In re Gomez-Beltran

• Decision Date: 27 June 2016
• Docket Number: Interim Decision #3865
• Citation: 26 I&N Dec. 765
• Parties: Matter of Antonio GOMEZ-BELTRAN, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 765

Matter of Antonio GOMEZ-BELTRAN, Respondent

Interim Decision #3865

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

June 27, 2016

An alien cannot establish good moral character under section 101(f)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(6) (2012), if, during the period for which it is required, he or she gives false testimony under oath in proceedings before an Immigration Judge with the subjective intent of obtaining immigration benefits.

FOR RESPONDENT: Marina N. Alexandrovich, Esquire, Tempe, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Brent Landis, Senior Attorney

BEFORE: Board Panel: MALPHRUS and CREPPY, Board Members; GELLER, Temporary Board Member.

MALPHRUS, Board Member:

In a decision dated October 3, 2012, an Immigration Judge found the respondent removable on his own admissions under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an alien who is present in the United States without being admitted or paroled, and denied his applications for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012), and voluntary departure. The respondent has appealed from that decision and has filed a motion to reopen and remand. The Department of Homeland Security ("DHS") opposes both the respondent's appeal and his motion. The appeal will be dismissed, and the motion will be denied.¹

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who last entered the United States on January 1, 2007. On his application for cancellation of removal, the respondent claimed that he had only one conviction, whichwas on January 9, 2009, for driving under the influence. However, when he testified before the Immigration Judge, the respondent at first stated that he had never been convicted of any criminal offense. He only acknowledged the conviction after being reminded by counsel that it was listed on his application. The respondent's attorney then asked if he had "any other arrests or convictions anywhere in the world," to which the respondent clearly answered, "No, sir."

On cross-examination, the respondent initially reaffirmed his claim that he had no other arrests or convictions. After he repeatedly denied any further criminal activity, the DHS confronted him with a series of specific dates and offenses that the respondent had not disclosed on his application.² Even after the DHS questioned the respondent about the first of these offenses, he did not correct his prior misrepresentation or voluntarily reveal the extent of his criminal history, waiting instead until the DHS asked him about each incident. The respondent eventually admitted five additional arrests or convictions that were not included in his application and were not disclosed during the hearing until the DHS confronted him with each one.

The Immigration Judge found that the respondent gave false testimony regarding his criminal history at the hearing and determined that he was not credible. Based on the respondent's false testimony, the Immigration Judge concluded that he lacked good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2012), and was statutorily ineligible for cancellation of removal and voluntary departure. The Immigration Judge also denied his applications for relief in the exercise of discretion.³

II. ANALYSIS

A. Good Moral Character

The respondent has the burden of establishing that he meets all applicable eligibility requirements for cancellation of removal and that he merits a grant of relief in the exercise of discretion. See section 240(c)(4) of the Act, 8 U.S.C. § 1229a(c)(4) (2012); 8 C.F.R. § 1240.8(d) (2016). To qualify for cancellation of removal under section 240A(b)(1) of the Act, the respondent must establish, among other things, that he has been a person ofgood moral character for at least 10 years immediately preceding the date of his application.⁴ Section 240A(b)(1)(B) of the Act.

Section 101(f)(6) of the Act provides that no person can establish good moral character if, during the period for which it is required, he or she "has given false testimony for the purpose of obtaining any benefits" under the Act. The term "testimony" in section 101(f)(6) is limited to oral statements made under oath. Matter of L-D-E-, 8 I&N Dec. 399, 402 (BIA 1959) (holding that false statements in an application do not constitute testimony). The Supreme Court has determined that the statutory bar applies to any oral statements made under oath by a person who has a subjective intent to obtain immigration benefits, regardless of whether the misrepresentation is material. Kungys v. United States, 485 U.S. 759, 780 (1988) (stating that section 101(f)(6) "denominates a person to be of bad moral character on account of having given false testimony if he has told even the most immaterial of lies with the subjective intent of obtaining immigration or naturalization benefits").

