Francisco Alfaro v. Attorney General United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3695
___________
FRANCISCO ALFARO,
Petitioner
v.
ATTORNEY GENERAL UNITED
STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-017-225)
Immigration Judge: Honorable Leo A. Finston
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 1, 2013
Before: AMBRO, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed: May 6, 2013)
___________
OPINION
___________
PER CURIAM
Immigration proceedings were initiated against Francisco Alfaro, a native and
citizen of Costa Rica, after he pled guilty to and was convicted of falsely representing
himself to be a United States citizen for the purpose of obtaining a passport in violation
of 18 U.S.C. § 1542. 1 United States v. Alfaro, Crim. No. 11-0835 (D.N.J. Mar. 14,
2012). Alfaro was thereafter served with a Notice to Appear charging him as
inadmissible on three grounds: (1) pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), as an alien
present in the United States without being admitted or paroled; (2) pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), as an alien who has been convicted of a crime involving moral
turpitude; and (3) pursuant to 8 U.S.C. § 1182(a)(6)(C)(ii), as an alien who falsely
represents himself to be a U.S. citizen for a purpose or benefit under the Immigration and
Nationality Act.
Although Alfaro, proceeding pro se, claims that he was lawfully admitted to the
United States in 1994, the Department of Homeland Security was unable to verify this
claim. The Immigration Judge (IJ) determined that Alfaro did not sufficiently
demonstrate that his admission to the United States was lawful, and therefore found him
to be inadmissible on the first ground of the notice to appear. Alfaro admitted that he had
represented himself to be a citizen of the United States in order to obtain a United States
passport and that he had been convicted of violating 18 U.S.C. § 1542, A.R. 201-202, and
the IJ therefore found him to be inadmissible on the remaining grounds. The IJ also
determined that Alfaro was ineligible for waiver of inadmissibility under 8 U.S.C.
§ 1182(h), and ordered his removal. The Board of Immigration Appeals (BIA) dismissed
his appeal, and he now petitions for review.
1
Alfaro was previously convicted of reckless manslaughter in violation of N.J. Rev. Stat.
§ 2C:11-4B (1).
2
We have jurisdiction under 8 U.S.C. § 1252(a)(1). 2 Abdulai v. Ashcroft, 239 F.3d
542, 547 (3d Cir. 2001). We review factual findings under a substantial evidence
standard and, under that standard, we must uphold the agency’s decision unless the
evidence not only supports a contrary conclusion, but compels it. See Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). We review the BIA’s conclusions of law
de novo. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).
Alfaro argues that he was lawfully admitted to the United States and therefore
should not have been charged as inadmissible. Because he did not contest his alienage,
he bore the burden to demonstrate, “by clear and convincing evidence, that [he was]
lawfully present in the United States pursuant to a prior admission.” 8 U.S.C.
§ 1229a(c)(2)(B). Alfaro has conceded that the evidence he submitted was insufficient to
meet that burden. Petitioner’s Brief at 14. At most, the documents he proffered indicate
that he entered the United States in 1994; they offer no insight as to whether he was
admitted or paroled. 3 Accordingly, we are not compelled to disagree with the BIA’s
2
After the dismissal of his appeal but prior to filing the instant petition for review, Alfaro
filed a motion to reconsider with the BIA. The BIA denied the motion to reconsider on
November 9, 2012, and Alfaro did not petition for review of that denial. Our review of
the present case is therefore limited to the BIA’s September 10, 2012 dismissal of his
appeal. Alfaro was removed to Costa Rica on September 25, 2012, but his removal does
not affect our jurisdiction. See Nken v. Holder, 556 U.S. 418, 435 (2009).
3
Alfaro argues that he was prevented from presenting testimony from his grandmother
regarding the status of his entry to the United States at a May 22, 2012 hearing. That
hearing was continued to allow the government an opportunity to investigate the status of
his entry, which was to be resolved at a subsequent hearing on June 5. However,
although Alfaro notes that his grandmother was also present at that hearing, he offers no
3
conclusions that Alfaro did not carry his burden and that the evidence he submitted on
appeal did not justify reopening proceedings. 8 C.F.R. § 1003.2(c). We agree with the
BIA that Alfaro was ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h).
Although that provision provides that the Attorney General has discretion to waive the
application of certain grounds of inadmissibility, it does not apply to two of the grounds
for which he was found to be inadmissible: as an alien present in the United States
without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i) and as an alien who
falsely represents himself to be a United States citizen under § 1182(a)(6)(C)(ii). We will
therefore deny the petition for review. 4
indication why he did not attempt to present her testimony at that time nor does he claim
that he was prevented from doing so.
4
Alfaro’s argument that 8 U.S.C. § 1182(a)(6)(C)(ii) is a ground for inadmissibility but
not removability is without merit. Because he did not demonstrate that his entry to the
United States was lawful, he was appropriately charged as inadmissible rather than
removable. See In re Rosas-Ramirez, 22 I. & N. Dec. 616, 620–21 (BIA 1999). Aliens
deemed inadmissible under § 1182 are removable. See 8 U.S.C. § 1229a(e)(2) (defining
the term “removable”). We have thoroughly reviewed the record in this case and find
that Alfaro’s claim of bias on the part of the IJ and BIA is also meritless. We need not
address Alfaro’s remaining arguments regarding whether his conviction under 18 U.S.C.
§ 1542 is final for immigration purposes or constitutes a crime involving moral turpitude.
The BIA’s conclusion that Alfaro was inadmissible and removable was correct for the
reasons we have described and did not render Alfaro ineligible for any form of relief that
might otherwise have been available to him. Accordingly, any errors in other aspects of
the BIA’s decision would therefore have been harmless. Li Hua Yuan v. Att’y Gen., 642
F.3d 420, 427 (3d Cir. 2011).
4