20-2317 Arcentales Santos v. Garland BIA Lurye, IJ A208 000 969 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty-one.
PRESENT: GUIDO CALABRESI, BARRINGTON D. PARKER, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
CARMEN LUCRECIA ARCENTALES SANTOS, Petitioner,
v. 20-2317
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: PAUL O’DWYER, Law Office of Paul O’Dwyer P.C., New York, NY.
FOR RESPONDENT: DAVID J. SCHOR, Trial Attorney, Office of Immigration Litigation (Leslie McKay, Senior Litigation Counsel, on the brief) for Brian M. Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioner Carmen Lucrecia Arcentales Santos, a native and citizen of
Ecuador, seeks review of a decision of the BIA that affirmed an order of removal
entered by an Immigration Judge (“IJ”). In re Carmen Lucrecia Arcentales Santos,
No. A 208 000 969 (B.I.A. June 22, 2020), aff’g No. A 208 000 969 (Immig. Ct. N.Y.
City June 26, 2018). We assume the parties’ familiarity with the underlying facts
and procedural history.
When the BIA’s “opinion closely tracks the IJ’s reasoning” without
“expressly ‘adopt[ing]’” it, we typically consider both opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). To the extent that the BIA’s decision differs from that of the IJ, explicitly or
2 impliedly, we review the BIA’s decision as the final decision of the agency. See
Nat’l Ass’n of Homebuilders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007) (explaining
that “[t]he federal courts ordinarily are empowered to review only an agency’s final
action”); Yang v. DOJ, 426 F.3d 520, 522 (2d Cir. 2005) (reviewing “the judgment of
the IJ as modified by the BIA’s decision” where the BIA rejected one ground of the
IJ’s decision). “We review the agency’s factual findings for substantial evidence
and questions of law de novo.” Ahmed v. Lynch, 804 F.3d 237, 240 (2d Cir. 2015)
(citation omitted).
In her petition, Arcentales Santos argues that the agency erred in ordering
her removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without admission
or parole, because she was in fact “admitted.” We disagree. In her initial
application for cancelation of removal in 2016, Arcentales Santos conceded her
removability, stating that she had entered the United States without inspection and
admission upon her arrival at John F. Kennedy Airport (“JFK”) in Queens, New
York, in 1999. It was only in 2018 that she asserted, for the first time, that she had
been inspected and admitted, albeit on a false passport and visa. This prompted
the IJ to ask additional questions at the removal hearing concerning the
circumstances of her admission. The IJ ultimately decided not to permit
3 Arcentales Santos to withdraw her concession, in part because Arcentales Santos
offered no evidence other than her own recollection to corroborate her recent claim
of admission.
The IJ did not err in relying on Arcentales Santos’s concession. To be sure,
aliens who have entered the United States by presenting a false passport have been
“admitted” for purposes of 8 U.S.C. § 1182(a)(6)(A)(i). See Emokah v. Mukasey, 523
F.3d 110, 118 (2d Cir. 2008) (noting that “an alien who enters the United States after
inspection and authorization has been ‘admitted’ even if he was, ‘at the time of
entry . . . within one or more of the classes of aliens inadmissible by the
law’”) (quoting 8 U.S.C. § 1227(a) & (a)(1)); Matter of Quilantan, 25 I. & N. Dec. 285,
287–88, 290 (B.I.A. 2010) (holding that the term “admitted” denotes “procedural
regularity for purposes of adjustment of status, rather than compliance with
substantive legal requirements”). An immigration judge may, however, upon a
concession of removability, determine that removability has been established if the
IJ “is satisfied that no issues of law or fact remain.” 8 C.F.R. § 1240.10(c). Only
“[i]n rare cases” may the IJ disregard a concession of removability made by a
represented party, such as when relying on it “would be manifestly unjust” or
when the “concession is . . . plainly contradicted by record evidence.” Hoodho v.
4 Holder, 558 F.3d 184, 191, 192 (2d Cir. 2009) (citation and quotation marks omitted).
As the BIA found, Arcentales Santos did not allege (much less demonstrate)
manifest injustice. Nor was the IJ required to accept Arcentales Santos’s testimony
at face value, especially since she could not produce the false passport or visa she
allegedly used, did not retain a copy of the entry form she claimed she received at
JFK upon her inspection, and could not assist the government in locating an
electronic record of her entry since she claimed she could not remember the full
name on the false passport and visa. The only evidence supporting her admission
was her own testimony and an affidavit from her brother attesting that she
“obtained a visa” and was scheduled to arrive at JFK. Certified Administrative
Record at 452. But her brother did not corroborate any details concerning the visa,
and he admitted that he did not see Arcentales Santos arrive at JFK despite
planning to meet her there. On this record, the IJ was entitled to hold Arcentales
Santos to her concession.
Arcentales Santos calls our attention to several cases in which the BIA found
an alien had been admitted based solely on uncorroborated testimony. But the
fact that certain evidence might be sufficient absent a concession does not mean that
it is sufficient given a concession.
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20-2317 Arcentales Santos v. Garland BIA Lurye, IJ A208 000 969 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty-one.
PRESENT: GUIDO CALABRESI, BARRINGTON D. PARKER, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
CARMEN LUCRECIA ARCENTALES SANTOS, Petitioner,
v. 20-2317
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: PAUL O’DWYER, Law Office of Paul O’Dwyer P.C., New York, NY.
