Vivian Hernandez-Caballero v. U.S. Atty. General , 250 F. App'x 275 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 5, 2007
No. 07-10982 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A76-533-925
VIVIAN HERNANDEZ-CABALLERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 5, 2007)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Vivian Hernandez-Caballero, a native and citizen of Cuba, petitions for
review of an order by the Board of Immigration Appeals (“BIA”) dismissing her
appeal of the immigration judge’s (“IJ”) order denying her an adjustment of status.
After review, we deny the petition.
I. BACKGROUND
In August 1997, the Immigration and Naturalization Service served
Hernandez-Caballero with a Notice to Appear (“NTA”), alleging that she was an
arriving alien who did not possess or present a valid entry document, in violation
of 8 U.S.C. § 1227(a)(1)(A). In an interview with an immigration official,
Hernandez-Caballero stated that she was an active member of the Youth
Communist Party in Cuba and had been selected to join the organization while
serving in the Cuban military in Angola.
In February 1998, after several continuances for her to hire an attorney,
Hernandez-Caballero appeared pro se before an IJ, conceded removability, and was
ordered removed.
In November 1998, Hernandez-Caballero filed an I-485 application to adjust
status under the Cuban Refugee Adjustment Act (“CRAA”), Pub. L. No. 89-732,
80 Stat. 1161 (1966), stating she was a citizen of Cuba who had been physically
present in the United States for at least one year. In November 2003, Hernandez-
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Caballero filed an application to adjust status under the CRAA, which the IJ found
was a continuation of her 1998 application.
In her 2003 adjustment application, Hernandez-Caballero responded
affirmatively to a question asking if she had “ever been a member of, or in any way
affiliated with, the Communist Party . . . .” In an addendum to the 2003
application, Hernandez-Caballero explained that in Cuba she enrolled as a member
of the Communist Youth Union (“UJC”) and was an active member from 1985 to
1991 in order to “keep [her] aspirations alive” and to “attend the University of
Havana.” Hernandez-Caballero clarified that every member of the Communist
Party was selected or recommended from the UJC. However, she was never
recommended and thus never became a member of the Communist Party. In 1991,
she got married, moved from Cuba to Chile, and abandoned the UJC.
In July 2004, Hernandez-Caballero, through counsel, filed a motion with the
Department of Homeland Security to reopen her removal proceedings to request
relief from removal and to adjust her status to a permanent resident. An IJ granted
the motion to reopen, which effectively allowed her request for adjustment of
status to be considered.
In February 2005, Hernandez-Caballero appeared before an IJ with counsel,
admitted the factual allegations contained in the NTA, and stated that she was
seeking an adjustment of status.
3
In June 2005, Hernandez-Caballero appeared again before an IJ for an
adjustment hearing. Hernandez-Caballero admitted that she served as a Sergeant in
the Cuban military from 1985 to 1991 and was stationed in Angola for ten months
in 1989 and 1990. She also admitted that military service for women in Cuba was
voluntary. Hernandez-Caballero stated that she joined the Cuban military because
she “didn’t want to continue to live in the house with [her] mother and [her]
stepfather. . . .”
Hernandez-Caballero testified that she was a member of the UJC from 1987
to 1991, but admitted that she told an immigration official during an interview in
August 1997 that she had been selected as a member of the UJC while serving with
the Cuban military in Angola. She professed, however, that the UJC was not the
same as the Communist Party.
Hernandez-Caballero further testified that she married a Cuban man, then
moved from Cuba to Chile and lived in Chile from 1992 to 1997. She admitted
that her Cuban husband was a member of the Cuban Communist Party and worked
as a Vice Consul for the Cuban Consulate in Chile. While living in Chile, she
carried a diplomatic passport and worked at the Cuban Consulate as a receptionist.
Although she admitted that she had worked for the Cuban Consulate and that her
husband was a member of the Communist Party, she maintained that she was never
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a member of the Communist Party. Hernandez-Caballero, however, did not
dispute that the Cuban Communist Party controls the government of Cuba.
