Castro v. Attorney Gen. of the United States

• Citation: 671 F.3d 356
• Decision Date: 14 February 2012
• Docket Number: No. 10–3234.,10–3234.
• Parties: Jose Gerardo CASTRO, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

671 F.3d 356

Jose Gerardo CASTRO, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10–3234.

United States Court of Appeals, Third Circuit.

Argued on Oct. 24, 2011.Opinion Filed: Feb. 14, 2012.

Joseph C. Sekula (Argued), Sekula & Sekula, LLC, Paterson, NJ, for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Greg D. Mack, Senior Litigation Counsel, W. Daniel Shieh, Lisa M. Damiano, Attorney (Argued), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: SLOVITER and GREENAWAY, JR., Circuit Judges, and POLLAK, District Judge.^*

OPINION OF THE COURT

POLLAK, District Judge.

Jose Castro, a citizen of Costa Rica, challenges a determination by the Board of Immigration Appeals (“BIA”) that he is inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(C)(ii), which provides that “[a]ny alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.” We conclude that the statute does not apply to Castro's conduct, and we therefore reverse and remand to the BIA.

I. Administrative Proceedings

Castro has lived in the United States since entering the country on a visitor's visa in 1980, when he was twenty years old. In 1989, he married Alma Rangel, who became a U.S. citizen by naturalization in 1997. Castro and Rangel have one child, born in New Jersey in 1990.

A. Adjustment of Status Application

In 2006, Castro filed an application to adjust his status to permanent residence based on his marriage to Rangel. During his interview with the Department of Homeland Security (“DHS”) on his adjustment application, Castro disclosed that he had been arrested in 2004. At DHS's request, Castro provided DHS with a copy of the arrest report for this incident from the Paterson, New Jersey, police department. The arrest report showed that Castro was arrested on September 25, 2004, on a charge of violating N.J. Stat. Ann. § 2C:34–1.1(b).¹ The arrest report listed Castro's place of birth as “Puerto Rico.” Castro also provided DHS with documentation showing that he had resolved the charge against him by pleading guilty to a disorderly conduct municipal offense.

DHS concluded, based on the arrest report, that Castro had falsely claimed to be from Puerto Rico rather than Costa Rica at the time of his arrest. In the agency's view, this triggered the bar to admissibility contained in 8 U.S.C. § 1182(a)(6)(C)(ii). On the basis of its inadmissibility determination, DHS concluded that Castro was ineligible for adjustment of status to permanent residence.² DHS notified Castro on September 5, 2006, that his application for adjustment of status had been denied and that he could be subject to removal proceedings if he failed to depart from the country voluntarily.

B. Immigration Court Proceedings

On February 28, 2007, DHS initiated removal proceedings against Castro on the basis of 8 U.S.C. § 1182(a)(6)(C)(ii).³ DHS later added a charge that Castro was removable because he had overstayed his visa. 8 U.S.C. § 1227(a)(1)(B). Castro conceded that he was removable for having overstayed his visa, but he denied that § 1182(a)(6)(C)(ii) applied to him.

In the Immigration Court, Castro pursued two forms of relief from removal: first, he renewed his previously filed application for adjustment of status to permanent residence; second, he applied for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b).⁴ The Immigration Judge (“IJ”) held a hearing on Castro's case on March 4, 2008. At the outset of the hearing, Castro's counsel observed that he had not yet received the entire administrative record from DHS. That prompted the IJ to ask Castro's counsel whether counsel would like time to review the entire administrative file. Castro's counsel declined, stating, “I don't think there's anything else relevant regarding the adjustment in the administrative package.”

Two witnesses testified at the hearing: Castro and Detective William Palomino, the Paterson police officer who arrested Castro and filled out the arrest report. They gave contrasting accounts of Castro's statements after the arrest.

Palomino testified that Castro provided him with the information about Castro's place of birth that Palomino entered on the arrest report. He further testified that he spoke Spanish and that there was no chance that he could have misunderstood “Costa Rica” as “Puerto Rico.” On cross-examination, Castro's counsel asked Palomino a series of questions about the arrest report:

Q. Okay, so basically your only recall of this [arrest], and it's admittedly over three years ago, is from your police arrest report?

