Efrain Gomez Velasquez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 18, 2020
• Docket: 20-10606
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10606 Non-Argument Calendar ________________________

Agency No. A205-102-889

EFRAIN GOMEZ VELASQUEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(December 18, 2020)

Before MARTIN, BRANCH and FAY, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10606 Date Filed: 12/18/2020 Page: 2 of 12

Efrain Gomez Velasquez (“Gomez”) petitions for the review of the order of

the Board of Immigrations Appeals (“BIA”) affirming the Immigration Judge’s

(“IJ”) decision denying Gomez cancellation of removal pursuant to the

Immigration and Nationality Act (“INA”) § 240A(b)(1), 8 U.S.C. § 1229(b)(1).

We deny his petition.

I. BACKGROUND

Gomez is a native and citizen of Guatemala who entered the United States

without inspection in June 1999. In 2012, Gomez was served with a notice to

appear, which alleged that he was removable pursuant to INA § 212(a)(6)(A)(i), 8

U.S.C. § 1182(a)(6)(A)(i), for having entered the country without inspection. At

an initial hearing, Gomez conceded removability and indicated that he would apply

for cancellation of his removal, which he subsequently did. In 2014, Gomez’s

wife, Faustina Matias Pablo (“Matias”), also was served with a notice to appear,

which contained similar allegations. Their cases were consolidated; Matias also

applied for cancellation.

At the merits hearing in 2016, Gomez testified he was from Guatemala and

had entered the United States without inspection in 1999. He had been married to

Matias since 2013; they had been together for around 23 years. He admitted to

being arrested four times in the United States; the first arrest, in 2006, involved an

argument with Matias, and the charges were dropped. He stated that they had an

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argument and “[s]he became upset, and maybe she thought [he] was going to hit

her, and she called the police. But that didn’t happen.” He stated that the police

“had to take [him] in because [he] was upset, just to calm down.” That was the

only time he was arrested for an issue with his wife, but his wife did not accuse

him of physical contact. He was unsure of the ultimate legal disposition of his

arrest, but he believed that his wife withdrew the charges.

The IJ questioned Gomez, asking why Matias believed that he was going to

hit her. He replied that he “honestly [did not] know.” He also stated that he “never

hit her.” He said that, if Matias were questioned about the incident, she would

confirm that he did not hit her.

The government called Matias, who testified that she called the police

because she was afraid of Gomez during the argument. He hit her on her face,

which was the first time he had done so. Gomez subsequently retook the witness

stand and stated, “The truth is -- well, I didn’t hit her hard.” He confirmed that he

had hit his wife. He then stated, “I’m sorry. I’m sorry for having lied. I don’t

know. I’m sorry for that.” He stated that he was not sure why he had lied to the

court and blamed it on his nerves. The IJ then asked him again why he had lied, to

which Gomez responded, “Maybe I was afraid of being deported . . . and having

my children without their father.” The IJ then asked, “So, you were afraid that if

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you told the court the truth, that you would be deported?” Gomez responded,

“Yes.”

The IJ denied Gomez’s application for cancellation of removal and granted

Matias’s application. She found that Gomez was not credible because he

repeatedly denied having hit his wife until he was confronted with his wife’s

testimony to the contrary and that Gomez admitted to giving false testimony

because he was afraid that the truth would result in his removal. The IJ found that

Gomez’s “falsehood was a deliberate attempt to procure a benefit to preclude his

removal,” so he was subject to INA § 101(f)(6), 8 U.S.C. § 1101(f)(6), which

precludes a finding of good moral character if an individual offers false testimony

to obtain an immigration benefit. Accordingly, the IJ concluded that he lacked the

good moral character statutorily required for cancellation of removal.

