Alfaro-Gonzales v. Mukasey

257 F. App'x 427
Court of Appeals for the Second Circuit·Decided December 14, 2007·No. No. 06-5624-ag·Published

Opinion

SUMMARY ORDER

Petitioner Nelida Leticia Alfaro-Gonzales (“Alfaro”), a native and citizen of Peru who first entered the United States in 1992, petitions for review of the November 13, 2006 decision of the Board of Immigration Appeals (“BIA”) affirming the May 20, 2005 decision of Immigration Judge (“IJ”) Michael W. Straus, which denied her application for adjustment of status under § 245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i), and her application for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b). See In re Nelida Leticia Alfaro-Gonzales, No. A78 222 886 (B.I.A. Nov. 13, 2006), aff'g No. A78-222886 (Immig. Ct. Hartford, Conn., May 20, 2005) (“IJ Decision”). Alfaro contends that the IJ erred in concluding that she had gained admission to the United States in 1992 “by fraud or willfully misrepresenting a material fact,” thus making her “inadmissible” under 8 U.S.C. § 1182(a)(6)(C)(i) and ineligible for adjustment of status. We assume the parties’ familiarity with the underlying facts and procedural history of the case. For the reasons that follow, we grant the petition for review.

“Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision, ... we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Because the BIA in the present matter “adopt[ed] and affirm[ed] the decision of the Immigration Judge” with its own “additions,” we review both the BIA and IJ decisions.

We review the IJ’s factual findings for “substantial evidence.” Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). The IJ’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). A decision that an alien is inadmissible “is conclusive unless manifestly contrary to law.” Id. § 1252(b)(4)(C).

An IJ’s determination that the testimony of an alien is not credible is a factual finding, and thus is reviewed under the substantial evidence standard. See, e.g., Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). The fact that the IJ and the BIA have relied primarily on credibility grounds in ruling against the alien does not insulate their decisions from review. See, e.g., Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An “adverse credibility determination may not be based upon speculation.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005). Such a determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A finding that is “based on flawed reasoning ... will not satisfy the substantial evidence standard.” Id. Nor will we uphold an adverse credibility determination on the basis of a finding that the IJ could have made but did not. “[0]ur review [is] confined to the reasoning of the IJ, and we will not search the record independently for a basis to affirm the BIA.” Id. at 305.

In the present matter, the IJ denied Alfaro’s application for an adjustment of status based on an adverse credibility determination. He concluded that Alfaro was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) on the ground that she entered the United States using a passport and visa that were fraudulent. Alfaro concedes that “[i]f the credibility determina[430]*430tion is supported by substantial evidence, then [Alfaro] cannot overcome the ground of inadmissibility.” (Alfaro brief in support of petition at 5.) The parties agree, however, that if the finding that Alfaro was inadmissible under § 1182(a)(6)(C)(i) was error, we should grant her petition and remand to the BIA for reconsideration of her eligibility for adjustment of status. (See Government brief in opposition to petition at 12 n. 5; Alfaro brief in support of petition at 20.)

An alien is inadmissible under § 1182(a)(6)(C)(i) if, “by fraud or willfully misrepresenting a material fact, [she] seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States.” The focus thus must be on the alien’s knowledge of the fraud or misrepresentation as of the time she “procured” or “sought to procure” such documentation or, at the latest, as of the time she was “admi[tted].” At her hearing before the IJ, Alfaro testified that at no time before she was admitted into the United States did she have any reason to believe that the passport and visa she used were not valid. (See Hearing Transcript, November 5, 2004 (“Tr.”), at 30.)

The IJ declined to credit this or any of Alfaro’s related testimony. The IJ stated that Alfaro “claims that she obtained a passport with her name in it and photograph from an ex-boyfriend who was in the United States and, according to her, knew the process. She states that she gave him her photograph, fingerprints, and some personal information.” (IJ Decision at 2 (emphases added).) The IJ concluded that he “simply [did] not find it credible that she just gets a passport from a friend of hers as well as a United States visa.” (IJ Decision at 8 (emphasis added).) There was no evidence, however, that Alfaro received her passport “from a friend.” The government presented no such evidence, and Alfaro testified that she obtained her passport and visa from an “agency” to which her friend had directed her:

Q.....Can you tell me, how did you get the passport?
A. I went to an agency through a friend who was living here in the United States.

(Tr. 30.) Alfaro testified that she was living in Lima, Peru, at the time; that the friend was her ex-boyfriend “Eulysis (phonetic sp.)” (Tr. 32); and that since Eulysis had already come to the United States, he “knew the process,” and she consulted him on how to get her passport and visa (Tr. 30).

Q. So ... what was the process to get the passport and visa?
A. He just told me to go to the agency. They took some pictures and he told me not to worry that he would be responsible for taking care of the rest.

(Tr. 30; see also Tr. 35 (“They took my fingerprints and my personal information.”).) Alfaro testified she was not charged a fee when she picked up the documents from the agency

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Alfaro-Gonzales v. Mukasey, 257 F. App'x 427 (2d Cir. 2007).

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