Acosta v. Lynch , 819 F.3d 519 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1810
JHONATAN ACOSTA,
Petitioner,
v.
LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Carlos E. Estrada, on brief for petitioner.
Lindsay M. Murphy, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Keith I. McManus, Senior Litigation Counsel,
on brief for respondent.
April 22, 2016
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta E.
Lynch is substituted for former Attorney General Eric H. Holder,
Jr. as respondent.
TORRUELLA, Circuit Judge. Petitioner Jhonatan Acosta
("Acosta") petitions this court to review a decision of the Board
of Immigration Appeals ("BIA") affirming an Immigration Judge's
("IJ") decision that Acosta is removable as "[a]n alien present in
the United States without being admitted or paroled" under
Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i). He contends that the BIA and IJ erred
in their determinations that his testimony before the IJ was not
credible. In addition, he asserts that the BIA erred by summarily
affirming the IJ's decision to give no weight to his favorable
polygraph test. For the reasons that follow, we deny the petition.
I. Factual and Procedural Background
A native and citizen of Colombia, Acosta is twenty-seven
years old and currently resides in Boston, Massachusetts. He is
married to a United States citizen and is a stepfather to her two
children. In June 2010, Acosta sought to register permanent
residence or adjust status before the United States Citizenship
and Immigration Services ("USCIS"). In support of his application,
he submitted evidence that he was legally admitted to the United
States in Miami, Florida, on August 27, 2001, when he was thirteen
years old. This evidence included his visa and Form I-94.1
1 The Form I-94 is a document that provides the arrival and
departure record of aliens who are admitted to the United States.
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In August 2011, USCIS denied his application on the basis
that his visa and Form I-94 were fraudulent. That same day, Acosta
was placed in removal proceedings upon receiving a Notice to Appear
("NTA") from the Department of Homeland Security ("DHS") as an
alien "present in the United States without being admitted or
paroled." Before the IJ, Acosta argued that he need not show that
his documents are authentic to prove that he was admitted to the
United States. Rather, the BIA has interpreted "admitted" to
include situations where "an alien . . . physically presents
[himself] for questioning and makes no knowing false claim to
citizenship . . . even though [he] volunteers no information and
is asked no questions by the immigration authorities."2 Matter of
Quilantan, 25 I. & N. Dec. 285, 293 (BIA 2010). Emphasizing his
young age at the time of his alleged admission in 2001, Acosta
asserts that he was unaware that his documents were fraudulent.
A. Acosta's Evidence
Acosta appeared twice for hearings before the IJ, in
July and October 2012. To support his argument that he was
admitted to the United States, Acosta submitted affidavits from
himself, his father, and his uncle, and Acosta testified during
the July hearing. At the hearing, he explained that he had entered
2 Neither party disputes this interpretation of "admitted."
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the United States, at the age of thirteen, on August 27, 2001.
According to Acosta's testimony, his uncle and primary caretaker
at the time, Julio César Acosta-Salinas ("Julio César"), had
obtained a visa and passport for him. Julio César later escorted
Acosta to the airport in Medellín, Colombia. There, Julio César
met with a man identified in Julio César's affidavit as the travel
agent responsible for providing Acosta's travel documents.3 Acosta
testified that he then bid farewell to his uncle and met a female
airline attendant who accompanied him onto the plane. During this
process, he at no point had possession of his passport; rather,
the airline attendant was responsible for his travel documents.
Julio César's affidavit largely corroborates this testimony.
Acosta stated that he landed in Miami that afternoon.
Upon arrival, the airline attendant escorted him to an immigration
official and gave the official Acosta's documents for inspection.
Acosta was not questioned by the official, who communicated with
the airline attendant instead. Another airline attendant then
accompanied Acosta on a flight from Miami to Boston,
Massachusetts.4 Acosta stated that, after he landed in Boston,
3 As discussed herein, Acosta did not mention this individual in
his affidavit.
4 Whereas Acosta's testimony from his direct examination seems to
suggest that the same flight attendant accompanied him from
Medellín to Miami and then from Miami to Boston, during his cross-
examination and in his affidavit, Acosta stated that a different
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his father, Omar Alberto Acosta-Salinas ("Acosta, Sr."), who was
residing in Massachusetts at the time, greeted him at the airport.
Acosta testified that the flight attendant held his travel
documents on the second flight and gave these papers to his father
upon their arrival. Acosta, Sr.'s affidavit is consistent with
this testimony.
