Noel Saldana Castillo v. Jefferson Sessions , 693 F. App'x 647 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOEL ARCENIO SALDANA CASTILLO, No. 13-74221
Petitioner, Agency No. A096-695-448
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2017**
Seattle, Washington
Before: TASHIMA and NGUYEN, Circuit Judges, and WALTER,*** District
Judge.
Noel Saldana, a native and citizen of Panama, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald E. Walter, United States District Judge for the
Western District of Louisiana, sitting by designation.
judge’s decision denying his application for cancellation of removal and
adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. Reviewing
legal questions de novo and the agency’s factual findings for substantial evidence,
see Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008), we deny the petition.
1. Saldana contends that he accrued 10 years of continuous physical
presence in the United States prior to service of a notice to appear—and thus is
eligible for cancellation of removal, see 8 U.S.C. § 1229b(b)(1)(A), (d)(1)—
because his notice did not contain the date and time of his hearing and he did not
learn this information until after the 10-year period had passed. Saldana argues
that we are bound by our decision in Garcia-Ramirez v. Gonzales, 423 F.3d 935,
937 n.3 (9th Cir. 2005) (per curiam) (holding that notices to appear lacking hearing
information do not stop petitioner’s accrual of physical presence), rather than the
Board’s later decision in In re Camarillo, 25 I. & N. Dec. 644, 651 (B.I.A. 2011)
(“[S]ervice of a notice to appear triggers the ‘stop-time’ rule, regardless of whether
the date and time of the hearing have been included in the document.”). His
argument is now foreclosed by Moscoso-Castellanos v. Lynch, in which we
deferred to Camarillo’s construction of the statute. 803 F.3d 1079, 1083 (9th Cir.
2015).
2. Saldana contends that the Board erred by finding him ineligible for
adjustment of status on the ground that he “falsely represented[] himself . . . to be a
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citizen of the United States,” 8 U.S.C. § 1182(a)(6)(C)(ii), on an I-9 employment
eligibility verification form for a job with SeaTac Packaging. He argues that the
Board improperly gave more weight to the testimony of Thomas Bolt, SeaTac’s
human resources director, than to his own testimony.
Saldana testified that when he applied for the job at SeaTac, he checked the
box on his I-9 form indicating that he “had . . . authorization to work” (as opposed
to the box stating he was a “citizen of the United States”) and that SeaTac
photocopied his work permit. On the I-9 form, however, only the “citizen” box
was checked in the section signed by Saldana. Bolt had completed and signed
another section indicating that he had verified Saldana’s employment eligibility
with a driver’s license and social security card.
When confronted with these discrepancies, Saldana admitted that he knew at
the time that his work permit had expired and could not remember who checked
the “citizen” box, though he remembered filling out and signing the rest of the
section. Bolt testified that he could not remember filling out Saldana’s form but
would not have filled out the citizenship information because he was signing it
under penalty of perjury and had no way of knowing that information.
While under oath, Saldana never denied checking the “citizen” box, and the
obvious inference is that he did—even fully crediting his inconsistent testimony in
the light most favorable to him. Saldana “was required to clearly show that he was
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not inadmissible, and he did not offset the strong inference that his [employment
application] constituted a claim of United States citizenship.” Valadez-Munoz v.
Holder, 623 F.3d 1304, 1309 (9th Cir. 2010).
PETITION DENIED.
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