Pablo Cardenas Cardenas v. Attorney General United States ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1177
___________
PABLO FABIAN CARDENAS CARDENAS,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-240-891)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 13, 2014
Before: SMITH, KRAUSE and BARRY, Circuit Judges
(Filed: August 14, 2014)
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OPINION
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PER CURIAM
Petitioner Pablo Fabian Cardenas Cardenas petitions for review of a final order of
removal issued by the Board of Immigration Appeals (BIA). For the reasons detailed below,
we will deny the petition for review.
Cardenas is a citizen of Ecuador. His arrival date in the United States is contested, as
will be detailed below. On July 13, 2009, following a conviction for driving under the
influence of alcohol, the Department of Homeland Security charged him with being removable
as an alien who entered the United States without being admitted or paroled. See 8 U.S.C.
§ 1182(a)(6)(A)(i). Cardenas conceded removability but applied for cancellation of removal
under 8 U.S.C. § 1229b(b)(1).
Before an Immigration Judge (IJ), Cardenas testified in support of his application. He
alleged that he arrived in the United States in December 1998, and that his removal would
result in an “exceptional and extremely unusual hardship” to his six-year-old son, because
Cardenas was the family’s sole breadwinner.
The IJ concluded that Cardenas was removable and not eligible for cancellation of
removal. The IJ explained that to be eligible for cancellation of removal, the alien must show,
among other things, that he “has been physically present in the United States for a continuous
period of not less than 10 years.” § 1229b(b)(1)(A). The IJ concluded that Cardenas had
failed to satisfy this requirement,1 finding that he had not provided credible testimony about his
arrival date or offered any meaningful corroborative evidence.
Cardenas appealed to the BIA, which dismissed the appeal. The BIA agreed that
Cardenas had provided inconsistent and false testimony to the IJ, and that he had failed to
submit adequate documentary or corroborative evidence to otherwise prove his arrival date.
Cardenas then filed a timely petition for review to this Court.
1
The IJ also found that Cardenas failed to satisfy the other cancellation-of-removal
requirements, but since the BIA did not adopt these findings, we will not address them here.
2
We have jurisdiction pursuant to 8 U.S.C. § 1252. Our review is of the BIA’s decision,
although we also review the IJ’s decision to the extent that the BIA adopted or deferred to the
IJ’s analysis. See Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). We must uphold the
agency’s factual findings — including its findings concerning whether Cardenas has
established ten years of continuous presence, see Lopez-Alvarado v. Ashcroft, 381 F.3d 847,
851 (9th Cir. 2004) — if they are “supported by reasonable, substantial and probative evidence
on the record considered as a whole.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).
We will reverse a finding of fact only if “any reasonable adjudicator would be compelled to
conclude to the contrary.” § 1252(b)(4)(B).
We discern no error in the BIA’s decision. As the agency noted, to be eligible for
cancellation of removal, the alien must meet the ten-year continuous-presence requirement,
and under the so-called “stop-time rule,” the count of time toward the ten-year requirement
stops upon service of a notice to appear. See 8 U.S.C. § 1229b(b)(1), (d). It is undisputed that
Cardenas was served with a notice to appear on July 13, 2009. Therefore, to satisfy the
continuous-presence requirement, Cardenas must have arrived in the United States by July 13,
1999.
Cardenas testified at his hearing that he arrived in December 1998, but the agency had
good reasons to disbelieve this claim. Most critically, in a sworn statement that Cardenas had
provided to immigration officials after being charged with removability, he stated that he
arrived in the United States on October 19, 2000. Although Cardenas tried to explain this
discrepancy at the hearing — he said he was “nervous” when making the initial statement —
3
the agency was not required to accept this explanation. See Xie v. Ashcroft, 359 F.3d 239,
245-46 (3d Cir. 2004).
Before this Court, Cardenas argues that the date provided in the earlier statement was
the consequence of his answering questions without an interpreter. However, we agree with
the BIA that this argument is foreclosed by Cardenas’s testimony at the hearing when, rather
than presenting this explanation, he stated, “I don’t remember exactly the date that I came into
this country and for that reason I was — you know I marked down something that seemed to
me you know what it was but I was very nervous.”2
Further, as the BIA noted, Cardenas provided inconsistent accounts of his travel route
from Ecuador to the United States. Moreover, he alternatively reported his age at the time of
entry as 17 and 19; in his application for cancellation of removal, he stated that he was born on
May 26, 1974, which would have made him 24 in December 1998. Additionally, during the
hearing, under cross-examination from the government, Cardenas admitted that he had testified
untruthfully about the date that his girlfriend arrived in the United States. Thus, substantial
evidence supports the agency’s conclusion that Cardenas’s testimony was insufficient to
establish the required continuous presence. See generally Lopez-Alvarado, 381 F.3d at 851-
52.
It was also reasonable for the BIA to discount the other evidence that Cardenas
provided. With a single exception, no document that Cardenas submitted purported to show
that he arrived in the United States on or before July 13, 1998; rather, the documents include
2
We note that the document that Cardenas completed was written in both English and Spanish,
which would also seem to obviate the need for an interpreter.
4
pictures taken in 2001 and statements from individuals who met Cardenas in the early- and
mid-2000s. The one exception is a letter from Cardenas’s brother, a United States citizen,
stating that Cardenas arrived in 1998. However, this letter was unsworn, and Cardenas’s
brother, despite living in Philadelphia, did not attend the hearing and submit to cross
examination. It was thus reasonable for the agency to accord this letter limited weight. See
Chen v. Gonzales, 434 F.3d 212, 218 (3d Cir. 2005). Substantial evidence therefore supports
the BIA’s finding that Cardenas failed to satisfy the continuous-presence requirement and is
not eligible for cancellation of removal. See Acevedo-Aguilar v. Mukasey, 517 F.3d 8, 10-11
(1st Cir. 2008) (so holding in similar circumstances); Garcia-Melendez v. Ashcroft, 351 F.3d
657, 661-62 (5th Cir. 2003) (same).3
Accordingly, we will deny the petition for review.
3
In his brief, Cardenas argues at some length that his documents were properly
“authenticated,” but authentication is not at issue in this case.
5