When questioned regarding when her membership in the UJC ended,
Hernandez-Caballero first testified that she left the UJC in 1991 when she moved
to Chile. She acknowledged, however, that she never signed a paper or otherwise
officially left the organization. She later testified that her membership in the UJC
continued until 1993 when she left her job with the Cuban Consulate in Chile.
She maintained that she had no ties with the Cuban government after she left the
Cuban Consulate in Chile in 1993.
The IJ denied Hernandez-Caballero’s application for adjustment of status
and ordered her removed to Cuba, or, in the alternative, Chile. In an oral decision,
the IJ found that Hernandez-Caballero’s testimony regarding her period of
membership in the UJC was “vague, internally inconsistent” and “not credible.”
The IJ noted that she first indicated that she became a member of the UJC in 1987,
then later testified that she was invited to join the UJC while she was serving with
the military in Angola, which, under her previous testimony, was in 1989 and
1990. In addition, Hernandez-Caballero first testified that she was a member of the
UJC until 1991, but later admitted that she still was a member of the UJC while
working at the Cuban Consulate in Chile in 1993.
5
Accordingly, the IJ determined that Hernandez-Caballero failed to establish
by credible testimony that her membership, affiliation, or connection to the
Communist Party had ended five years prior to applying for admission into the
United States. The IJ found that Hernandez-Caballero failed to show that she had
left the UJC while in Chile and was no longer collaborating with the Cuban
government. The IJ also summarized that Hernandez-Caballero’s testimony was
“not straightforward, disingenuous, and nonresponsive.”
In addition, the IJ denied Hernandez-Caballero adjustment of status as a
matter of discretion based on her lack of credibility and her voluntary cooperation
with the Cuban government.
Hernandez-Caballero filed a timely appeal with the BIA, which the BIA
dismissed. The BIA held that Hernandez-Caballero was subject to a rebuttable
presumption of inadmissibility under the CRAA based on her membership in the
UJC, which was a branch of the Cuban Communist Party, and her affirmative
answer in her adjustment of status application to the question of whether she ever
was a member of the Communist Party.
The BIA agreed with the IJ’s determination that Hernandez-Caballero had
not rebutted the presumption of inadmissibility. First, the BIA held that
Hernandez-Caballero voluntarily joined the Cuban military, which required
membership in the Communist Party. Second, the BIA held that Hernandez-
6
Caballero did not present any evidence to show that her membership in the
Communist Party was not meaningful and further concluded that her membership
was, in fact, meaningful because it helped her obtain employment in the Cuban
Consulate in Chile. Finally, because of Hernandez-Caballero’s incredible
testimony with regard to the dates of her membership in the UJC, the BIA
concluded that she was unable to establish that her Communist Party membership
had terminated at least five years before the date of her application for adjustment
of status. Because the BIA agreed with the IJ’s decision that Hernandez-Caballero
was inadmissible, it declined to address the IJ’s discretionary denial of adjustment
of status.
Hernandez-Caballero timely petitioned for review.
II. DISCUSSION
On appeal, Hernandez-Caballero argues that the BIA and IJ erred in finding
that (1) the UJC (Communist Youth Union) was equivalent to the Cuban
Communist Party, (2) her enlistment in the Cuban military was voluntary even
though she enlisted to escape her family situation at home, and (3) she continued to
be a member of the Communist Party when she returned to Cuba after her service
with the Cuban military in Angola.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
7
F.3d 1262, 1284 (11th Cir. 2001). We review de novo the legal determinations of
the BIA, id., and review factual findings of the BIA under the substantial evidence
test, Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). “Under
this highly deferential standard of review, the [BIA’s] decision can be reversed
only if the evidence ‘compels’ a reasonable fact finder to find otherwise.” Id.
(citations omitted).
