Unpublished Disposition, 896 F.2d 555 (9th Cir. 1990)

MEMORANDUM^** 

Noe Rodriguez Lapira petitions for review of the Board of Immigration Appeals' (BIA) dismissal of his appeal from the immigration judge's (IJ) order denying his request for voluntary departure pursuant to Sec. 244 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1254. Lapira contends that the BIA erred in finding him statutorily ineligible for voluntary departure on the grounds that he was not a person of "good moral character." We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We affirm.

This court reviews factual findings by the BIA under the substantial evidence test. See McMullen v. INS, 658 F.2d 1312, 1317 (9th Cir. 1981) (citation omitted). Statutory eligibility for the relief of voluntary departure under INA Sec. 244(e) requires that an applicant demonstrate good moral character for the five years preceding his application for voluntary departure. See 8 U.S.C. § 1254(e). INA Sec. 101(f) (6) bars an individual who has given "false testimony" for the purpose of obtaining benefits under the INA from demonstrating that he is of "good moral character." See 8 U.S.C. § 1101(f) (6). This circuit defines false testimony for purposes of construing INA Sec. 101(f) (6) as statements made under oath to a court or tribunal. See Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 (1984). "Testimony" is limited to oral statements, and applies only to misrepresentations made with the subjective intent to deceive for the purpose of obtaining benefits under the INA. See Kungys v. United States, 485 U.S. 759, 780 (1988).

In 1981, Lapira applied for an immigrant visa as a single relative of a lawful permanent resident. On his visa application form, he marked a box indicating that he was "single (never married)." He was legally separated from his wife at that time. Although there was a box on the visa application for the status of "separated", Lapira did not check this box. When asked about his visa application at the deportation hearing, Lapira explained that he considered himself single because he was legally separated from his wife, and because he had lived apart from her for several years. He testified that he was confused about Philippine law because there is no divorce in the Philippines. The IJ did not find Lapira's testimony to be credible, and determined that Lapira had made "false statements" on his visa application in 1981 and at the deportation hearing.

Because Lapira applied for his visa in 1981, more than five years have elapsed since these events, and any "false statements" made in 1981 cannot form the basis for a statutory bar to relief. Moreover, any misstatements made by Lapira on his immigrant visa form are not false testimony because they were not oral statements made to a court or tribunal. See Phinpathya, 673 F.2d at 1018-19; Kungys, 485 U.S. at 780.

As we read the BIA's decision, it relied substantially on the credibility findings of the IJ. The BIA agreed with the IJ's findings that Lapira's testimony at the deportation hearing that he believed he was single, when he was in fact separated, was not credible. The BIA therefore concluded that Lapira had falsely testified at the deportation hearing, and was thus precluded under INA Sec. 101(f) (6) from establishing a "good moral character." We think there is substantial evidence to support the BIA's decision. See McMullen, 658 F.2d at 1317 (9th Cir. 1981). Hence, the BIA did not err in finding Lapira statutorily ineligible for voluntary departure.

AFFIRMED.