NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 08-4273 ____________
HILDA B. GOZUN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A098-281-461) Immigration Judge: Honorable Henry Dogin
Submitted Under Third Circuit LAR 34.1(a) April 13, 2010
Before: FISHER, HARDIMAN and COWEN, Circuit Judges.
(Filed: April 14, 2010)
OPINION OF THE COURT ____________ HARDIMAN, Circuit Judge.
Hilda B. Gozun petitions for review of a final order of the Board of Immigration
Appeals (BIA) ordering her removal from the United States because she made material
misrepresentations to a United States consular official when applying for a visa. We will
deny the petition.
I.
Because we write for the parties, we recount only the facts necessary to our
decision.
In 1997, Gozun went to the United States consulate in Manila, Philippines, to
obtain a visitor’s visa. Gozun presented various documents, including a falsified birth
certificate stating she was “Hilda Calderon Valmonte,” born on November 22, 1980. In
reality, Gozun was born eight years earlier, on November 22, 1972. The birth certificate
also falsely identified Anthony Valmonte, who procured the forged birth certificate for
Gozun and accompanied her to the consulate, as her father.1
Using a Philippine passport that also identified her as “Hilda Calderon Valmonte,”
Gozun entered the United States on September 5, 1997 as a non-immigrant visitor with
permission to remain until March 4, 1998. Instead of leaving the United States, Gozun
began living and working in New Jersey. In 2002, Gozun’s employer filed a petition to
1 In the proceedings below, Valmonte is variously identified as “Vermonte,” “Fermonte,” and “Valmonte.” We use “Valmonte” because Gozun obtained travel documents using that name.
2 obtain an alien worker visa for her. After the petition was approved in 2004, Gozun
asked the Department of Homeland Security (DHS) to classify her as a lawful permanent
resident of the United States. In a subsequent interview with a DHS official, Gozun
admitted to using a counterfeit birth certificate to obtain her visitor’s visa in 1997.
Consequently, her petition was denied.
In 2005, DHS commenced proceedings to remove Gozun from the United States,
contending she was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and therefore subject
to removal under 8 U.S.C. § 1227(a)(1)(A) because she made material misrepresentations
when obtaining her visitor’s visa in 1997.2 At a hearing before the Immigration Judge
(IJ), Gozun admitted making false statements to obtain her visa in 1997 but denied that
her misrepresentations were material. The IJ disagreed, finding Gozun’s false statements
were material because they “cut off a line of inquiry” by consular officials into her actual
age, family history, and personal circumstances. Such information, the IJ reasoned, was
relevant to a determination of whether Gozun should have been issued a visitor’s visa.
The IJ thus concluded that Gozun was inadmissible and subject to removal under 8
U.S.C. § 1227(a)(1)(A). Accordingly, the IJ denied her petition for classification as a
2 In a supplemental filing, DHS also alleged that Gozun was subject to removal under 8 U.S.C. § 1227(a)(1)(B) because she had remained in the United States beyond the expiration of her visa on March 4, 1998. Gozun apparently did not contest this allegation.
3 lawful permanent resident and ordered her removed to the Philippines. After the BIA
summarily affirmed the IJ’s determination, Gozun petitioned this Court for review.3
II.
We have jurisdiction over Gozun’s petition for review of the BIA’s final order of
removal pursuant to 8 U.S.C. § 1252. We review the BIA’s factual findings to determine
whether they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We will
reverse the BIA’s factual findings only if the evidence “was so compelling that no
reasonable factfinder could fail to find” for the petitioner. Id. at 483-84. “To the extent
that the BIA’s decision rests on an interpretation of the agency’s governing statute on a
matter as to which Congress has not expressed a clear intent, we defer to the agency’s
reasonable interpretation of the statutory language.” Mwongera v. INS, 187 F.3d 323, 327
(3d Cir. 1999) (citing INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)).
III.
The present case arose when Gozun petitioned DHS to adjust her status to that of a
lawful permanent resident alien. An alien seeking an adjustment of status is removable
from the United States if she is inadmissible under existing immigration law. 8 U.S.C. §
1227(a)(1)(A). And an alien “who, by fraud or willfully misrepresenting a material fact,
3 Because the BIA largely adopted the findings and analysis of the IJ, we may review the portions of the IJ’s opinion on which the BIA relied. See Camara v. Attorney General, 580 F.3d 196, 201 (3d Cir. 2009).