Acosta avers that he has not left the United States since
his arrival in 2001. Acosta testified that he first learned that
his travel documentation was fraudulent when he met with USCIS to
discuss his application for permanent residence. Following the
hearing before the IJ, Acosta submitted a supplemental memorandum
indicating that he took a favorable polygraph examination that
corroborated his account of being inspected and admitted to the
United States in Miami in August 2001.
B. The Government's Evidence
The Government sought to show that Acosta was not
admitted to the United States in 2001 through the testimony of two
expert witnesses, Robert Murray, an Enforcement Officer with
United States Customs and Border Protection, and Heather Hoover,
a forensic document examiner.
flight attendant escorted him on his second flight. While we note
this discrepancy, it has no bearing on our decision today.
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Murray's Testimony
Murray testified that he searched DHS's systems and
found no record of Acosta's original Form I-94, which "would
suggest that the document was not lawfully issued." He explained
that, typically, after an alien is admitted to the United States,
his Form I-94 is sent to a centralized processing center and
manually entered into the system. He also acknowledged that a
Form I-94 could be lost before being entered into the system.5
Reviewing Acosta's visa, Murray determined that the visa
number was valid but that it was associated with a different
individual who entered the United States in November 2001. When
asked how Acosta's name and biographical information were
transposed onto the visa, Murray reasoned that the visa may have
been "washed," a process by which biographical data is removed
from the visa and new data reprinted. Based on his analysis of
Acosta's visa and his understanding of DHS systems, Murray attested
that he did not believe there is "any plausible way" that Acosta
5 Acosta testified that, at some point during these proceedings,
he applied for a replacement Form I-94. The Form I-94 sent by
immigration authorities indicated that he entered the United
States on August 7, 2000. Acosta could not account for the
discrepancy in entry dates. Murray testified that the Form I-94
was associated with another individual by the name of Jhonatan
Acosta, who is a citizen of Mexico. Murray described this mistake
as "a clerical error."
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could have used this visa to be inspected or admitted to the United
States.
Murray also reviewed a May 2002 visa application for
Acosta created in Bogotá, Colombia, and submitted to the State
Department. The record reveals that the application was refused
on May 29, 2002. On direct examination, Murray stated that, to
the best of his knowledge, Acosta would have needed to be present
in Colombia in 2002 to apply for the visa. On cross-examination,
however, Murray conceded that he did not know whether a thirteen-
to fourteen-year old individual would have been required to appear
in person to apply for a visa in 2002.
Hoover's Testimony
Hoover testified that the admission stamps on Acosta's
Form I-94 and passport were counterfeit based on an analysis of
the ink. She noted that the stamp typically used on Form I-94s
should flash under ultraviolet light and that the stamp on Acosta's
form had no such ultraviolet reaction. Similarly, Hoover explained
that the stamp on Acosta's passport, when viewed under ultraviolet
light, suggested that "the fluorescing feature of this stamp was
simulated by brushing or placing a substance on top of the stamp
impression to give it the appearance of fluorescing."
Hoover also attested that Acosta's visa was a genuine
visa that had been modified. The visa number, which is impressed
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into the paper, was unaltered. The original biographical
information, however, would have been imprinted in black toner ink
which "rests on top of the document" rather than being absorbed
into the paper. Accordingly, visas such as Acosta's are
"susceptible to being washed." Using an infrared light, Hoover
could detect previous entries under Acosta's information. Based
on this analysis, Hoover testified that Acosta's biographical data
had been printed onto the visa after the previous information was
erased.
C. The IJ's and BIA's Decisions
The IJ determined that Acosta had failed to establish
that he is lawfully present in the United States following a prior
admission. 8 U.S.C. § 1229a(c)(2). The IJ acknowledged that
Acosta's testimony was corroborated by the affidavits of Acosta,
Sr. and Julio César. But he declined to give any weight to Acosta's
polygraph examination and noted an "internal discrepancy" between
Acosta's testimony and affidavit: whereas Acosta testified that
Julio César had met a gentleman outside the airport, he made no
mention of this individual in his affidavit.