Gomez appealed to the BIA. The BIA affirmed the IJ’s decision, explaining

that a person is precluded from having the good moral character required for

cancellation if he gives false testimony for the purpose of obtaining an immigration

benefit. The BIA “discern[ed] no clear error in the Immigration Judge’s factual

finding that [Gomez] provided false testimony for the purpose of avoiding

removal.” It noted that Gomez admitted to lying about not hitting his wife because

he was afraid of being deported and that, relying on Matter of Richmond, 26 I. &

N. Dec. 779 (BIA 2016), Gomez had “argue[d] that he did not lie with the intent to

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obtain a benefit, but rather to avoid removal.” It concluded that Richmond did not

apply because it involved a different statute; however, to the extent that it did

apply, Richmond supported the IJ’s reasoning because the desire to avoid removal

proceedings was a “purpose” under a statute involving false claims to U.S.

citizenship. The fact that Gomez had not directly mentioned his application for

cancellation of removal was irrelevant because his lie occurred during his hearing

on his application and cancellation of removal is “undoubtedly a benefit” under the

INA. The BIA dismissed the appeal.

On petition for review, Gomez argues that (1) the BIA erred in implicitly

finding that his subjective intent was not required under § 1101(f)(6); (2) the BIA

improperly made its own finding as to subjectivity; and (3) lying to avoid removal

is not lying to obtain an immigration benefit.

II. DISCUSSION

We review only the decision of the BIA, except to the extent that the BIA

expressly adopts or explicitly agrees with the IJ’s opinion. Ayala v. U.S. Att’y

Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). We review questions of law de novo

and administrative factfinding for substantial evidence. Id. at 948. The BIA

cannot engage in factfinding; it reviews the IJ’s findings only for clear error. 8

C.F.R. § 1003.1(d)(3)(i).

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We review our subject matter jurisdiction de novo. Martinez v. U.S. Att’y

Gen., 446 F.3d 1219, 1221 (11th Cir. 2006). Under the INA, we lack jurisdiction

to review discretionary judgments regarding petitions for cancellation of removal.

INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). However, we retain

jurisdiction to review “constitutional claims or questions of law raised upon a

petition for review.” INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). The claim

must be colorable, and “a party may not dress up a claim with legal or

constitutional clothing to invoke our jurisdiction.” Patel v. U.S. Att’y Gen., 971

F.3d 1258, 1272 (11th Cir. 2020) (en banc) (“Patel II”). In Patel II, we overruled

en banc our line of cases stating that we have jurisdiction under the discretionary

decision bar to review “non-discretionary legal decisions that pertain to statutory

eligibility for discretionary relief.” Id. at 1262 (quoting Gonzalez-Oropeza v. U.S.

Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003)). Instead, we are precluded from

reviewing “‘any judgment regarding the granting of relief under [8 U.S.C §§]

1182(h), 1182(i), 1229b, 1229c, or 1255’ except to the extent that such review

involves constitutional claims or questions of law.” Id. (alteration in original)

(citing 8 U.S.C. § 1252(a)(2)(B)(i) & (D)). An argument that the BIA applied the

wrong legal standard is a question of law. Jeune v. U.S. Att’y Gen., 810 F.3d 792,

799 (11th Cir. 2016); see also Patel II, 971 F.3d at 1283-84 (explaining that we

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have jurisdiction over the alleged misapplication of a legal standard, which

includes the meaning of a statute).

Although we review the BIA’s statutory interpretation de novo, we will give

Chevron 1 deference to the BIA’s reasonable interpretation of an ambiguous statute.

Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). However, if

we determine that the statute is not ambiguous using the “traditional tools of

statutory construction,” then we give no deference to the BIA. Barton v. U.S. Att’y

Gen., 904 F.3d 1294, 1298 (11th Cir. 2018), cert. granted sub nom. Barton v. Barr,

139 S. Ct. 1615 (2019), and aff’d sub nom. Barton v. Barr, 140 S. Ct. 1442 (2020).

We give statutory language its ordinary meaning, id. at 1298, and look to “whether

the language at issue has a plain and unambiguous meaning with regard to the

particular dispute in the case,” Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1365

(11th Cir. 2011) (quoting Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir.

