Cooper v. Gonzales , 216 F. App'x 294 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1526
FRANCIS D. COOPER,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A46830567)
Argued: November 28, 2006 Decided: February 7, 2007
Before NIEMEYER and MICHAEL, Circuit Judges, and Joseph R. GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Petition denied by unpublished per curiam opinion.
ARGUED: Randy Olen, Providence, Rhode Island, for Petitioner.
Scott Anton Chutka, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Justice Programs, Washington, D.C, for Respondent. ON BRIEF: Peter
D. Keisler, Assistant Attorney General, Civil Division, Cindy S.
Ferrier, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francis D. Cooper, a Liberian, came to the United States
when he was fourteen years old after being adopted by two U.S.
citizens. Less than a year later, his adoptive parents sent Cooper
back to Liberia, where he remained for two and one-half years.
When Cooper attempted to reenter the United States, he was detained
and charged as an inadmissible alien under 8 U.S.C.
§§ 1182(a)(6)(C), (7)(A) because he lied to immigration officials
and did not have a visa. The charges were sustained by the
immigration judge (IJ) and the Board of Immigration Appeals
(Board), and Cooper petitions for review. We deny the petition,
concluding that Cooper was correctly classified as an alien seeking
admission, see 8 U.S.C. § 1101(a)(13)(C)(ii), and that the evidence
supports both grounds of inadmissibility.
I.
Cooper is a 21-year-old native and citizen of Liberia.
In 1998 Cooper and his sister, Deena, were adopted by Christian and
Cherine Smith, both U.S. citizens. Cooper was admitted to the
United States as a legal permanent resident (LPR) on November 25,
1998. According to Cooper, his and his sister’s relationship with
the Smiths deteriorated shortly after their arrival. Cooper
contends that the Smiths became angry after his sister wrote an
essay at school criticizing the Smiths’ treatment of her and
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Cooper. Certain documents in the administrative record, however,
indicate that the Smiths came to believe rather quickly that the
Cooper children’s biological mother never intended to relinquish
her parental rights. In any event, in June 1999 the Smiths
purchased two airline tickets to Liberia for Cooper and his sister.
Cooper believed that he was going to Liberia for summer vacation
and that he would return to the United States for the start of the
fall semester. Cooper departed without his green card, and the
Smiths told him the card was still in the process of being issued.
The government states that a green card was actually issued to
Cooper while he was in this country. The Smiths apparently
retained possession of the card.
In August 1999 Cooper called the Smiths to arrange his
return trip to the United States. The Smiths said that he could
not return until the (former) INS finished processing his green
card. Cooper called five more times over the next few months.
Each time, the Smiths told him the same story. Finally, in March
2000 the Smiths told Cooper that the U.S. authorities would not
issue a green card. Cooper did not speak with the Smiths again.
Cooper remained in Liberia for another 18 months. He
lived with his maternal aunt and completed his high school
education. In November 2001 Cooper obtained a transportation
letter from the United States Consulate in Liberia. (A
transportation letter functions as a temporary replacement for a
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green card and permits a legal permanent resident who has lost his
card to travel to the United States.) Cooper then purchased a
ticket to the United States.
Cooper arrived in Baltimore, Maryland, on December 19,
2001, where he was detained and questioned by immigration
officials. After being placed under oath, Cooper maintained that
he lost his green card while dancing at a club in Monrovia,
Liberia. He also told the officials that he had last been in the
United States on August 15, 2001. The INS issued Cooper a Notice
to Appear (NTA) and initiated removal proceedings. The NTA alleged
that Cooper was an inadmissible alien on the grounds that he (1)
willfully misrepresented a material fact in order to gain
admission, see 8 U.S.C. § 1182(a)(6)(C)(i), and (2) did not possess
a valid unexpired immigrant visa, see § 1182(a)(7)(A)(i)(I).
After a hearing the IJ sustained both charges in the NTA
and ordered Cooper removed to Liberia. The Board adopted the IJ’s
decision and added limited discussion of its own. We therefore
review both decisions. See Kataria v. INS, 232 F.3d 1107, 1112
(9th Cir. 2000).
II.
We may overturn a final order of removal only if it is
“manifestly contrary to law,” 8 U.S.C. § 1252(b)(4)(C), or is not
supported by substantial evidence, Gandziami-Mickhou v. Gonzales,
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445 F.3d 351, 354 (4th Cir. 2006). With this standard of review in
mind, we consider the agency determinations that (1) Cooper was an
alien seeking admission to the United States, and (2) that he was
inadmissible under both charges in the NTA.
