Claudia Marcela Barco Diaz v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 13, 2018
• Docket: 17-12790
• Status: Unpublished

Opinion

Case: 17-12790 Date Filed: 07/13/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12790 Non-Argument Calendar ________________________

Agency No. A079-513-870

CLAUDIA MARCELA BARCO DIAZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(July 13, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-12790 Date Filed: 07/13/2018 Page: 2 of 4

Claudia Marcela Barco Diaz (“Barco”) seeks review of the Board of

Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”)

decision sustaining a removability charge under Immigration and Nationality Act

(“INA”) § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), based on inadmissibility under

INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), for willfully misrepresenting a

material fact to procure adjustment of status. Barco argues that there is a lack of

substantial evidence to support the BIA’s determination that the Department of

Homeland Security (“DHS”) had proven by clear and convincing evidence that she

knew of or authorized the misrepresentations on her adjustment application that

was filed on her behalf by her attorney Marcial Cordero. She argues that the

government did not provide evidence of her knowledge of the misrepresentations

at the time of the application, although she admits knowing about them (and lying

to the government about them) later. She contends that her post-adjustment-

conduct and the agency’s adverse credibility finding are not sufficient evidence of

her contemporaneous knowledge of the misrepresentations in her application.

This Court reviews the BIA decision as the final agency decision, but also

reviews the IJ decision if the BIA adopted it or to the extent the BIA expressly

agreed with its reasoning. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir.

2010); Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009).

2 Case: 17-12790 Date Filed: 07/13/2018 Page: 3 of 4

This Court reviews factual determinations under the substantial-evidence

test. Ruiz v. U.S. Att’y. Gen., 440 F.3d 1247, 1254–55 (11th Cir. 2006). This

Court views the evidence in “the light most favorable to the agency’s decision and

draw[s] all reasonable inferences in favor of that decision.” Id. This Court must

affirm the decision “if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. at 1254–55 (quotation omitted).

Accordingly, in order for this Court to conclude that a finding of fact should be

reversed, this Court must determine that the record “compels” reversal. Id.

(quotation omitted). The mere fact that the record may support a contrary

conclusion is not enough to justify reversal of the agency’s findings. Id. Rather,

this Court must affirm the agency’s decision unless there is no reasonable basis for

its decision. Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004).

The government has the burden of proving, by clear and convincing

evidence, that an alien admitted to the United States is deportable. INA

§ 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A). An alien is deportable if she was

inadmissible at the time of her entry or adjustment of status. INA § 237(a)(1)(A),

8 U.S.C. § 1227(a)(1)(A). Under INA § 212(a)(6)(C)(i), 8 U.S.C.

§ 1182(a)(6)(C)(i), “[a]ny alien who, by fraud or willfully misrepresenting a

material fact, seeks to procure . . . a visa, other documentation, or admission into

the United States or other [immigration] benefit . . . is inadmissible.” Ortiz-

3 Case: 17-12790 Date Filed: 07/13/2018 Page: 4 of 4

Bouchet v. U.S. Att’y Gen., 714 F.3d 1353, 1356-57 (11th Cir. 2013). If an agent

willfully misrepresented facts for an alien, then the alien must have been aware of

or authorized the misrepresentation. Id. at 1357.

In a similar case, this Court has concluded, in light of the agency’s express

finding—itself supported by substantial evidence—that another petitioner was not

credible, that substantial evidence supported a finding that the petitioner procured

an immigration benefit through fraud or a willful misrepresentation,

notwithstanding the petitioner’s contention that her wrong assertion that she had a

valid marriage had been an honest mistake. Alhuay v. U.S. Att’y Gen., 661 F.3d

534, 546-47 (11th Cir. 2011).

Here, Barco does not challenge the agency’s express finding that she was not

credible. In light of this finding, and the undisputed evidence that Barco later knew

about and lied about the misrepresentation, substantial evidence supports the BIA’s

determination that DHS had proven by clear and convincing evidence that Barco

had contemporaneous knowledge of or authorized Cordero’s misrepresentations.

PETITION DENIED.