4 seeks to procure (or has sought to procure or has procured) a visa” is inadmissible. 8
U.S.C. § 1182(a)(6)(C)(i). Here, the IJ concluded—and the BIA agreed—that the
material misrepresentations Gozun made to obtain her visa in 1997 rendered her
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and therefore subjected her to removal
under 8 U.S.C. § 1227(a)(1)(A).
Gozun does not dispute that she made misrepresentations when she obtained her
visitor’s visa. Rather, she contends the IJ and BIA incorrectly found her
misrepresentations material because she may have been issued a visa even if she had told
consular officials the truth. Because her misrepresentations were not material, argues
Gozun, she was not inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
Although Gozun correctly notes that materiality has not been defined precisely, the
BIA has long considered a false statement in a visa application to be material “if it tends
to shut off a line of inquiry which is relevant to the alien’s eligibility, and which might
well have resulted in a proper determination that he be excluded.” Matter of Ng, 17 I. &
N. Dec. 536, 537 (B.I.A. 1980); Matter of S-and B-C-, 9 I. & N. Dec. 436, 448-49 (B.I.A.
1961).
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 08-4273 ____________
HILDA B. GOZUN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A098-281-461) Immigration Judge: Honorable Henry Dogin
Submitted Under Third Circuit LAR 34.1(a) April 13, 2010
Before: FISHER, HARDIMAN and COWEN, Circuit Judges.
(Filed: April 14, 2010)
OPINION OF THE COURT ____________ HARDIMAN, Circuit Judge.
Hilda B. Gozun petitions for review of a final order of the Board of Immigration
Appeals (BIA) ordering her removal from the United States because she made material
misrepresentations to a United States consular official when applying for a visa. We will
deny the petition.
I.
Because we write for the parties, we recount only the facts necessary to our
decision.
In 1997, Gozun went to the United States consulate in Manila, Philippines, to
obtain a visitor’s visa. Gozun presented various documents, including a falsified birth
certificate stating she was “Hilda Calderon Valmonte,” born on November 22, 1980. In
reality, Gozun was born eight years earlier, on November 22, 1972. The birth certificate
also falsely identified Anthony Valmonte, who procured the forged birth certificate for
Gozun and accompanied her to the consulate, as her father.1
Using a Philippine passport that also identified her as “Hilda Calderon Valmonte,”
Gozun entered the United States on September 5, 1997 as a non-immigrant visitor with
permission to remain until March 4, 1998. Instead of leaving the United States, Gozun
began living and working in New Jersey. In 2002, Gozun’s employer filed a petition to
1 In the proceedings below, Valmonte is variously identified as “Vermonte,” “Fermonte,” and “Valmonte.” We use “Valmonte” because Gozun obtained travel documents using that name.
2 obtain an alien worker visa for her. After the petition was approved in 2004, Gozun
asked the Department of Homeland Security (DHS) to classify her as a lawful permanent
resident of the United States. In a subsequent interview with a DHS official, Gozun
admitted to using a counterfeit birth certificate to obtain her visitor’s visa in 1997.
Consequently, her petition was denied.
In 2005, DHS commenced proceedings to remove Gozun from the United States,
contending she was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and therefore subject
to removal under 8 U.S.C. § 1227(a)(1)(A) because she made material misrepresentations
when obtaining her visitor’s visa in 1997.2 At a hearing before the Immigration Judge
(IJ), Gozun admitted making false statements to obtain her visa in 1997 but denied that
her misrepresentations were material. The IJ disagreed, finding Gozun’s false statements
were material because they “cut off a line of inquiry” by consular officials into her actual
age, family history, and personal circumstances. Such information, the IJ reasoned, was
relevant to a determination of whether Gozun should have been issued a visitor’s visa.
The IJ thus concluded that Gozun was inadmissible and subject to removal under 8
U.S.C. § 1227(a)(1)(A). Accordingly, the IJ denied her petition for classification as a
2 In a supplemental filing, DHS also alleged that Gozun was subject to removal under 8 U.S.C. § 1227(a)(1)(B) because she had remained in the United States beyond the expiration of her visa on March 4, 1998. Gozun apparently did not contest this allegation.
3 lawful permanent resident and ordered her removed to the Philippines. After the BIA
summarily affirmed the IJ’s determination, Gozun petitioned this Court for review.3
II.
