16-3827 Taman v. Sessions BIA Montante, IJ A078 330 707 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 26th day of February, two thousand eighteen.
PRESENT: DENNIS JACOBS, PETER W. HALL, DENNY CHIN, Circuit Judges. _____________________________________
WALID HASSAN TAMAN, AKA WALTER HASSAN TAMAN, Petitioner,
v. 16-3827 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Anne E. Doebler, Buffalo, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Derek C. Julius, Assistant Director; Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, 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 Walid Hassan Taman, a native and citizen of
Egypt, seeks review of an October 12, 2016, decision of the
BIA affirming an April 28, 2015, decision of an Immigration
Judge (“IJ”). In re Walid Hassan Taman, No. A 078 330 707
(B.I.A. Oct. 12, 2016), aff’g No. A 078 330 707 (Immig. Ct.
Buffalo Apr. 28, 2015). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We have reviewed the decision of the IJ as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards
of review are well established. See Y.C. v. Holder, 741 F.3d
324, 332 (2d Cir. 2013) (reviewing agency’s legal conclusions
de novo and factual findings for substantial evidence).
I. Adjustment of Status
We retain jurisdiction to review the agency’s
determination that Taman was statutorily ineligible for
adjustment of status. See Richmond v. Holder, 714 F.3d
2 725, 728 (2d Cir. 2013); Harjinder Singh v. Gonzales, 468
F.3d 135, 138 (2d Cir. 2006). Accordingly, we review
whether Taman’s false statements of U.S. citizenship before
federal and state officials rendered him ineligible for
adjustment of status. See Ling Yang v. Mukasey, 514 F.3d
278, 279 (2d Cir. 2008) (holding that we retain
jurisdiction where “the discretionary determination is
based on the same grounds as the eligibility
determination”).
To qualify for adjustment of status, Taman had to prove
that he (1) had been inspected and admitted; (2) is
admissible; (3) has an immediately available immigrant visa
number; and (4) warrants a favorable exercise of
discretion. See 8 U.S.C. § 1255(a). The sole issue here is
whether Taman is inadmissible, and thus ineligible to
adjust, because he made false representations of U.S.
citizenship. Id. § 1182(a)(6)(C)(ii). He is.
Taman argues that none of his statements in July and
August 2000 were made to obtain an immigration benefit.
Making a false claim of U.S. citizenship to apply for
documents that confer U.S. immigration benefits constitutes
a “purpose or benefit” rendering an applicant inadmissible.
3 Richmond, 714 F.3d at 729 n.4; see also Rodriguez v.
Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) (holding that
applying for U.S. passport counts as “purpose or benefit”
triggering inadmissibility). Taman argues that the
documents he sought from federal agencies and the state of
Montana—a birth certificate, social security cards,
declarations of marriage, state-issued “no find” letters as
to his place of birth, and a student identification card—
were not made with the intent to derive an immigration
benefit because those documents do not confer such a
benefit on their own. But as the agency determined, Taman
held himself out as a U.S. citizen for the “immediate
purpose of obtaining identification documents under state
law and for the ultimate purpose of obtaining a U.S.
passport,” which would confer an immigration benefit. In re
Walid Hassan Taman, No. A 078 330 707 (B.I.A. Oct. 12,
2016); see Rodriguez, 451 F.3d at 65. Taman does not
dispute that his intent was to gather various forms of
documentation to support a passport application.
Accordingly, the agency did not err in concluding that
Taman’s false claims of citizenship were made to obtain
documentation with the intent of securing a U.S. passport,
4 and thus rendered him inadmissible under 8 U.S.C. §
1182(a)(6)(C)(ii) and ineligible for adjustment of status.
Richmond, 714 F.3d at 729 n.4; Matter of Richmond, 26 I. &
N. Dec. 779, 786-87 (B.I.A. 2016) (holding that false claim
is made to obtain purpose or benefit where there is “direct
or circumstantial evidence” of “subjective intent of
achieving a purpose or obtaining a benefit under the Act or
any other Federal or State law” and an objective basis,
i.e., that “citizenship . . . actually affect or matter to
the purpose or benefit sought”), aff’d Richmond v.
Sessions, 697 F. App’x 106, 107 (2d Cir. 2017) (summary
order) (deferring to BIA’s interpretation).
