Munoz-Avila v. Holder

• Decision Date: 03 May 2013
• Docket Number: Nos. 10–3203,11–2645,12–1594.,s. 10–3203
• Citation: 716 F.3d 976
• Parties: Fidel MUNOZ–AVILA, also known as Fidel Munoz Avila, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

716 F.3d 976

Fidel MUNOZ–AVILA, also known as Fidel Munoz Avila, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 10–3203, 11–2645, 12–1594.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 6, 2012.

Decided May 3, 2013.

Royal F. Berg (submitted), Attorney, Chicago, IL, for Petitioner.

OIL, Attorney, Colin J. Tucker, Trial Attorney, Department of Justice, Washington, DC, for Respondent.

Before ROVNER and HAMILTON, Circuit Judges, and LEFKOW, District Judge.^*

ROVNER, Circuit Judge.

Fidel Munoz Avila came to the attention of the Department of Homeland Security (DHS) when he filed an application for adjustment of status based on his marriage to a United States citizen. Avila and his wife have been married since 1999, and have two young daughters. He has been employed laying granite countertops since approximately 1997. DHS concluded that Avila was ineligible for adjustment of status based on its determination that he attempted to enter the United States on February 19, 1997, by representing himself to be U.S. citizen, and that he had actually entered the United States at a later date without presenting himself for inspection.

DHS subsequently issued a Notice to Appear charging that Avila was removable on the following grounds: (1) as an alien present in the United States without inspection or admission, under 8 U.S.C. § 1182(a)(6)(A)(i); and (2) as an alien who falsely represented himself to be a citizen of the United States for an immigration benefit under 8 U.S.C. § 1182(a)(6)(C)(ii). Avila conceded that he was removable as an alien who is present without being admitted or paroled in that he had entered the United States without presenting himself to a border checkpoint. He contends, however, that he is not removable for the additional reason that he had made a false claim of U.S. citizenship.

That allegation stemmed from an earlier, unsuccessful attempt made by Avila to enter the United States. At that time, he presented himself to a checkpoint, but was detained and then allowed to withdraw his request for admission and return to Mexico in lieu of removal proceedings. The government contends that at that checkpoint, Avila made a false representation that he was a U.S. citizen, and Avila denies that assertion.

The issue is significant even though Avila has conceded removability as an alien present without being admitted or paroled. That provision renders him removable unless he demonstrates that he qualifies for and merits some form of relief or protections from removal. 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). Avila seeks relief from removal by adjusting his status based on his marriage to a U.S. citizen, but in order to establish eligibility for that relief, he must demonstrate that he is admissible. See 8 U.S.C. § 1255(a). A false claim of United States citizenship under 8 U.S.C. § 1182(a)(6)(C)(ii) is a grounds of inadmissibility. It has been characterized as the “immigrant version of the death penalty,” because that ground of inadmissibility cannot be waived by the Attorney General and therefore operates as a permanent bar. Sandoval v. Holder, 641 F.3d 982, 984–85 (8th Cir.2011); Kirong v. Mukasey, 529 F.3d 800, 803 (8th Cir.2008). Accordingly, Avila will be prohibited from relief from removal and adjustment of status unless he carries his burden of demonstrating that he is not inadmissible for making a false claim of United States citizenship. See id. at 802.

After a hearing, the Immigration Judge (IJ) found him removable on both grounds and denied his applications for adjustment of status and for voluntary departure. The Board of Immigration Appeal (BIA) affirmed on appeal, with one of the Board members dissenting without opinion. Avila then appealed to this court, but at argument requested that we stay our ruling until his motions to reopen and for reconsideration before the BIA were decided. The BIA ultimately denied him the requested relief in those motions, and he has appealed those determinations to this court. The matters are consolidated for purposes of this appeal.

Where, as here, the BIA adopts and supplements the IJ's decision, we review the IJ's decision as supplemented by that of the BIA. Barradas v. Holder, 582 F.3d 754, 762 (7th Cir.2009). We will reverse only if the evidence compels the conclusion that the BIA ruled incorrectly. Id. We review de novo the BIA's conclusions of law. Gutierrez–Berdin v. Holder, 618 F.3d 647, 651 (7th Cir.2010).