2007)). Dictionaries are permissible indicators of meaning, and the use of “any” in

a statute expands the meaning of the word that it modifies. Patel II, 971 F.3d at

1273-74.

For certain nonpermanent residents, the Attorney General may cancel the

removal of a noncitizen 2 who is inadmissible or deportable from the United States

1 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). 2 The term “noncitizen” is equivalent to the statutory term “alien.” See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020); United States v. Estrada, 969 F.3d 1245, 1253 n.3 (11th Cir. 2020). 7 USCA11 Case: 20-10606 Date Filed: 12/18/2020 Page: 8 of 12

if the noncitizen: (1) has been physically present in the United States for a

continuous period of not less than ten years prior to the application; (2) has been a

person of good moral character for those ten years; (3) has not been convicted of

the crimes outlined at 8 U.S.C. §§ 1182(a)(2), 1227(a)(2) and 1227(a)(3); and

(4) establishes that his removal “would result in exceptional and extremely unusual

hardship” to his spouse, parent, or child who is a U.S. citizen or lawful permanent

resident. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). However, the INA prohibits

a finding of good moral character if the noncitizen “has given false testimony for

the purpose of obtaining any benefits under this chapter.” INA § 101(f)(6), 8

U.S.C. § 1101(f)(6). “[Section] 1101(f)(6) applies to only those misrepresentations

made with the subjective intent of obtaining immigration benefits.” Kungys v.

United States, 485 U.S. 759, 780, 108 S. Ct. 1537, 1551 (1988). In rejecting a

requirement that the false statement be a material misrepresentation, the Supreme

Court explained that the primary purpose of INA § 101(f)(6), 8 U.S.C.

§ 1101(f)(6), is to inquire into a noncitizen’s character and not to prevent falsities

from influencing immigration proceedings. Id., 108 S. Ct. at 1551. Whether a

noncitizen possessed the requisite subjective intent is a question of fact. Id. at 782,

108 S. Ct. at 1552.

We have not specifically addressed the meaning of “any benefits” under

INA § 101(f)(6), 8 U.S.C. § 1101(f)(6), and whether an admission to lying to avoid

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removal qualifies as “giv[ing] false testimony for the purpose of obtaining [a]

benefit[]” under the INA. Black’s Law Dictionary defines a “benefit” as, among

other things, “the helpful or useful effect something has.” Benefit, Black’s Law

Dictionary (11th ed. 2019). Merriam Webster’s definitions of “benefit” include

“something that produces good or helpful results or effects.” Benefit,

Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/benefit (last visited December 9, 2020). Other Circuit

Courts also have not squarely defined what qualifies as a “benefit” under INA

§ 101(f)(6). However, the Fifth Circuit has held that “a permanent resident

consequently ‘obtains’ a ‘benefit’ if he successfully withstands an investigation”

into his immigration status. Liwanag v. I.N.S., 872 F.2d 685, 689 (5th Cir. 1989)

(reviewing a claim from a noncitizen who argued that “his false testimony was

delivered not to ‘obtain’ immigration benefits, as the statute reads, but rather to

‘retain’ his permanent resident status”).

In Richmond v. Holder, the Second Circuit reviewed a BIA decision holding

that a noncitizen who had lied about his citizenship status to avoid removal had

lied for “any purpose or benefit” under state or federal law, and was thus

inadmissible pursuant to INA § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I).

Richmond v. Holder, 714 F.3d 725, 727 (2d Cir. 2013). Because what qualified as

a “purpose or benefit” was a novel question of law, the Second Circuit remanded

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the case back to the BIA. Id. at 730-31. On remand, the BIA relied on Kungys to

conclude that, like INA § 101(f)(6), INA § 212(a)(6)(C)(ii)(I) also requires that the

noncitizen have the subjective intent tfo obtain the “purpose or benefit.” Matter of

Richmond, 26 I. & N. Dec. 779, 784 (BIA 2016). The BIA noted that, in INA

§ 212(a)(6)(C)(ii)(I), “purpose or benefit” was drafted in the disjunctive, so the

words must have separate meanings. Id. at 787. It then interpreted “benefit” as

something “identifiable and enumerated” in state or federal law, such as admission

to the United States or obtaining a passport, but not “avoiding removal

proceedings.” Id. at 787-88. It then defined “purpose” to include the “avoidance

of negative legal consequences,” which would include removal proceedings. Id. at

788.