A. Correct.

....

Q. Looking at your arrest report again, there's several things that are not filled in. Why did you not fill in his social security number?

A. He, he didn't give me one.

....

Q. And, if he didn't give you a social security number wouldn't that lead you to believe that he may not be a United States citizen?

A. He didn't know his, not necessarily. He didn't know his, he didn't know his social security number. A lot of people don't know their social security number at the time when we arrest them.

....

Q. Do you see that box where it says U.S. citizen, yes or no, officer?

A. Yes, I do.

Q. And, how come there's nothing checked there?

A. I don't know, sir.

In addition to the arrest report, DHS submitted to the IJ a second document relating to the same incident, entitled “jail arrest card.” On the jail arrest card, the question “U.S. Citizen?” had been marked “Y.” Castro's counsel also questioned Palomino about the jail arrest card:

Q. [D]o you know who fills out the [jail] arrest card?

A. No, sir.

Q. Okay.

A. Whoever the officer is [who] is assigned to cellblock, he usually fills it out, but I don't know.

Palomino also testified about the procedure by which he handled Castro's case:

Q. Okay, would Mr. Castro saying he was a United States citizen or citizen of Costa Rica [have] made any difference regarding your procedure in handling this matter?

A. No, sir.

Q. So there was no benefit gain[ed] by Mr. Castro saying he was from Puerto Rico?

....

A. No, there's no gain.

....

Q. Okay, and would you treat him any differently if he was incarcerated as a person from Puerto Rico or Costa Rica?

A. No, sir.

....

Q. In your practice and procedure in how you arrest people and how you act, would it make a difference where a person is from to what your job is?

A. No, sir.

Q. Okay, so you would have arrested him regardless of his country and you would have detained him and sent him to jail regardless of his country of birth?

A. Yes, sir.

After the conclusion of Palomino's testimony, Castro took the stand. Castro testified that he told Palomino that he was born in “Costa Rica.” He explained that, at the time of his arrest, “we were two people in the car and the other guy was Puerto Rican.” As to the jail arrest card, Castro stated that he volunteered his driver's license at the jail but that he did not provide any additional personal information.

Castro also testified that he first saw the arrest report on “the second day after I was arrested” and that he returned to the police station to tell an officer that “the report was incorrect.” When the IJ asked Castro why he went back to the police, Castro answered “because my wife read [the arrest report] and told me that it was incorrect.” Castro explained that he was about to submit his application for adjustment of status to permanent residence and that he was concerned that “what was being said in the report was erroneous.” Castro testified that when the police officer told him that the error as to his place of birth “was not a problem,” Castro explained to the officer that “yes that was a problem because automatically they will send me back to my country and I'd been here in this country many years.”

At the conclusion of the March 4, 2008, hearing, the IJ issued an oral opinion accompanied by a written summary. The IJ credited Palomino's testimony that Castro gave his place of birth as Puerto Rico. From this, the IJ inferred that Castro had made a false claim to U.S. citizenship.

The IJ further concluded that Castro had falsely claimed to be a U.S. citizen for a “purpose or benefit under ... Federal or State law,” within the meaning of 8 U.S.C. § 1182(a)(6)(C)(ii). He explained his reasoning as follows:

This is the more difficult issue. Counsel claims there is some kind of case law. There has been no brief by respondent's counsel. There has been no specific Board case, other Circuit case, or 3rd Circuit case proffered here today. And, we have as a factual matter, respondent's own testimony here today that he knew the potential consequences because he was going to be applying for legal status in the United States.

Now, I want to make it clear here the respondent indicated that, has already acknowledge[d] that he has no legal status. So, it is clear to this Court that there is a direct benefit here for someone because if you have a crime, you may face some sort of legal consequences. Counsel pointed out that this may alone not have been enough, but it goes to the issue of discretion and he chose, respondent chose not to be candid with his country of designation as the Court understood his testimony here today.

Respondent further testified that his wife had a naturalization application pending and that this would have, may have had a deleterious impact on that for him as well. So there you have a series of benefits. You have the benefit of someone who had no legal status and having an arrest come up. You had someone who was in the process of filing for an adjustment of status, its impact therein is a matter of discretion and you have the wife seeking naturalization and the...