Unpublished Disposition, 927 F.2d 610 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 610 (9th Cir. 1989)

Hector Manuel MORALES-ONTIVEROS, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70468.

United States Court of Appeals, Ninth Circuit.

Submitted March 5, 1991.* Decided March 7, 1991.

Petition to Review a Decision of the Immigration and Naturalization Service.

BIA

PETITION DENIED.

Before PREGERSON, CYNTHIA HOLCOMB HALL and BRUNETTI, Circuit Judges:


MEMORANDUM** 

Petitioner Hector Manuel Morales Ontiveros was charged with being subject to deportation pursuant to Immigration and Naturalization Act ("INA" or "Act") Secs. 241(a) (1), 212(a) (20) and ordered to show cause why he should not be deported. The petitioner conceded deportability and applied for an adjustment of status under INA Sec. 245. An Immigration Judge ("IJ") denied the application and ordered the petitioner deported. The Board of Immigration Appeals ("BIA") dismissed the petitioner's appeal, upholding the order of deportation. Petitioner filed a timely petition for review of the BIA decision on November 13, 1989. We deny the petition.

Petitioner is a citizen and native of Mexico. In 1979 he entered the United States by either showing his border crossing card or by falsely stating he was a United States citizen. In 1980 he was convicted of armed robbery and conspiracy to commit armed robbery pursuant to 18 U.S.C. §§ 371, 2113(a), (d). Immigration Officer Richard Walker ("Walker") interviewed the petitioner in June, 1980, while the petitioner was incarcerated. During the interview the petitioner stated that he last entered the United States in 1979 by claiming to be a United States citizen.

In July, 1980, the Immigration and Naturalization Service ("INS") served him with an order to show cause why he should not be deported. He was charged with being an alien entering the United States not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document under sections 241(a) (1), 212(a) (20) of the Act. The petitioner admitted the allegations and conceded deportability. He applied for an adjustment of status pursuant to INA Sec. 245. He also applied, for purposes of seeking admissibility as a permanent resident as required for adjustment under Section 245, for a discretionary waiver of excludability under INA Sec. 212(h).

At the deportation proceedings, the petitioner testified that when he last entered the United States in 1979 he was "inspected by Customs and Immigration" and showed the border official his border crossing card or "local passport." When asked, "Did you ever enter the United States at any time by claiming to be a United States citizen," the petitioner responded, "No. I never did." On cross examination, he again testified that he did not claim to be a U.S. citizen when he entered the country.

The petitioner also testified that when he was asked by Walker how he entered the United States in 1979, he told the officer that he "came over as a U.S. citizen." During direct examination of Walker, counsel for INS read from the Immigration Officer's report of the interview ("the I-213") which stated: " [The petitioner] claimed that when he last entered the U.S. in 1979 the officer at San Ysidro asked him his citizenship and he told the officer ... United States citizen." (punctuation in original). The petitioner testified that he made the statement to Walker because he did not want to lose his border crossing card.

On the issue of entering the country under a false claim of citizenship, the Immigration Judge found, based in part on an "examin [ation of] the credibility and the demeanor" of the petitioner, that the petitioner entered the United States under a false claim of citizenship and was therefore ineligible for an adjustment of status. The IJ then considered the merits of the application and found that there was insufficient evidence of hardship and rehabilitation to warrant granting the waiver of excludability.

The petitioner appealed the IJ's decision to the BIA. The petitioner argued before the BIA that the IJ erred in finding (1) insufficient evidence of hardship and rehabilitation and (2) that the petitioner entered under a false claim of citizenship. The BIA dismissed the appeal, stating,

the [petitioner] has failed to establish that he was "inspected and admitted or paroled into the United States" when he last entered this country, an eligibility requirement for relief under section 245, and we therefore need not and do not reach the question of discretion.

The petitioner filed a timely petitioner for review of the BIA's decision to this court.