Immigration court proceedings are adversarial in nature and are governed by formal rules of procedure, which include requiring the Immigration Judge to take witness testimony under oath at transcribedhearings. Section 240(b)(1) of the Act; Jacinto v. INS, 208 F.3d 725, 732-33 (9th Cir. 2000); 8 C.F.R. §§ 1240.7(b), 1240.9 (2016). False statements made under oath during proceedings before an Immigration Judge may constitute false testimony within the meaning of section 101(f)(6) of the Act. See Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981) ("Testimony means a statement made by a witness under oath for the purpose of establishing proof of a fact to a court or tribunal."), rev'd on other grounds, 464 U.S. 183 (1984); Matter of Barcenas, 19 I&N Dec. 609, 612 (BIA 1988) (finding that an alien's false statements at a deportation hearing rendered him ineligible for voluntary departure); cf. Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir. 2001) (holding that false statements made in an asylum examination are "false testimony"); Bernal v. INS, 154 F.3d 1020, 1023 (9th Cir. 1998) (holding that false statements made under oath in a naturalization interview are "false testimony").

Truthful testimony and disclosures are critical to the effective operation of the immigration court system. In the asylum context, courts have noted that the process depends on the alien's fundamental obligation to tell the truth. Martinez v. Holder, 557 F.3d 1059, 1065 (9th Cir. 2009) (stating that the "asylum process is ultimately an honor system" and that the major check on the system is not the "[Immigration Judge's] scrutiny or the government's fact checkers," but is, instead, "the asylum seeker's belief that he or she will be held to that oath"); Diallo v. Gonzales, 447 F.3d 1274, 1280 (10th Cir. 2006) ("Asylum seekers must be held accountable for the veracity of statements that they swear to under oath."). The same principle applies to applications for cancellation of removal.

In this case, the respondent testified that he had only been convicted of a single offense in 2009, denied any further incidents, and then admitted five additional arrests or convictions when confronted with each one by the DHS during cross-examination. He claims that his testimony was not untruthful because he honestly answered questions regarding specific offenses and dates and that it only appeared inconsistent when he was asked "vague, open-ended questions."⁵

We do not agree. The questions regarding criminal history on the cancellation of removal application and at the hearing were not vague; they were simple and direct. The respondent was asked about his criminal history several times during the hearing and was given ample opportunity to disclose all his arrests and convictions before he was confronted by theDHS. There is no indication that he did not understand the questions.⁶ Cf. United States v. Hovsepian, 422 F.3d 883, 887-88 (9th Cir. 2005) (en banc) (finding no subjective intent to deceive under section 101(f)(6) of the Act where inaccuracies resulted from poor memory, mistake, or vague questioning).

Nor was the interpretation of the proceedings in any way faulty. The respondent made no objection regarding the interpreter at the hearing, and he has made no showing on appeal that the interpreter did not perform competently. See Matter of D-R-, 25 I&N Dec. 445, 461-62 (BIA 2011); Matter of Exilus, 18 I&N Dec. 276, 280-81 (BIA 1982). The respondent claims that the interpreter mistakenly interpreted his date of birth as May 5, instead of May 14, but there is no indication that this discrepancy had any impact on his case. Furthermore, we find no merit to the respondent's suggestion that the DHS may have questioned him about another person's criminal record as a result of the incorrect birth date, because the respondent admitted each arrest or conviction referred to by the DHS. The remaining interpretation errors the respondent has identified were minor and unrelated to his false testimony. See Matter of D-R-, 25 I&N Dec. at 461-62.

Although the respondent eventually answered questions truthfully when confronted with his criminal records, this does not undermine the fact that he made false statements when initially asked about his arrests and convictions. He did not fully and voluntarily disclose his criminal history and only admitted each arrest or conviction when specifically confronted with it by the DHS. See Ramos, 246 F.3d at 1266 (stating that the petitioner's admission to lying did not preclude a finding that she lacked good moral character because "her later honesty . . . does not remove her from the ambit of the statute"). Therefore, the respondent did not voluntarily make a timely recantation of his false testimony. Valadez-Munoz v. Holder, 623 F.3d 1304, 1310 (9th Cir. 2010) (stating that "when a person supposedly recants only when confronted with evidence of his prevarication, the amelioration ...