Ultimately, the IJ was persuaded by the Government's
argument that Acosta was not admitted to the United States. He
credited the Government's evidence that Acosta's visa had been
used to enter the United States in November 2001, which suggests
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that Acosta could not have used this visa to enter the United
States three months earlier, in August 2001. The IJ also
acknowledged a report submitted by Hoover in which she observed
that the "2001" in the United States Consulate Bogotá stamp on
Acosta's passport had been changed from "2002." This evidence
corroborated the Government's argument that Acosta had applied for
a visa in 2002, and not 2001, and that he therefore was in Colombia
in 2002 (although the IJ acknowledged that there was some
uncertainty as to whether an individual of Acosta's age would have
needed to appear in person to apply for a visa). In addition, the
IJ credited the Government's evidence that the admission stamps on
Acosta's Form I-94 and passport were counterfeit and therefore did
not indicate whether Acosta had been inspected and admitted. Based
on this evidence, the IJ determined that Acosta had failed to
demonstrate that he was inspected and admitted to the United States
on August 27, 2001.6
Acosta appealed the IJ's conclusion that he was
removable to the BIA. The BIA affirmed the IJ's decision.
Providing a thorough overview of the Government's evidence, the
BIA concluded that the IJ had not clearly erred in finding Acosta's
6 The IJ also determined that Acosta was statutorily ineligible
for an adjustment of status under INA § 245(a) and failed to meet
his burden of proof in demonstrating that he merits voluntary
departure. Neither of these conclusions are at issue on appeal.
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testimony not credible. Further, the BIA found no error in the
IJ's decision to accord no weight to Acosta's favorable polygraph
test, noting that such a determination was within the IJ's
discretion. Acosta now petitions for judicial review under 8
U.S.C. § 1252(b)(2).
II. Analysis
A. Standard of Review
"[W]e review the agency's factual findings, including
credibility determinations, under the deferential substantial
evidence standard." Jabri v. Holder, 675 F.3d 20, 24 (1st Cir.
2012). Under this standard, we "uphold[] that decision if it is
'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Mihaylov v. Ashcroft, 379
F.3d 15, 17 (1st Cir. 2004) (quoting INS v. Elías-Zacarías, 502
U.S. 478, 481 (1992)). Where "the BIA has written separately while
deferring to and affirming the decision of an IJ, we review both
the BIA's decision and the relevant portions of the IJ's decision."
Kartasheva v. Holder, 582 F.3d 96, 106 (1st Cir. 2009) (quoting
Lutaaya v. Mukasey, 535 F.3d 63, 70 (1st Cir. 2008)).
B. Adverse Credibility Determination
Under INA § 212(a)(6)(A)(i), "[a]n alien present in the
United States without being admitted or paroled . . . is
inadmissible." 8 U.S.C. § 1182(a)(6)(A)(i). Here, Acosta bears
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the burden of establishing, by clear and convincing evidence, that
he is lawfully present in the United States following a prior
admission. Id. § 1229a(c)(2)(B).
Acosta contends that the IJ erred in determining that
Acosta's testimony was not credible and giving inordinate weight
to Murray's and Hoover's expert testimony.7 To be sure, "[a]n
alien's credible testimony, standing alone, may sustain his burden
of proving eligibility for withholding of removal. But evidence
that the factfinder supportably characterizes as incredible may be
either disregarded or discounted." Pan v. González, 489 F.3d 80,
86 (1st Cir. 2007) (citation omitted). Here, the IJ's and BIA's
determinations were based on considerable evidence regarding the
validity of Acosta's travel documents: indeed, "[t]he IJ did not
deal in broad generalizations but relied on a specific and well-
articulated litany of identified inconsistencies in the
petitioner's story." Id. This evidence included substantial
testimony and reports suggesting that Acosta's travel documents
7 As the IJ noted, the REAL ID Act, Pub. L. No. 109-13,
§ 105(d)(2)(4)(C), 119 Stat. 231, 304 (2005), applies here because
Acosta's application was filed after the effective date of the
Act. Kartasheva, 582 F.3d at 104 n.7. "Under the Real ID Act, a
trier of fact may base an adverse credibility determination on any
inconsistency in the record that has a bearing on the petitioner's
veracity, 'without regard to whether the inconsistency goes to the
heart of the applicant's claim.'" Jabri, 675 F.3d at 24
(alterations omitted) (quoting 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1231(b)(3)(C)).
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were falsified, as well as information that directly contradicted
Acosta's claim that he entered the United States in August 2001,
including a 2002 visa application and evidence that another
individual used his visa to enter the United States in November
2001.
Nor has Acosta "provide[d] a meritorious explanation for
the inconsistencies." Conde Cuatzo v. Lynch, 796 F.3d 153, 156
(1st Cir. 2015). The IJ and BIA did not err in disregarding
Acosta's unsubstantiated argument that these many inconsistencies
were due to administrative error. Indeed, the IJ gave Acosta an
additional opportunity to explain the inconsistent documentation.