A.
The IJ first determined that Cooper was seeking admission
to the United States when he arrived in Baltimore. As a general
rule, legal permanent residents are presumptively entitled to enter
the United States without “seeking an admission” under 8 U.S.C.
§§ 1181, 1182. See 8 U.S.C. § 1101(a)(13)(C). There are six
exceptions to this rule, however, and a returning LPR must seek
admission if he falls within any one of them. Id.§ 1101(a)(13)(C)(i)-(vi); see also In re Collado-Munoz, 21 I. & N.
Dec. 1061, 1064 (BIA 1998); Tineo v. Ashcroft, 350 F.3d 382, 386
(3d Cir. 2003). One of the exceptions is when the LPR has “been
absent from the United States for a continuous period in excess of
180 days.” Id. § 1101(a)(13)(C)(ii). There is no dispute that
Cooper was absent from this country continuously for more than 180
days because he concedes that he remained in Liberia from June 1999
to December 2001, almost two and a half years. Accordingly, the IJ
did not err in concluding that Cooper was seeking admission to the
United States.
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B.
As an alien seeking admission, Cooper could be excluded
on any of the grounds listed in 8 U.S.C. § 1182 (“Inadmissible
Aliens”). The IJ determined, and the Board agreed, that Cooper was
inadmissible for two reasons: he lacked a valid immigrant visa,
§ 1182(a)(7)(A)(i)(I), and he made material misrepresentations to
the immigration officials, § 1182(a)(6)(C)(i).
1.
An alien is inadmissible if at the time of application
for admission he does not possess “a valid unexpired immigrant
visa, reentry permit, border crossing identification card, or other
document required by this Act.” 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Cooper does not contest the government’s assertion that he arrived
in Baltimore without a visa. Nor does Cooper dispute that his Form
I-551 (green card) expired in June 2001, one year after he left the
United States. See 8 C.F.R. § 211.3 (A Form I-551 “shall be
regarded as unexpired . . . before the first anniversary of the
date on which [the alien] departed from the United States.”).
Cooper did not renew his green card while he was in Liberia, and he
did not acquire any other visa before arriving in the United
States. The undisputed facts thus support the IJ’s (and the
Board’s) conclusion that Cooper is inadmissible under
§ 1182(a)(7)(A)(i)(I).
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2.
The IJ also concluded, and the Board again agreed, that
Cooper was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). This
provision states, “Any alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure . . . a visa,
other documentation, or admission into the United States . . . is
inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). Cooper made at least
two misrepresentations in order to gain admission to the United
States. During his interview with the immigration officials in
Baltimore, Cooper stated (1) that he lost his green card while
dancing at a club in Monrovia, Liberia, and (2) that he was last in
the United States on August 15, 2001. Both statements were
misrepresentations of fact. The only question is whether the
misrepresentations were willful and material.
A misrepresentation is willful if the alien voluntarily
spoke with the knowledge that the statement was false. See Forbes
v. INS, 48 F.3d 439, 442 (9th Cir. 1995). Cooper admits that he
acted on his own volition, knowing that both statements were false.
The falsehoods were also material. The test for materiality is
whether “(1) the alien is [inadmissible] under the true facts, or
(2) the misrepresentation tends to shut off a line of inquiry which
is relevant to the alien’s eligibility.” Matter of Boromand, 17 I.
& N. Dec. 450, 452 (BIA 1980). Cooper argues that the
misrepresentations were not material because he was entitled to
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enter this country as a legal permanent resident. This argument
fails. As we have already determined, Cooper was inadmissible
under “the true facts” because his green card had expired. See 8
U.S.C. § 1182(a)(7)(A)(i)(I). Accordingly, the misrepresentations
were both material and willful, and the IJ’s finding of
inadmissibility under § 1182(a)(6)(C)(i) is supported by
substantial evidence.
III.
In sum, Cooper was an alien seeking admission to the
United States because he was absent from the country for more than
180 days. There is sufficient evidence to support the
determination of the IJ and the Board that Cooper was inadmissible
on two alternative grounds, that he did not possess a valid
immigrant visa and that he made willful and material
misrepresentations in order to obtain admission.*
PETITION DENIED
*
It is not necessary for us to reach Cooper’s argument that
the IJ and the Board erred in determining that he had abandoned his
LPR status. Even if Cooper retained his LPR status, he was still
absent from the country for more than 180 days and therefore
properly classified as an alien seeking admission. Cooper was, of
course, inadmissible for the reasons stated in part II.B, supra.
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