We have jurisdiction over Gozun’s petition for review of the BIA’s final order of
removal pursuant to 8 U.S.C. § 1252. We review the BIA’s factual findings to determine
whether they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We will
reverse the BIA’s factual findings only if the evidence “was so compelling that no
reasonable factfinder could fail to find” for the petitioner. Id. at 483-84. “To the extent
that the BIA’s decision rests on an interpretation of the agency’s governing statute on a
matter as to which Congress has not expressed a clear intent, we defer to the agency’s
reasonable interpretation of the statutory language.” Mwongera v. INS, 187 F.3d 323, 327
(3d Cir. 1999) (citing INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)).
III.
The present case arose when Gozun petitioned DHS to adjust her status to that of a
lawful permanent resident alien. An alien seeking an adjustment of status is removable
from the United States if she is inadmissible under existing immigration law. 8 U.S.C. §
1227(a)(1)(A). And an alien “who, by fraud or willfully misrepresenting a material fact,
3 Because the BIA largely adopted the findings and analysis of the IJ, we may review the portions of the IJ’s opinion on which the BIA relied. See Camara v. Attorney General, 580 F.3d 196, 201 (3d Cir. 2009).
4 seeks to procure (or has sought to procure or has procured) a visa” is inadmissible. 8
U.S.C. § 1182(a)(6)(C)(i). Here, the IJ concluded—and the BIA agreed—that the
material misrepresentations Gozun made to obtain her visa in 1997 rendered her
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and therefore subjected her to removal
under 8 U.S.C. § 1227(a)(1)(A).
Gozun does not dispute that she made misrepresentations when she obtained her
visitor’s visa. Rather, she contends the IJ and BIA incorrectly found her
misrepresentations material because she may have been issued a visa even if she had told
consular officials the truth. Because her misrepresentations were not material, argues
Gozun, she was not inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
Although Gozun correctly notes that materiality has not been defined precisely, the
BIA has long considered a false statement in a visa application to be material “if it tends
to shut off a line of inquiry which is relevant to the alien’s eligibility, and which might
well have resulted in a proper determination that he be excluded.” Matter of Ng, 17 I. &
N. Dec. 536, 537 (B.I.A. 1980); Matter of S-and B-C-, 9 I. & N. Dec. 436, 448-49 (B.I.A.
1961). Because the BIA’s definition of a material misrepresentation is a reasonable
interpretation of the relevant statutory language, we defer to it. See Mwongera, 187 F.3d
at 330.
The record indicates that Gozun’s misrepresentations were undoubtedly material
under the BIA’s definition. By falsifying her birth certificate, Gozun presented herself as
5 a teenage girl who sought to visit the United States with her father, Valmonte. These
misrepresentations shut off a line of inquiry that was relevant to Gozun’s eligibility for a
visa by preventing consular officials from inquiring into the true details of her family
history and personal circumstances. Had officials considering Gozun’s visa application
known the truth—that she was a twenty-four-year-old woman with only a part-time job
who wished to travel alone to the United States—they might well have questioned
whether Gozun actually would return to the Philippines when her visa expired and thus
acted differently on her application. By misleading consular officials, Gozun prevented
them from exploring potentially relevant facts which could have informed their
determination of whether to issue her a visitor’s visa. The BIA’s determination that
Gozun’s misrepresentations were material was thus supported by substantial evidence.
Gozun claims a remand is warranted because the BIA did not examine whether
“disclosure of the true facts would have led to a denial of the visa petition.” In support of
this argument, Gozun notes the IJ’s observation that it was possible consular officials
would have issued the visa even if Gozun had told the truth. See App. at 44 (“[W]ho
knows what the consul would have done[?] They may have denied the visa. They may
have issued the visa.”). But the relevant inquiry is not whether officials necessarily
would have denied her visa application had they known the truth. Instead, the BIA’s
definition asks whether further investigation into information concealed by Gozun “might
well have resulted” in a refusal of her application. Matter of Ng, 17 I. & N. Dec. at 537
6 (emphasis added). As we have noted, consular officials might well have denied Gozun’s
visa application had they known the truth about her. Accordingly, the BIA’s failure to
examine whether the facts concealed by Gozun definitely would have resulted in a denial
of her application does not require remand.4
IV.
Because the determination of the BIA was supported by substantial evidence in the
record, we will deny Gozun’s petition for review.
4 Gozun’s argument that her misrepresentations did not confer upon her an immigration benefit also fails because it does not change the fact that she deprived consular officials of the opportunity to probe relevant facts that might well have led to the denial of her visa application.