Although we have addressed and criticized Richmond’s reasoning as “flawed

and unclear” regarding the BIA’s imposition of a materiality element in INA

§ 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I), we have not addressed the

BIA’s analysis relating to the meaning of “purpose or benefit.” Patel v. U.S. Att’y

Gen., 917 F.3d 1319, 1325 (11th Cir. 2019) (“Patel I”), vacated in part by Patel II,

971 F.3d at 1284 (keeping intact the original panel’s ruling that INA

§ 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I), lacks a materiality element).

To the extent that Gomez argues that the BIA misapplied legal standards and

misinterpreted a statute, he has raised an argument sufficient for our jurisdiction.

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See Patel II, 971 F.3d at 1272, 1283-84; Jeune, 810 F.3d at 799. However, on the

merits, Gomez’s arguments are incorrect. First, the BIA did not implicitly find that

subjective intent was not required; relying on the record, it recognized that

subjective intent was a question of fact, applied the correct standard of review, and

found that the IJ had not erred in finding that Gomez gave false testimony to avoid

removal. See 8 C.F.R. § 1003.1(d)(3)(i). For this reason, Gomez’s reliance on

Kungys is misplaced. The BIA did not imply that this case creates an exception to

Kungys, as Kungys was clear that INA § 101(f)(6) prohibits “only those

misrepresentations made with the subjective intent of obtaining immigration

benefits.” Kungys, 485 U.S. at 780, 108 S. Ct. at 1551. Accordingly, the BIA

relied on the IJ’s factfinding to make the legal conclusion that Gomez’s lying to

avoid removal was a lie to obtain an immigration benefit.

Second, the BIA did not make its own finding. The IJ found that Gomez fell

within INA § 101(f)(6) and that Gomez had “attempt[ed] to procure a benefit to

preclude his removal,” rather than simply to avoid removal; the BIA agreed. The

BIA reasoned that it was unnecessary for either Gomez or the IJ to explicitly

connect the lie to avoid removal with a lie to avoid cancellation because the lie

occurred at the cancellation hearing. It relied on the facts as found by the IJ to

make a legal conclusion and did not engage in any impermissible factfinding. See

8 C.F.R. § 1003.1(d)(3)(i).

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Third, Gomez is wrong in arguing that his lying to avoid removal is not an

immigration benefit. Having conceded removability, the only way for him to

remain in the United States was to apply for cancellation. See INA § 240A(b)(1), 8

U.S.C. § 1229b(b)(1). When he lied, he already had conceded removability and

had applied for cancellation; he made the false statement during the only hearing

that would determine whether he could stay in the United States. His conduct falls

within the ordinary meaning of “any benefit” because the only way that he could

avoid removal was to receive cancellation; his lie to avoid removal was

synonymous with receiving cancellation, which is an immigration benefit. See

Lanier, 631 F.3d at 1365; INA § 240A(b)(1)(B), 8 U.S.C. § 1229b(b)(1)(B).

Gomez’s reliance on Richmond is also misplaced, as the BIA interpreted a

different statute that contained additional language that is not present here. 26 I. &

N. Dec. at 784. In any event, both the IJ and BIA found that Gomez had lied to

obtain the benefit of cancellation, which would prevent his removal. 3

PETITION DENIED.

3 To the extent that Gomez argues that the BIA erred in this conclusion, we lack jurisdiction to consider it because the conclusion is not a question of law. Patel II, 971 F.3d at 1272, 1283-84. 12