presence. The government, likely in reliance upon Urizar-
Carrascoza's admission of fraud, did not submit into evidence a
copy of Urizar-Carrascoza's 1995 deportation order, nor did it
submit any nonimmigrant visa application filed by Urizar-
Carrascoza.
B. The IJ's Decision and the BIA's Affirmance Thereof
On September 27, 2010, the IJ denied Urizar-Carrascoza's
applications for waivers of inadmissibility relating to fraud and
unlawful presence, and also denied his application for permission
to reapply for admission. The IJ also denied Urizar-Carrascoza's
application to adjust status. The IJ granted voluntary departure
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to Urizar-Carrascoza, but issued an alternate order of removal to
Guatemala in the event Urizar-Carrascoza failed to comply with the
voluntary departure order.
The IJ found that when Urizar-Carrascoza applied for a
U.S. visa in 2000, he did not reveal to the consular officer that
he had a wife and a U.S. citizen child, both of whom were in the
United States. The IJ also found that Urizar-Carrascoza failed to
reveal to U.S. consular officials that he had previously been in
the U.S. for four years, and that he had been ordered removed from
the U.S. The IJ acknowledged that the government had not submitted
any nonimmigrant visa application filed by Urizar-Carrascoza, but
stated that he was "entitled to take judicial notice of the fact
that a nonimmigrant visa application is required of all applicants
who come to the United States with a visitor's visa, except for
those perhaps who come under the Visa Waiver Program." The IJ also
found that "it is likely that the respondent came to the United
States [in 2002] with the intention of remaining in this country
for the purpose of becoming a permanent resident."
The IJ noted "that the respondent has conceded his
fraudulent behavior" and that "[t]he respondent's admission of
fraud is well grounded." The IJ stated that Urizar-Carrascoza's
"efforts to minimize his fraud are particularly disturbing." The
IJ then found:
[I]t is extremely doubtful if any set of circumstances
exist in which the respondent would have been allowed to
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come to the United States as a visitor if he had revealed
that he had been in the United States for four years
illegally, that he was married and that his wife was in
the United States, likely as a permanent resident, and
that he had a United States citizen child.
The IJ stated that if either the fraud waiver or the
unlawful presence waiver were the only waiver Urizar-Carrascoza was
applying for, he might be entitled to have his application granted.
However, the IJ found that "[t]he respondent says that he never
received notice [of his 1995 removal proceedings] and this is
highly unlikely, in that he indicated he lived at that address for
a year and a half and he was ordered to be deported in July of
1995." The IJ thus found "a culmination of factors which reflect
an intention and plan on the part of the respondent to circumvent
the Immigration laws in order to gain permanent residence in this
country," and that Urizar-Carrascoza had "gained all of the
equities which he contends should allow him to be excused from his
fraud by virtue of having engaged in that fraud." Finding that
Urizar-Carrascoza's wife had support systems in the U.S. and was
"young and healthy," and that Urizar-Carrascoza would be able to
"participate in the orderly Immigration process" after removal, the
IJ denied Urizar-Carrascoza's applications for waivers and for
permission to reapply as a matter of discretion, and granted
voluntary departure.
Urizar-Carrascoza appealed the IJ's decision, and on
January 11, 2013, the BIA dismissed his appeal. The BIA rejected
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Urizar-Carrascoza's claim that DHS failed to establish that he was
inadmissible by virtue of fraud and that he therefore did not
require a fraud waiver; it also rejected his contention that the IJ
failed to explain his decision, as a matter of discretion, to deny
Urizar-Carrascoza's applications.
II.
Where the BIA issues its own opinion, we review both that
opinion and any portion of the IJ's opinion that the BIA adopted.
Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004). Where we have
jurisdiction to review the BIA's decisions, we subject its factual
determinations to deferential review under the substantial evidence
standard, id. at 5, meaning that we uphold these determinations
unless "any reasonable adjudicator would be compelled to conclude
to the contrary," 8 U.S.C. § 1252(b)(4)(B).