We also review credibility determinations under the substantial evidence
test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). The IJ
“must offer specific, cogent reasons for an adverse credibility finding.” Id. at
1287. “Once an adverse credibility finding is made, the burden is on the applicant
alien to show that the IJ's credibility decision was not supported by ‘specific,
cogent reasons’ or was not based on substantial evidence.” Id.
The CRAA provides that:
the status of any alien who is a native or citizen of Cuba and who has
been inspected and admitted or paroled into the United States
subsequent to January 1, 1959 and has been physically present in the
United States for at least one year, may be adjusted by the Attorney
General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent
residence if the alien makes an application for such adjustment, and
the alien is eligible to receive an immigrant visa and is admissible to
the United States for permanent residence. . . .
CRAA, Pub. L. No. 89-732, 80 Stat. 1161, § 1 (as amended, see 8 U.S.C. § 1255,
historical and statutory notes) (quoted in Gonzalez v. McNary, 980 F.2d 1418,
8
1420 n.1 (11th Cir. 1993)). However, any alien “who is or has been a member of
or affiliated with” the Communist Party or any “subdivision or affiliate thereof” is
inadmissible to the United States. 8 U.S.C. § 1182(a)(3)(D)(i). There are specific
exceptions to 8 U.S.C. § 1182(a)(3)(D)(i) for aliens whose membership in the
Communist Party (1) was involuntary, 8 U.S.C. § 1182(a)(3)(D)(ii), or (2)
terminated at least five years1 prior to the date on which she applied for admission
or adjustment of status, 8 U.S.C. § 1182(a)(3)(D)(iii). The BIA has further
established an exception to 8 U.S.C. § 1182(a)(3)(D)(i) where the alien shows that
her membership in the Communist Party was not “meaningful.” See Matter of
Rusin, 20 I&N Dec. 128, 130-32 (BIA 1989).
As an initial matter, Hernandez-Caballero dedicates the vast majority of her
brief to arguing that the IJ erred in its discretionary decision to deny her adjustment
of status. However, the BIA declined to address the IJ’s discretionary decision to
deny Hernandez-Caballero adjustment of status because it agreed with the IJ’s
determination that she was inadmissible under 8 U.S.C. § 1182(a)(3)(D)(i).
1
This exception states that 8 U.S.C. § 1182(a)(3)(D)(i) shall not apply to an alien who
establishes that her membership or affiliation with the Communist Party terminated at least:
(a) 2 years before the date of such application, or
(b) 5 years before the date of such application, in the case of an alien whose
membership or affiliation was with the party controlling the government of a foreign
state that is a totalitarian dictatorship as of such date . . .
8 U.S.C. § 1182(a)(3)(D)(iii)(I)(a), (b). Because Hernandez-Caballero does not dispute that the
Cuban Communist Party controls the government of Cuba, we will apply subsection (b) here.
9
Because we are reviewing only the BIA’s decision here, and the BIA declined to
address the IJ’s discretionary decision, we will not review the discretionary relief
issue.2
With respect to the decision that Hernandez-Caballero was inadmissible
under 8 U.S.C. § 1182(a)(3)(D)(i), we conclude that the BIA’s decision is
supported by substantial evidence. First, we need not address here whether the
UJC (Communist Youth Union) is a branch of the Communist Party because the
record evidence that Hernandez-Caballero was a member of the UJC, enlisted in
the Cuban military and worked at the Cuban Consulate in Chile provides
substantial evidence for the BIA’s finding that Hernandez-Caballero was at least
“affiliated with” the Cuban Communist Party or a “subdivision or affiliate” of the
Cuban Communist Party. Indeed, Hernandez-Caballero admitted that every
member of the Communist Party is recommended or selected from the UJC
(Communist Youth Union), which further demonstrates the affiliation. Thus, the
record does not compel reversal of the BIA’s finding that Hernandez-Caballero
2
To the extent that Hernandez-Caballero argues that the IJ erred in failing to consider the
application of 8 U.S.C. § 1182(a)(3)(D)(iv), which allows the Attorney General to waive the
application of 8 U.S.C. § 1182(a)(3)(D)(i) in the interest of family unity where an alien has a close
family member who is a citizen or permanent resident of the United States, we decline to address
this argument because the IJ’s discretionary decision is not before us on review. In any event, we
would lack jurisdiction to review this discretionary decision. See 8 U.S.C. § 1252(a)(2)(B).