Taman also argued that he timely retracted any false
claim to U.S. citizenship by attempting to withdraw his
passport application. But the dispositive factor was his
subjective intent or purpose of eventually acquiring a
passport “at the time” that he made each of his false
statements. Matter of Richmond, 26 I. & N. Dec. at 788-90
(explaining that false claim of citizenship on passport
application was fatal both because passport is “benefit,”
and because applicant had “purpose” of evading prohibition
against working where intent was to provide passport to
5 prospective employer).
Moreover, Taman cites no applicable authority for
applying a doctrine of “timely retraction.” His reliance
on the Foreign Affairs Manual is misplaced because that
guidance relates to regulations regarding visa processing
by foreign affairs officers, not removal proceedings. See
9 FAM 40.63 N4.6 (2011); 22 C.F.R. § 40.63. To the extent
the BIA has recognized the possibility of recantation in
other contexts, it must be done voluntarily and without
delay.
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16-3827 Taman v. Sessions BIA Montante, IJ A078 330 707 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 26th day of February, two thousand eighteen.
PRESENT: DENNIS JACOBS, PETER W. HALL, DENNY CHIN, Circuit Judges. _____________________________________
WALID HASSAN TAMAN, AKA WALTER HASSAN TAMAN, Petitioner,
v. 16-3827 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Anne E. Doebler, Buffalo, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Derek C. Julius, Assistant Director; Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, 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 Walid Hassan Taman, a native and citizen of
Egypt, seeks review of an October 12, 2016, decision of the
BIA affirming an April 28, 2015, decision of an Immigration
Judge (“IJ”). In re Walid Hassan Taman, No. A 078 330 707
(B.I.A. Oct. 12, 2016), aff’g No. A 078 330 707 (Immig. Ct.
Buffalo Apr. 28, 2015). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We have reviewed the decision of the IJ as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards
of review are well established. See Y.C. v. Holder, 741 F.3d
324, 332 (2d Cir. 2013) (reviewing agency’s legal conclusions
de novo and factual findings for substantial evidence).
I. Adjustment of Status
We retain jurisdiction to review the agency’s
determination that Taman was statutorily ineligible for
adjustment of status. See Richmond v. Holder, 714 F.3d
2 725, 728 (2d Cir. 2013); Harjinder Singh v. Gonzales, 468
F.3d 135, 138 (2d Cir. 2006). Accordingly, we review
whether Taman’s false statements of U.S. citizenship before
federal and state officials rendered him ineligible for
adjustment of status. See Ling Yang v. Mukasey, 514 F.3d
278, 279 (2d Cir. 2008) (holding that we retain
jurisdiction where “the discretionary determination is
based on the same grounds as the eligibility
determination”).
To qualify for adjustment of status, Taman had to prove
that he (1) had been inspected and admitted; (2) is
admissible; (3) has an immediately available immigrant visa
number; and (4) warrants a favorable exercise of
discretion. See 8 U.S.C. § 1255(a). The sole issue here is
whether Taman is inadmissible, and thus ineligible to
adjust, because he made false representations of U.S.
citizenship. Id. § 1182(a)(6)(C)(ii). He is.
Taman argues that none of his statements in July and
August 2000 were made to obtain an immigration benefit.
Making a false claim of U.S. citizenship to apply for
documents that confer U.S. immigration benefits constitutes
a “purpose or benefit” rendering an applicant inadmissible.
3 Richmond, 714 F.3d at 729 n.4; see also Rodriguez v.
Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) (holding that
applying for U.S. passport counts as “purpose or benefit”
triggering inadmissibility). Taman argues that the
documents he sought from federal agencies and the state of
Montana—a birth certificate, social security cards,
declarations of marriage, state-issued “no find” letters as
to his place of birth, and a student identification card—
were not made with the intent to derive an immigration
benefit because those documents do not confer such a
benefit on their own. But as the agency determined, Taman
held himself out as a U.S. citizen for the “immediate
purpose of obtaining identification documents under state
law and for the ultimate purpose of obtaining a U.S.
passport,” which would confer an immigration benefit. In re
Walid Hassan Taman, No. A 078 330 707 (B.I.A. Oct. 12,
2016); see Rodriguez, 451 F.3d at 65. Taman does not
dispute that his intent was to gather various forms of
documentation to support a passport application.