INA section 245 permits the Attorney General, in his discretion, to adjust the status of a nonresident alien to that of an alien lawfully admitted for permanent residence if certain statutory requirements are fulfilled. 8 U.S.C. § 1255.1  A threshold requirement for this discretionary adjustment is a determination that the alien was "inspected and admitted or paroled into the United States." Id. Sec. 1255(a). An alien who enters the country by falsely claiming to be a United States citizen has not been "inspected and admitted." Reid v. Immigration & Naturalization Serv., 420 U.S. 619, 624 (1974); Goon Mee Heung v. Immigration & Naturalization Serv., 380 F.2d 236, 237 (1st Cir.), cert. denied, 389 U.S. 975 (1967); Ben Huie v. Immigration & Naturalization Serv., 349 F.2d 1014, 1017 (9th Cir. 1965); Saadi v. Carr, 26 F.2d 458, 459 (9th Cir.), cert. denied, 278 U.S. 616 (1928).2  Because the IJ's determination of statutory ineligibility in this case was based upon a factual determination, we review the IJ's decision under the substantial evidence standard. Yui Sing Tse v. Immigration & Naturalization Serv., 596 F.2d 831, 834 n. 4 (9th Cir. 1979); Lee v. Immigration & Naturalization Serv., 541 F.2d 1383, 1384 (9th Cir. 1976).3 

The substantial evidence test is essentially a case-by-case analysis requiring review of the whole record. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The reviewing court must consider evidence contravening the agency's determination.

Turcios v. Immigration & Naturalization Serv., 821 F.2d 1396, 1398 (9th Cir. 1987) (citations omitted).

The pertinent aspects of the record are easily summarized. In 1980 the petitioner told Walker that when he entered the United States a year earlier he entered by falsely claiming to be a United States citizen. This is supported by the petitioner's testimony, the testimony of Immigration Officer Walker, and the I-213 report. During the deportation proceedings, however, the petitioner testified that he entered the United States by showing his border crossing card and explained the 1980 statement by saying he lied so that the officer would not take his border crossing card.

Presented with this conflicting evidence, the IJ found that the petitioner entered this country by making a false claim of citizenship and was therefore ineligible for an adjustment of status. The IJ found the petitioner's explanation "implausible and strained and inconsistent with the rest of the evidence" and after "examin [ing] the credibility and the demeanor" of the petitioner believed the petitioner lacked "trustworthiness." We give the IJ's credibility findings substantial deference. Turcios, 821 F.2d at 1399. The IJ's finding of a lack of credibility, however, must be supported by a specific and cogent reason for his disbelief. Id. The IJ provided such a reason when he stated that the petitioner

at the time of making the statement in June of 1980, was facing a ten-year sentence for robbery and conspiracy to commit robbery. So, consequently, it seems improbable and highly unlikely that the respondent at such time would contrive a falsehood so as to save a Border Crossing Card when in fact he would not be able to use it for possib [ly] ten years thereafter or for at least some considerable period thereafter.

The IJ also stated that he believed, after observing the petitioner that "his testimony is geared to obtain immigrtion [sic] benefits and that he is doing so through the falsehood that he entered this country with inspection contrary to his earlier assertions." The IJ's credibility findings are thus supported with specific and cogent reasoning. In addition, the IJ's decision is clearly supported by substantial evidence in light of the petitioner's 1980 admission to an Immigration Officer that he entered the United States by claiming to be a United States citizen.

Because the BIA found that the petitioner failed to satisfy a prerequisite to an adjustment of status under Section 245 of the Act, consideration of hardship and rehabilitation was unnecessary. The BIA therefore did not err in failing to address these issues. See Immigration & Naturalization Serv. v. Bagamasbad, 429 U.S. 24, 25-26 (1976).

After counsel for the INS completed its direct examination of Walker, the IJ asked counsel, " [i]s there a motion to introduce the I-213 into evidence?" Counsel then moved to introduce the I-213. Petitioner's counsel failed to object to either the IJ's question or the admission of the I-213. Petitioner argues that the IJ's question constitutes bias and deprived him of due process and a fair trial. The petitioner also claims that the IJ improperly referred to Section 241(a) (14) of the Act during the trial. The petitioner did not raise these arguments before the BIA. He has therefore failed to exhaust his administrative remedies on these issues and we are precluded from considering them at this stage of the proceedings. Florez-DeSolis v. Immigration & Naturalization Serv., 796 F.2d 330, 335 (9th Cir. 1986), Tejeda-Mata v. Immigration & Naturalization Serv., 626 F.2d 721, 726 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982).

The petition is DENIED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

 1

INA Sec. 245 provides in pertinent part:

The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a).

 2

Cf. Matter of Arequillin, 17 I & N Dec. 308 (BIA 1980) ("an alien who physically presents himself for questioning is 'inspected' even though he volunteers no information and is asked no questions by the immigration authorities")

 3

Cf. Salehpour v. INS, 761 F.2d 1442, 1445 (9th Cir. 1985) (where there is no factual dispute and INS was granted judgment as a matter of law this court applies de novo standard)