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was inadmissible because she was “a member of or affiliated with” the Cuban
Communist Party under 8 U.S.C. § 1182(a)(3)(D)(i).
Second, as to the BIA’s determination that Hernandez-Caballero’s failed to
show that her relationship with the Cuban Communist Party was “involuntary”
under 8 U.S.C. § 1182(a)(3)(D)(ii), Hernandez-Caballero’s testimony that she
enlisted in the Cuban military because she “didn’t want to continue to live in the
house with [her] mother and [her] stepfather” is wholly insufficient to compel the
conclusion that her enlistment in the military was involuntary. Furthermore, she
does not argue that her other affiliations with the Communist Party – her
membership in the UJC and her employment at the Cuban Consulate in Chile –
were, in any way, involuntary. Thus, the BIA’s conclusion that Hernandez-
Caballero failed to establish under 8 U.S.C. § 1182(a)(3)(D)(ii) that her
membership or affiliation with the Communist Party was involuntary is supported
by substantial evidence.
Finally, with respect to the BIA’s finding that Hernandez-Caballero failed to
show that her membership in or affiliation with the Communist Party ended five
years before she filed her adjustment of status application under 8 U.S.C.
§ 1182(a)(3)(D)(iii), the BIA’s and IJ’s findings that Hernandez-Caballero’s
testimony regarding her membership in the UJC was not credible is supported by
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substantial evidence.3 Hernandez-Caballero provided inconsistent information
regarding when she joined the UJC. She stated in her 2003 adjustment of status
application that she joined the UJC in 1985. She then testified before the IJ that
she joined the UJC in 1987, but later admitted that she told an immigration official
during an interview in 1997 that she had been invited to join the UJC during her
service with the Cuban military in Angola, which she had testified was from 1989
to 1990.
More importantly, Hernandez-Caballero provided inconsistent information
regarding when, if ever, she left the UJC. Hernandez-Caballero initially testified
that she was a member of the UJC until 1991. She later testified that her
membership in the UJC continued until 1993 when she left her job with the Cuban
Consulate. Thus, based on Hernandez-Caballero’s inconsistent testimony
regarding the key issue of the dates of her membership in the UJC, we hold that the
IJ’s adverse credibility finding, which was affirmed by the BIA, is supported by
substantial evidence. Indeed, the IJ stated the court was not convinced that
Hernandez-Caballero had left the UJC organization. Furthermore, the BIA’s
finding that Hernandez-Caballero failed to show under 8 U.S.C.
3
Hernandez-Caballero filed an application for adjustment of status in 1998, and then filed
another application in 2003. The IJ found that the 2003 application was the same continuing
application as the 1998 application. Thus, 1998 was the relevant date for purposes of the five-year
exception in 8 U.S.C. § 1182(a)(3)(D)(iii). Hernandez-Caballero has not challenged this finding in
her present appeal.
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§ 1182(a)(3)(D)(iii) that her membership in or affiliation with the Cuban
Communist Party, or any subdivision or affiliate thereof, ended five years before
the date she filed her adjustment of status application is supported by substantial
evidence.4
PETITION DENIED.
4
Hernandez-Caballero also cites cases from this Court discussing how an alien may show a
due process violation in immigration proceedings. However, she fails to explain how there was a
due process violation in her case. Accordingly, we hold that any due process claim is waived
because Hernandez-Caballero failed to develop it in her brief. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that an issue listed in the statement of
facts but not elaborated upon in the initial or reply briefs was abandoned).
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