Diaz-Perez v. Holder
| Decision Date | 02 May 2014 |
| Docket Number | No. 13–1651.,13–1651. |
| Citation | 750 F.3d 961 |
| Parties | Leoncio DIAZ–PEREZ, Petitioner. v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Herbert Igbanugo, Dyan Williams, Minneapolis, MN, for Petitioner.
Rosanne Perry, Washington, DC, for Respondent.
Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
Leoncio Diaz–Perez petitions for review of a final order of removal entered by the Board of Immigration Appeals (BIA). Having appellate jurisdiction under 8 U.S.C. § 1252, we deny the petition.
Diaz–Perez, a native and citizen of Mexico, last entered the United States at or near Brownsville, Texas, on May 1, 2004. On December 28, 2008, according to Border Patrol Agent Benjamin C. Lotvedt, Diaz–Perez was involved in a car accident west of Mandan, North Dakota. Agent Lotvedt reported that when Diaz–Perez could only produce a Mexican identification card, the responding officer contacted the U.S. Department of Homeland Security (DHS) to assist in identifying Diaz–Perez. Diaz–Perez admitted he entered the U.S. illegally, and DHS took him into custody for processing. On December 29, 2008, Agent Lotvedt interviewed Diaz–Perez about his entry into the U.S., documenting the interview on a Record of Deportable/Inadmissible Alien (I–213). Agent Lotvedt recorded that Diaz–Perez reported he “entered afoot near Brownsville, Texas,” before traveling successively to Alabama, Nebraska, and North Dakota to work construction.
DHS initiated removal proceedings, charging Diaz–Perez was removable for being (1) “an alien present in the United States without being admitted or paroled,” 8 U.S.C. § 1182(a)(6)(A)(i), and (2) an immigrant “not in possession of a valid, unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document,” id. § 1182(a)(7)(A)(i). Diaz–Perez contested the first charge, arguing he was inspected and admitted to the U.S. and thus eligible for adjustment of status based on his marriage to a U.S. citizen.
In proceedings before an immigration judge (IJ), Diaz–Perez admitted all of the facts recorded in the I–213 save one—Diaz-Perez denied telling Agent Lotvedt that he entered at Brownsville afoot. Contradicting the I–213 narrative, Diaz–Perez testified he told Agent Lotvedt that he entered the U.S. by car. Diaz–Perez maintained he had presented himself for inspection and admission when he entered the U.S. in 2004 as a passenger in the back seat of a red Ford Mustang driven by his mother-in-law, Virginia Williams, and with family friend Alicia West riding as a passenger in the front seat. Diaz–Perez testified an immigration officer at the border checkpoint asked only Williams if she was a U.S. citizen, which she confirmed. By Diaz–Perez's account, the agent did not ask Diaz–Perez or West any questions and did not ask for any documentation before waving the trio through. Admitting he did not have a visa or border-crossing card when he entered the U.S., Diaz–Perez testified Williams and West were aware he was entering the U.S. illegally before they crossed the border, but wanted Diaz–Perez to be with his children.
Williams testified for Diaz–Perez, but recalled some of the key details of the alleged border crossing differently. Williams testified West—not Williams—drove the Mustang across the U.S. border to pick up Diaz–Perez and then drove back to the U.S. border. Williams further testified the immigration officer asked both West and Williams if they were U.S. citizens, to which each answered yes. Williams also testified she did not know Diaz–Perez “was not legal” until several years after they crossed the border.
The IJ considered those “discrepancies and contradictions in the evidence” to be significant. The IJ found Williams's “testimony not credible” based, in part, on a discrepancy between the time Williams testified it took to travel to Mexico from Alabama and the time she testified it took to return to Alabama. The IJ found “implausible” Williams's claim that she and West slept in the Mustang in fast-food restaurant parking lots for six or more hours per night on the way to and from Mexico, despite Williams being on disability, suffering from diabetes, and taking medication along the way.
The IJ also found incredible Diaz–Perez's testimony that he told Agent Lotvedt that he entered the U.S. in 2004 by car, rather than afoot. The IJ found it “difficult to conceive any circumstances where all of the information contained in an I–213 is correct but for the one piece of information crucial to [Diaz–Perez]'s eligibility for relief in the United States.” On the contrary, the IJ found “the I–213 to be accurate and credible and totally contradictory to [Diaz–Perez]'s testimony.” The IJ concluded Diaz–Perez failed to prove by clear and convincing evidence that he was “lawfully present in the United States pursuant to a prior admission.” 8 U.S.C. § 1229a(c)(2)(B); see also id. § 1361 (). On September 1, 2011, the IJ sustained both charges of removability and granted voluntary departure.
Diaz–Perez appealed to the BIA, arguing he and Williams provided credible testimony establishing he entered the U.S. by car and was inspected and admitted at Brownsville in May 2004. The BIA dismissed the appeal, concluding the IJ did not clearly err in finding Diaz–Perez and Williams were not credible. Recounting the evidence the IJ emphasized and noting the reliability of the I–213, the BIA agreed with the IJ that Diaz–Perez's testimony “that he entered the United States by car through the port of entry, and that he was waved through while a passenger in a car with Virginia Williams and Alicia West” was “not credible, and that the I–213 [was] accurate and credible, and in direct conflict with [Diaz–Perez]'s testimony as to his manner of entry into the United States.”
The BIA concluded, “Based on the discrepancies reflected in the testimony of [Diaz–Perez], the testimony of his witness, and the evidence of record, the arguments on appeal do not persuade us that the [IJ]'s adverse credibility finding was clearly erroneous.” Because “the evidence of record support[ed] the finding that [Diaz–Perez] [wa]s not eligible for adjustment of status based on the manner of his entry into the United States,” the BIA dismissed the appeal and ordered voluntary departure. Diaz–Perez petitions for review.
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