At the hearing before the IJ, the government presented no witness testimony, but relied on three documents to establish that Avila claimed to be a U.S. citizen. Two of the documents were government forms, Form I–213 and the Notice of Visa Cancellation/Border Crossing Card Voidance (“Notice of Visa Cancellation”), which were filled out by immigration officials at the time that Avila attempted to gain entry into the country. Form I–213 states that: “On the above date, the subject made application for entry into the United States, from Mexico at the San Ysidro, Port of Entry by presenting [a] Baptismal Certificate ... given by friends....” That content is essentially repeated in the Notice of Visa Cancellation, which declares “On 2–18–97, the aforementioned subject attempted to enter into the United States from Mexico, afoot, via the San Ysidro, Port of Entry presenting an entry document belonging to another. Subject was allowed to withdraw in lieu of exclusion proceedings and was returned to Mexico.” The third document introduced by the government is a baptismal certificate, which the government argues is the baptismal certificate presented by Avila to the immigration officials.

Avila testified at the hearing, and asserted that he did not present the baptismal certificate to the immigration officials, but rather that it fell out of his pocket when he approached them. He claims that he had found the certificate on a bench in Mexico, and was bringing it with him to the United States with the intent to forward it to the church of the baptism so that it could be returned to the owner. He asserted that such documents were routinely stolen by Mexican postal officials so that he did not trust mailing it from there, and that he knew that it was important to the owner because it is often needed for marriage.

The IJ did not find the testimony of Avila credible, and therefore concluded that Avila had presented the certificate to the officials. There is no indication from either the government or Avila of any other representation made by Avila at the entry point other than the handing of the certificate.

The BIA affirmed the IJ's determination, holding that it could not conclude that the adverse credibility determination was erroneous. The BIA further held that the IJ did not err in considering the documents introduced by the government. In footnote 1, the BIA stated:

We emphasize that the Immigration Judge's decision and our decision in this matter do not make a legal conclusion that the respondent made a false claim to United States citizenship. Rather, these decisions are based on the respondent's failure to carry his burden of proof with regard to his eligibility for adjustment of status, due to his failure to establish his admissibility.

BIA Order of August 24, 2010 at 2, n.1. The BIA, with one Board member dissenting, thus did not conclude that Avila had made a false claim of U.S. citizenship and was subject to removal on that basis, but denied relief on the uncontested ground of removal because it concluded that Avila had failed to prove that he was not inadmissible in that he failed to establish that he did not file a false claim of U.S. citizenship.

Avila filed motions to reopen and for reconsideration to the BIA. One argument raised was that the IJ indeed had held that Avila had made a false claim of citizenship, and that the BIA erred in stating that the IJ decision did not rest on that legal conclusion. In response, the BIA granted the motion for reconsideration for the purpose of merely deleting footnote 1, reasoning that the IJ had in fact found that the government met its burden of demonstrating that Avila was removable for making a false claim of U.S. citizenship and that the IJ's conclusion was supported in the record. The BIA provided no other explanation or reasoning, and the dissenting member declined Avila's request to set forth his reason for dissenting. Avila now appeals both the original decision and the decisions on his motions to reopen and for reconsideration.

Some of Avila's claims on appeal can be dismissed quickly. Avila contends that the IJ erred in considering the baptismal certificate and the government documents, Forms I–213 and the Notice of Visa Cancellation. As we set forth in Barradas, “[w]e have long allowed the admission of Forms I–213 to prove the truth of their contents.” 582 F.3d at 763. We held that absent any indication that the forms contain information that is manifestly incorrect or obtained by duress, the forms should be considered inherently trustworthy and admissible as evidence. Id.;Gutierrez–Berdin, 618 F.3d at 653. Avila has given us no reason to reconsider that determination, nor has he sought to distinguish the Notice of Visa Cancellation, which contains the same essential information as found on Form I–213. He does not argue that the forms contain incorrect information or information that was obtained by duress. Moreover, although he challenges the admission of the baptismal certificate, he does not contest that it was the certificate in his possession at the entry point. The IJ did not err in considering those documents.

Avila also asserts that the IJ erred in determining that his testimony was not credible. As credibility determinations are questions of fact, we examine the IJ's findings deferentially and uphold them if they are supported by substantial evidence. Abraham v. Holder, 647 F.3d 626, 632 (7th Cir.2011); Nigussie...