Following the October hearing, the IJ had the government locate
the immigration official associated with the stamp number on
Acosta's Form I-94 to confirm that the official was not involved
in smuggling or any other wrongdoing. Only after the Government
found this official, who submitted an affidavit averring that he
had not engaged in misconduct and did not recall admitting Acosta
in 2001, did the IJ issue its decision.
Acosta faults the IJ and BIA for considering his
inconsistency in testifying that his uncle met a man from the
travel agency at the airport but omitting this individual from his
affidavit. Standing alone, such an inconsistency likely would be
insufficient to support a finding that Acosta was removable. See
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Jabri, 675 F.3d at 25 (remanding where inconsistencies identified
by the IJ were "not direct inconsistencies"); Kartasheva, 582 F.3d
at 106 (remanding where the petitioner "did not change her story
during the asylum interview but simply omitted small details").
But the IJ did not err in considering an otherwise minor
inconsistency in the broader context of substantial evidence that
Acosta's documentation was fraudulent. See Pan, 489 F.3d at 86
("Some of these inconsistencies, in isolation, may seem like small
potatoes. What counts, however, is that their cumulative effect
is great.").
Acosta also contends that, having entered the United
States at thirteen, he cannot explain how he was admitted using
these documents and asserts that his own testimony, consistent
with his father's and uncle's accounts, should carry the day. This
court is sympathetic to Acosta's argument. The events at issue
took place when Acosta was only thirteen, and his testimony, along
with that of his uncle and father, suggest that he was not
responsible for his travel documentation. But Acosta's age at the
time of entry cannot relieve him of his burden of showing that he
was admitted to the United States, and -- as the IJ and BIA noted
-- his failure to explain the holes in his story is fatal to his
claim.
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C. Favorable Polygraph Examination
Next, Acosta faults the BIA for summarily affirming the
IJ's decision to disregard his favorable polygraph examination.
Acosta's argument is without merit. The BIA provided a reasoned
explanation for its determination that the IJ did not err in
weighing the polygraph evidence, noting that the IJ "was in the
best position to observe the respondent and make determinations
regarding his credibility." The BIA also explained that decisions
as to the weight of the evidence fall well within the IJ's
discretion.
This reasoning is well-supported under our law. As the
BIA noted, the IJ has "broad discretion over the conduct of
immigration court proceedings." Condo Cuatzo, 796 F.3d at 156.
And while a due process violation may arise from an IJ's decision
to exclude evidence, "the trial judge must be accorded some
flexibility in his efforts to ensure that speculation and surmise
do not become proxies for probative evidence." Pulisir v. Mukasey,
524 F.3d 302, 311 (1st Cir. 2008). Polygraph results have long
been considered of dubious value, and the IJ did not err in
declining to give Acosta's polygraph examination any significance
in his weighing of the evidence. Cf. United States v. Rodríguez-
Berríos, 573 F.3d 55, 73 (1st Cir. 2009) ("Polygraph results are
rarely admissible at trial."); deVries v. St. Paul Fire & Marine
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Ins. Co., 716 F.2d 939, 944-45 (1st Cir. 1983) (finding that the
district court did not err in granting motion to exclude evidence
regarding the refusal to take a polygraph as "polygraph evidence
has long been considered of dubious scientific value").
III. Conclusion
Standing alone, Acosta's testimony, corroborated by
affidavits from his father and his uncle, supports his version of
events that he was admitted to the United States in Miami in 2001.
But Acosta has failed to explain the many inconsistencies in his
travel documentation, and neither the IJ nor BIA erred in crediting
the Government's substantial evidence rebutting Acosta's own
account. The petition is denied.8
Denied.
8 We nevertheless believe that this petition presents an instance
where the Government should consider whether to exercise its
prosecutorial discretion to avoid the harsh result that Acosta now
faces. Although the law compels us to deny Acosta's petition, we
note our discomfort with this result. The IJ himself noted that
the Government "seem[ed] to be spending a lot of effort regarding
the entry of a 13-year-old in the United States" and asked why DHS
had devoted so much energy to this case. We too question the
Government's commitment to ensuring that Acosta, who has a clean
record and has formed a family here since his arrival over a decade
ago, can likely never return to his adopted home. While it need
not take our suggestion, we encourage the Government to reconsider
its position in this case.
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