Jaspal Uppal v. Jefferson Sessions ( 2018 )

FILED
NOT FOR PUBLICATION
MAY 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASPAL SINGH UPPAL, Nos. 14-73970
15-71077
Petitioner,
Agency No. A076-841-745
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 8, 2018
Seattle, Washington
Before: GOULD and IKUTA, Circuit Judges, and FREUDENTHAL,** Chief
District Judge.
Jaspal Singh Uppal petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
denying Uppal’s motion to amend his pleadings. We have jurisdiction under
8 U.S.C. § 1252.
Uppal has not shown the existence of any of the three circumstances in
which an alien must be relieved of counsel’s admission that Uppal was admitted to
the United States without inspection. See Santiago-Rodriguez v. Holder, 657 F.3d
820, 830 (9th Cir. 2011). First, binding Uppal to that admission would not
“produce[ ] an unjust result” due to an intervening change in law. Id. at 831
(alteration in original) (quoting Matter of Velasquez, 19 I. & N. Dec. 377, 383
(1986)). Rather, the BIA’s decision in Matter of Quilantan held that Matter of
Areguillin, 17 I. & N. Dec. 308 (1980), continued to be controlling law and
therefore “the Board’s long-standing interpretation of [admission],” as requiring
only procedural regularity remained in force. Matter of Quilantan, 25 I. & N. Dec.
285, 287 (2010); see also Hing Sum v. Holder, 602 F.3d 1092, 1100 n.7 (9th Cir.
2010) (“The BIA has continued to apply Areguillin in unpublished decisions
following the 1996 reform.”).
Second, Uppal has not offered evidence proving that counsel’s “factual
admissions and concession of [removability] were untrue or incorrect.” Santiago-
Rodriguez, 657 F.3d at 832 (alteration in original) (quoting Matter of Velasquez,
19 I. & N. Dec. at 383). Uppal’s polygraph results and sworn declaration that
2
Uppal entered the country via a wave through inspection, are directly contradicted
by other evidence in the record, including Uppal’s sworn statement that he entered
“through a farm field near Blaine, Washington.” Substantial evidence supports the
BIA’s decision that the proffered polygraph results were insufficient to overcome
contradictory evidence in the record. See Goel v. Gonzales, 490 F.3d 735, 739 (9th
Cir. 2007) (“[T]here is simply no consensus that polygraph evidence is reliable.”
(quoting United States v. Scheffer, 523 U.S. 303, 309 (1998)).1 Uppal does not
argue that counsel’s admissions “were the result of unreasonable professional
judgment.” Santiago-Rodriguez, 657 F.3d at 832 (quoting Matter of Velasquez, 19
I. & N. Dec. at 383).
Therefore, the admission at the pleading stage that Uppal entered the United
States without inspection is binding on Uppal, see Perez-Mejia v. Holder, 663 F.3d
403, 410 (9th Cir. 2011), and he is therefore not eligible for adjustment of status
under 8 U.S.C. § 1255.2
1
We reject Uppal’s argument that the BIA was the first body to consider the
polygraph evidence and therefore engaged in improper factfinding on appeal. The
IJ considered the polygraph evidence, afforded it “little weight,” and then
concluded that “[a] report from a polygraph exam is not sufficient to convince the
Court that the original admission was untrue or incorrect.”
2
We reject Uppal’s argument that Perez-Mejia is limited to admissions of
criminal conduct. See Matter of Velasquez, 19 I. & N. Dec. at 382 (holding that
aliens are bound by “admissions of fact and concession[s] of deportability”).
3
PETITION DENIED.
4