Accordingly, the agency did not err in concluding that
Taman’s false claims of citizenship were made to obtain
documentation with the intent of securing a U.S. passport,
4 and thus rendered him inadmissible under 8 U.S.C. §
1182(a)(6)(C)(ii) and ineligible for adjustment of status.
Richmond, 714 F.3d at 729 n.4; Matter of Richmond, 26 I. &
N. Dec. 779, 786-87 (B.I.A. 2016) (holding that false claim
is made to obtain purpose or benefit where there is “direct
or circumstantial evidence” of “subjective intent of
achieving a purpose or obtaining a benefit under the Act or
any other Federal or State law” and an objective basis,
i.e., that “citizenship . . . actually affect or matter to
the purpose or benefit sought”), aff’d Richmond v.
Sessions, 697 F. App’x 106, 107 (2d Cir. 2017) (summary
order) (deferring to BIA’s interpretation).
Taman also argued that he timely retracted any false
claim to U.S. citizenship by attempting to withdraw his
passport application. But the dispositive factor was his
subjective intent or purpose of eventually acquiring a
passport “at the time” that he made each of his false
statements. Matter of Richmond, 26 I. & N. Dec. at 788-90
(explaining that false claim of citizenship on passport
application was fatal both because passport is “benefit,”
and because applicant had “purpose” of evading prohibition
against working where intent was to provide passport to
5 prospective employer).
Moreover, Taman cites no applicable authority for
applying a doctrine of “timely retraction.” His reliance
on the Foreign Affairs Manual is misplaced because that
guidance relates to regulations regarding visa processing
by foreign affairs officers, not removal proceedings. See
9 FAM 40.63 N4.6 (2011); 22 C.F.R. § 40.63. To the extent
the BIA has recognized the possibility of recantation in
other contexts, it must be done voluntarily and without
delay. See Matter of Namio, 14 I. & N. Dec. 412, 414
(B.I.A. 1973); see also Matter of M-, 9 I. & N. Dec. 118,
119 (B.I.A. 1960); Matter of R-R-, 3 I. & N. Dec. 823, 827
(B.I.A. 1949) (applying the principle when an alien
“voluntarily and prior to the exposure of the attempted
fraud,” corrected his testimony that he was an alien
lawfully residing in the United States); cf. Mei Juan Zheng
v. Mukasey, 514 F.3d 176, 183 (2d Cir. 2008) (suggesting
BIA consider applicability of timely recantation doctrine
in context of frivolousness filing based on withdrawn
asylum application). Taman presents no evidence that he
mailed his withdrawal letter or that it was received by the
passport office, and the only evidence reflects that he
6 waited a month to withdraw it and that he was already under
investigation, which calls into question the voluntariness
of any recantation. Finally, he never recanted the false
statements he made to other federal and state authorities
to obtain the documentation for the passport application.
II. Abandoned Asylum Application
Taman argues that the IJ should have provided him an
opportunity to apply for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”)
because he expressed a fear of returning to Egypt in his
2007 motion to reopen, and that the BIA should have
remanded his case for consideration of these forms of
relief. We find no abuse of discretion in the agency’s
refusal to consider this relief. See Dedji v. Mukasey 525
F.3d 187, 191 (2d Cir. 2008) (reviewing IJ decision
regarding deadlines for abuse of discretion); Li Yong Cao
v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005)
(reviewing denial of remand for abuse of discretion).
Neither Taman nor his counsel expressed to the IJ that
Taman wanted to apply for asylum or that he feared harm in
Egypt. Absent an allegation of fear, the IJ was not
obligated to advise Taman of the right to apply for asylum.
7 Cf. Matter of C-B-, 25 I. & N. Dec. 888, 890-91 (B.I.A.
2012) (requiring IJ “to advise the respondent of the right
to apply for asylum or withholding of removal (including
protection under the [CAT]) and make the appropriate
application forms available” where respondent states a fear
of harm). Moreover, on appeal to the BIA, Taman did not
submit any previously unavailable evidence to demonstrate
his prima facie eligibility for asylum. See 8 C.F.R.
§ 1003.2(c)(1) (providing that motions to reopen must be
supported by material, previously unavailable evidence).
For the foregoing reasons, the petition for review is
DENIED. The pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court