FOR RESPONDENT: DAVID J. SCHOR, Trial Attorney, Office of Immigration Litigation (Leslie McKay, Senior Litigation Counsel, on the brief) for Brian M. Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioner Carmen Lucrecia Arcentales Santos, a native and citizen of
Ecuador, seeks review of a decision of the BIA that affirmed an order of removal
entered by an Immigration Judge (“IJ”). In re Carmen Lucrecia Arcentales Santos,
No. A 208 000 969 (B.I.A. June 22, 2020), aff’g No. A 208 000 969 (Immig. Ct. N.Y.
City June 26, 2018). We assume the parties’ familiarity with the underlying facts
and procedural history.
When the BIA’s “opinion closely tracks the IJ’s reasoning” without
“expressly ‘adopt[ing]’” it, we typically consider both opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). To the extent that the BIA’s decision differs from that of the IJ, explicitly or
2 impliedly, we review the BIA’s decision as the final decision of the agency. See
Nat’l Ass’n of Homebuilders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007) (explaining
that “[t]he federal courts ordinarily are empowered to review only an agency’s final
action”); Yang v. DOJ, 426 F.3d 520, 522 (2d Cir. 2005) (reviewing “the judgment of
the IJ as modified by the BIA’s decision” where the BIA rejected one ground of the
IJ’s decision). “We review the agency’s factual findings for substantial evidence
and questions of law de novo.” Ahmed v. Lynch, 804 F.3d 237, 240 (2d Cir. 2015)
(citation omitted).
In her petition, Arcentales Santos argues that the agency erred in ordering
her removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without admission
or parole, because she was in fact “admitted.” We disagree. In her initial
application for cancelation of removal in 2016, Arcentales Santos conceded her
removability, stating that she had entered the United States without inspection and
admission upon her arrival at John F. Kennedy Airport (“JFK”) in Queens, New
York, in 1999. It was only in 2018 that she asserted, for the first time, that she had
been inspected and admitted, albeit on a false passport and visa. This prompted
the IJ to ask additional questions at the removal hearing concerning the
circumstances of her admission. The IJ ultimately decided not to permit
3 Arcentales Santos to withdraw her concession, in part because Arcentales Santos
offered no evidence other than her own recollection to corroborate her recent claim
of admission.
The IJ did not err in relying on Arcentales Santos’s concession. To be sure,
aliens who have entered the United States by presenting a false passport have been
“admitted” for purposes of 8 U.S.C. § 1182(a)(6)(A)(i). See Emokah v. Mukasey, 523
F.3d 110, 118 (2d Cir. 2008) (noting that “an alien who enters the United States after
inspection and authorization has been ‘admitted’ even if he was, ‘at the time of
entry . . . within one or more of the classes of aliens inadmissible by the
law’”) (quoting 8 U.S.C. § 1227(a) & (a)(1)); Matter of Quilantan, 25 I. & N. Dec. 285,
287–88, 290 (B.I.A. 2010) (holding that the term “admitted” denotes “procedural
regularity for purposes of adjustment of status, rather than compliance with
substantive legal requirements”). An immigration judge may, however, upon a
concession of removability, determine that removability has been established if the
IJ “is satisfied that no issues of law or fact remain.” 8 C.F.R. § 1240.10(c). Only
“[i]n rare cases” may the IJ disregard a concession of removability made by a
represented party, such as when relying on it “would be manifestly unjust” or
when the “concession is . . . plainly contradicted by record evidence.” Hoodho v.
4 Holder, 558 F.3d 184, 191, 192 (2d Cir. 2009) (citation and quotation marks omitted).
As the BIA found, Arcentales Santos did not allege (much less demonstrate)
manifest injustice. Nor was the IJ required to accept Arcentales Santos’s testimony
at face value, especially since she could not produce the false passport or visa she
allegedly used, did not retain a copy of the entry form she claimed she received at
JFK upon her inspection, and could not assist the government in locating an
electronic record of her entry since she claimed she could not remember the full
name on the false passport and visa. The only evidence supporting her admission
was her own testimony and an affidavit from her brother attesting that she
“obtained a visa” and was scheduled to arrive at JFK. Certified Administrative
Record at 452. But her brother did not corroborate any details concerning the visa,
and he admitted that he did not see Arcentales Santos arrive at JFK despite
planning to meet her there. On this record, the IJ was entitled to hold Arcentales
Santos to her concession.
Arcentales Santos calls our attention to several cases in which the BIA found
an alien had been admitted based solely on uncorroborated testimony. But the
fact that certain evidence might be sufficient absent a concession does not mean that
it is sufficient given a concession. Indeed, permitting a concession to be undone
5 merely by a petitioner’s eleventh-hour change in testimony would render any
concession temporary, undermining the goals of “efficiency and judicial economy”
promoted by the “rule of non-inquiry” that typically governs concessions.
Hoodho, 558 F.3d at 191.
Furthermore, consistent with an IJ’s general prerogative to interpret the
record, we have acknowledged that IJs have substantial discretion in determining
whether to withdraw a party’s concession. Id. at 192 n.6 (noting that “[i]t will often
be the case that evidence in the record may to some degree conflict with a
concession of removability,” but explaining that “this does not obviate the general
rule pertaining to judicial admissions”). Even assuming that Arcentales Santos’s
changed testimony was sufficient to permit the IJ to withdraw the concession, that
does not mean the IJ was required to do so. Arcentales Santos points to no
authority, and we are aware of none, where we held it was error for an IJ or the BIA
to hold a party to its concession.
We have considered Arcentales Santos’s remaining arguments and find them
to be meritless. For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court