Verduzco-Contreras v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-60936
Summary Calendar
URIE ALEJANDRO VERDUZCO-CONTRERAS,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review from the
Board of Immigration Appeals
(A75-892-375)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Urie Alejandro Verduzco-Contreras petitions for review of a
Board of Immigration Appeals’ (BIA) affirmance, without opinion, of
an Immigration Judge’s (IJ): order of removal; denial of adjustment
of status; and denial of voluntary departure. Verduzco-Contreras
contends the IJ: improperly admitted in evidence a Form I-9 seized
in an illegal search; committed legal error in finding petitioner’s
false claim to being a United States national was equivalent to a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
false claim of United States citizenship, rendering him ineligible
for adjustment status or voluntary departure; erred in finding
petitioner lacked good moral character; and erred in denying a
continuance for adjudication of Petitioner’s I-130 Petition for
Alien Relative. Verduzco-Contreras also claims the BIA erred in
affirming the IJ’s order without opinion.
Verduzco-Contreras entered the United States without
inspection in 1989. The former Immigration and Naturalization
Service brought removal proceedings against Verduzco-Contreras
beginning in 2001. On 27 March 2001, at his first appearance before
the IJ, Verduzco-Contreras admitted he: (1) is a native of Mexico;
(2) is not a citizen or national of the United States; (3) entered
the United States on or about 1989; and (4) was not then admitted
or paroled after inspection by an Immigration officer. Pursuant to
these admissions, Verduzco-Contreras conceded removability. He
subsequently applied for adjustment of status.
On 24 February 2003, the INS entered an additional charge
against Verduzco-Contreras: that he falsely “represented [himself]
to be a citizen of the United States on a Form I-9 for the purpose
of obtaining employment in the United States”, in violation of §
212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA); and
that, to support his false claim of citizenship, he submitted a
driver’s license issued by the State of Texas and a Social Security
2
card. At a hearing before the IJ on 18 July 2003, Verduzco-
Contreras admitted these allegations.
Pursuant to this admission, the IJ entered an order of removal
and denied petitioner’s request for voluntary departure.
Additionally, the IJ denied Verduzco-Contreras’ request for
adjustment of status because his application was incomplete.
Verduzco-Contreras appealed to the BIA, which affirmed without
opinion.
Although this court generally reviews BIA, not IJ, decisions,
we may review an IJ’s decision when, as here, the BIA affirms
without opinion. Thuri v. Ashcroft, 380 F.3d 788, 791 (5th Cir.
2004). We have exclusive jurisdiction to review a final order of
removal, 8 U.S.C. § 1252(a)(1), with review being limited to the
administrative record, id. § 1252(b)(4)(A). “[A]dministrative
findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary”. Id. §
1252(b)(4)(B). And, “a decision that an alien is not eligible for
admission to the United States is conclusive unless manifestly
contrary to law”. Id. § 1252(b)(4)(C).
Verduzco-Contreras claims the IJ erred in ordering his removal
based on an improperly admitted Form I-9. He does not contest,
however, he conceded: at the March 2001 hearing, that he is subject
to removal because he entered the United States without inspection;
and, at the July 2003 hearing, that he falsely claimed to be a
3
United States citizen to gain employment. These concessions are
judicial admissions upon which the IJ was entitled to rely.
Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir.
2001)(holding “[a] judicial admission is a formal concession in the
pleadings or stipulations by a party or counsel that is binding on
the party making them”). Additionally, Verduzco-Contreras has not
shown he objected at the hearing to the IJ’s decision to admit the
Form I-9. Absent any such objection, the IJ was well within his
discretion to accept the document. See United States v. L.A.
Trucker Truck Lines, Inc, 344 U.S. 33, 37 (1952). Furthermore,
absent Petitioner’s showing “egregious violations of [the] Fourth
Amendment”, we decline to consider his contention the Form I-9 was
admitted as the fruit of an illegal search. Gonzalez-Rivera v.
I.N.S., 22 F.3d 1441, 1448 (9th Cir. 1994) (internal quotation
omitted). “It is well-established that the Fourth Amendment
exclusionary rule is not to be applied in deportation proceedings.”
Mendoza-Solis v. I.N.S., 36 F.3d 12, 14 (5th Cir. 1994)(citing
I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984)). For these
reasons, the IJ’s order of removal was not “manifestly contrary to
law”. § 1252(b)(4)(C).
Next, Verduzco-Contreras claims: at the July 2003 hearing,
the IJ improperly denied a motion for continuance for his
application for status adjustment. Petitioner contends he is
eligible to adjust his status to a lawful permanent resident
4
because he is the spouse of a United States citizen. The
Government, on the other hand, claims Petitioner never made such a
motion. Petitioner does not respond to this point in his reply
brief. Moreover, he does not cite the relevant part of the record.
Concomitantly, based on our review, we do not find the motion.
Therefore, we decline to consider this claim.
Verduzco-Contreras contends the IJ erred in finding Verduzco-
Contreras lacked good moral character. This finding related solely
to the IJ’s denial of Petitioner’s request for voluntary departure,
and not his request for status adjustment. This court does not
have jurisdiction to review a denial for voluntary departure. 8
U.S.C. § 1229c(f).
Lastly, Verduzco-Contreras claims the BIA erred in affirming
the IJ without opinion because the streamlining regulations were
not applicable. Verduzco-Contreras claims erroneously that the
legal issues in dispute are not guided by clear precedent. Judicial
admissions are binding on the party who makes them. Martinez, 244
at 476. This principle is so well settled that a three-Member
review is not warranted. 8 C.F.R. § 1003.1(e)(6)(iii).
DENIED
5