Urizar-Carrascoza makes two arguments in his petition for
review: (1) the BIA erred in finding that he was removable due to
having gained admission to the U.S. by fraud; and (2) the BIA erred
in concluding that the IJ properly analyzed the facts in denying
his applications for waivers of inadmissibility and permission to
reapply for admission.
A. The Agency's Finding of Removability Due to Fraud
The Immigration and Nationality Act (INA) provides that
"[a]ny alien (including an alien crewman) in and admitted to the
United States shall, upon the order of the Attorney General, be
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removed if the alien is within one or more of the following classes
of deportable aliens," which includes "[a]ny alien who at the time
of entry or adjustment of status was within one or more of the
classes of aliens inadmissible by the law existing at such time is
deportable." 8 U.S.C. § 1227(a)(1)(A). The INA classifies as
inadmissible "[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to
procure or has procured) a visa, other documentation, or admission
into the United States or other benefit provided under this chapter
is inadmissible." 8 U.S.C. § 1182(a)(6)(C)(i).
In removal proceedings, the government has the burden of
"establish[ing] the facts supporting deportability by clear,
unequivocal, and convincing evidence." Woodby v. INS, 385 U.S.
276, 277 (1966). However, "[i]f the respondent admits the factual
allegations and admits his or her removability under the charges
and the immigration judge is satisfied that no issues of law or
fact remain, the immigration judge may determine that removability
as charged has been established by the admissions of the
respondent." 8 C.F.R. § 1240.10(c).
Substantial evidence supported the agency's determination
that Urizar-Carrascoza was removable as an alien who procured a
visa by fraud. Urizar-Carrascoza twice conceded, by counsel, that
he was removable on the basis of fraud. Urizar-Carrascoza argues
that the first concession, at the November 17, 2004 hearing, was
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"de facto withdrawn just moments after it was made," when his
counsel said that Urizar-Carrascoza "was unclear of the
circumstances." However, reading this statement in context makes
clear that his client was unclear about the circumstances of the
order of deportation, and not his concession of fraud in procuring
a visa.
Urizar-Carrascoza does not claim that he ever explicitly
withdrew his concession to the charge of fraud. Notwithstanding
Urizar-Carrascoza's testimony at the September 27, 2010 merits
hearing, the IJ was entitled to "rel[y] upon [his] concession to
the facts alleged in the NTA in determining that he was removable
as charged." Karim v. Mukasey, 269 F. App'x 5, 8 (1st Cir. 2008).
B. The Agency's Denial of Urizar-Carrascoza's Applications
for Waivers and for Permission to Reapply
The INA provides that "[n]o court shall have jurisdiction
to review a decision or action by the Attorney General regarding a
waiver" relating to fraud or unlawful presence. 8 U.S.C.
§ 1182(a)(9)(B)(v), 1182(i)(2). Urizar-Carrascoza concedes that
this court likewise has no jurisdiction over decisions regarding
permission to reapply for readmission to the United States. See
Andrade v. Attorney Gen. of U.S., 312 F. App'x 452, 454 (3d Cir.
2008) (concluding that court lacks jurisdiction over agency's
denial of petitioner's application to reapply for admission).
However, 8 U.S.C. § 1252(a)(2)(D) also provides that:
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Nothing in subparagraph (B) or (C), or in any other
provision of this chapter (other than this section) which
limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or
questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with
this section.
Urizar-Carrascoza identifies no "constitutional claims or questions
of law" implicated by the agency's decisions regarding his
applications for waivers and for permission to reapply for
admission. Instead, he relitigates whether the factors relevant to
this discretionary relief were appropriately weighed by the IJ and
BIA, and whether the agency's factual findings were accurate. We
lack jurisdiction to entertain these arguments.
III.
Urizar-Carrascoza's petition for review is denied.
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