Rodriguez-Serrano v. Ashcroft

120 F. App'x 11

Opinions

MEMORANDUM

*

Alfonso Rodriguez-Serrano petitions for review of a decision of the Board of Immigration Appeals (the Board) and of a related decision of the Legalization Appeals Unit (the LAU). We deny both petitions.

The parties are familiar with the facts, and we confine ourselves to those central to the dispositive issue. Rodriguez-Serrano’s only chance of avoiding deportation is his claim that he was entitled to a grant of residence as a Special Agricultural Worker (SAW) under the Immigration and Naturalization Act, § 210, 8 U.S.C. § 1160 (1965). To obtain this benefit, Rodriguez-Serrano had to establish by the preponderance of the evidence that he had performed at least 90 days of seasonal agricultural service during the twelve-month period ending May 1, 1986. Id. § 1160(a)(1)(B) and (b)(3)(B)(i). Rodriguez-Serrano supplied the affidavit on Form 1-705 of one Jessie Pesina, contracting foreman at Action Produce at Willcox, Arizona, who stated that Rodriguez-Serrano had worked 123 days at this farm thinning and weeding lettuce between May 1, 1985 and May 26, 1986. Rodriguez-Serrano also submitted his own affidavit to the same effect as well as notarized letters from two laborers, one of whom stated that Rodriguez-Serrano worked for Pesina during the relevant dates and the other of whom stated that Rodriguez-Serrano worked with him at Willcox during the relevant period.

Six months after Rodriguez-Serrano’s application was filed, Pesina executed an affidavit at the behest of the United States Attorney in Tucson, stating that she had supplied approximately 1,000 Form 1-705 to persons applying for SAW status; with the exception of fifty-four persons now listed by her in her own handwriting, the other applicants had been provided by her with false documentation. Rodriguez-Serrano was not listed as an exception.

Rodriguez-Serrano was informed of this evidence by the Immigration Service. He offered nothing further to rebut it. The Service denied his application. Rodriguez-Serrano appealed to the LAU, which, after a remand to obtain clarification of the information, held that “the derogatory information regarding Jessie Pesina directly contradicts the appellant’s claim.”

The findings of fact and determinations of the LAU are “conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.” 8 U.S.C. § 1160(e)(3)(B) (1995). Pesina’s second affidavit canceled her first affidavit. At the same time, the second affidavit provided the basis for a fair inference that Rodriguez was party to Pesina’s fraud; his own affidavit and hers marched hand in hand; the two workers’ notarized letters were not clear and convincing to the contrary. We cannot say that the LAU in its careful decision abused its discretion or made findings contrary to the record considered as a whole.

Rodriguez-Serrano’s appeal from the Board is without merit.

The petitions are DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.