Rodriguez-Gutierrez v. I.N.S.
| Citation | 59 F.3d 504 |
| Decision Date | 01 February 1995 |
| Docket Number | No. 94-40108,RODRIGUEZ-GUTIERRE,P,94-40108 |
| Parties | Jose Luisetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Azar-Farr & Ret, P.C., Simon M. Azar-Farr, San Antonio, TX, for petitioner.
Janet Reno, Atty. Gen., Dept. of Justice, Charles E. Pazar, Robert Kendall, Jr., Anthony W. Norwood, Robert L. Bonbough, Dir., Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent.
Richard M. Casillas, D.D., I.N.S., San Antonio, TX, John B.Z. Caplinger, I.N.S. Dist. Dir., New Orleans, for other interested parties.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before REAVLEY, DUHE and PARKER, Circuit Judges.
Jose Luis Rodriguez-Gutierrez was charged with deportability under 8 U.S.C. Sec. 1251(a)(1)(B) (Supp.1994). The Immigration Judge ("IJ") determined that Rodriguez was deportable. The IJ denied Rodriguez's applications for suspension of deportation and adjustment of status, but granted voluntary departure. Rodriguez appealed the denial of suspension of deportation to the Board of Immigration Appeals (the "BIA"). He also moved to reopen deportation proceedings with respect to the adjustment of status application. The BIA dismissed the appeal and denied the motion to reopen. Rodriguez appeals. We reverse and remand for proceedings consistent with this opinion.
Rodriguez was caught with undocumented aliens in his car near the border in 1982. At the time he had legal immigration status in the United States. He gave the INS agent a false name and birthdate, because he did not want them to know his true identity or immigration status. He also allegedly told him that he had recently entered the country by swimming across the river. At his deportation hearing, Rodriguez testified that he had lied to the Immigration officer because he was afraid. He testified that he did not swim across the river, but instead entered legally. The IJ found that this testimony lacked credibility and that he entered the country illegally. The IJ determined that he was deportable. 1
Rodriguez applied for suspension of deportation under 8 U.S.C. Sec. 1254(a)(1) (1970). The IJ found that Rodriguez was not eligible for suspension of deportation because he interrupted his seven years of continuous residency in the United States (a prerequisite for suspension of deportation) by leaving the U.S. on several occasions while his deportation proceedings were pending. On appeal, the BIA upheld the denial of application for suspension, but on different grounds. The BIA called into doubt the IJ's finding regarding continuous residency in light of a Fifth Circuit case, which overruled a BIA case relied on by the IJ in his findings regarding continuous residency. The BIA upheld the IJ's determination, however, because it concluded that the immigrant was not a person of good moral character (another prerequisite for suspension of deportation), because he gave "false testimony" at his deportation hearing.
Rodriguez also applied for an adjustment of status, but the IJ found that he lacked one of the prerequisites for adjustment of status--a current visa application. He moved to reopen the case for adjustment of status at the time of his appeal to the BIA, because his wife had applied for a visa for him before that appeal was addressed. The BIA did not address whether Rodriguez met the requirements for adjustment of status, but instead refused to exercise its discretion to reopen the case to address his request for an adjustment of status.
Rodriguez appeals both the suspension of deportation determination and the BIA's refusal to reopen his case for adjustment of status.
The Attorney General may, in her discretion, suspend deportation and adjust the status
to that of an alien lawfully admitted for permanent residence in the case of an alien who has been found to be deportable and 1) has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of the application for relief; 2) establishes that he is a person of good moral character during that period of time; and 3) is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. 8 U.S.C. Sec. 1254(a)(1).
If an immigrant's absence from the United States was brief, casual and innocent, it may not interrupt an immigrant's continuous physical presence in this country. 8 U.S.C. 1254(b)(2) (Supp.1994). If the departure involved criminal intent, continuous residency is interrupted. Laredo-Miranda v. INS, 555 F.2d 1242, 1245-46 (5th Cir.1977). The IJ found that Rodriguez's departure in 1982 did not break his continuous presence because, even though he was found deportable for having entered without inspection and convicted of transporting aliens, he was not convicted for aiding and abetting an entry, and therefore, lacked the necessary criminal intent to constitute a meaningful interruptive entry. He concluded, however, that subsequent trips to Mexico did constitute interruption, because under Matter of Becerra-Miranda, 12 I. & N. Dec. 358 (BIA 1967), an alien who departed during the pendency of deportation proceedings had interrupted his permanent residence in the United States.
The BIA noted that this conclusion was incorrect in light of subsequent Fifth Circuit case law. We agree. The Fifth Circuit rejected Matter of Becerra-Miranda and held that a more subjective inquiry must be made before an alien's departure can be held to have interrupted his status. Molina v. Sewell, 983 F.2d 676, 679-80 (5th Cir.1993). According to Molina, the IJ must look to the 1) length of time the alien is absent; 2) the purpose of the visit; and 3) whether travel documents were required. Id. at 680. The IJ concluded that, if Matter of Becerra-Miranda's objective test did not bar a finding of continuous presence, Rodriguez's departures would be considered brief, casual and innocent under the subjective test. Indeed, the record shows that each departure was for a very short period of time, one or two days, and travel documents were not required. The purpose of the first visit was a brief visit with family friends; the purpose of the second was to assist a family member in distress; and the purpose of the third was to find witnesses for his deportation hearing.
The BIA did not disturb the IJ's refusal to suspend deportation in this case, because it held that even if Rodriguez met the continuous presence requirement, he did not meet the good moral character requirement for suspension of deportation. Title 8 provides that no person shall be found to be a person of good moral character who, during the time for which good moral character is required to be established is or was "one who has given false testimony for the purpose of obtaining any benefits under this chapter." 8 U.S.C. Sec. 1101(f)(6).
The IJ found that Rodriguez was deportable, because he entered the country illegally. In doing so, the IJ decided that Rodriguez's testimony at his deportation hearing lacked credibility. The BIA concluded that the IJ's determination that Rodriguez's testimony lacked credibility was tantamount to a finding that Rodriguez was not a person of good moral character because he gave false testimony at the hearing.
A finding that testimony lacked credibility does not alone justify the conclusion that false testimony has been given. False testimony means knowingly giving false information with an intent to deceive. A lack of credibility does not necessarily stem from a conclusion that the speaker intends to deceive. As a California district court stated, to assume that "a witness whose testimony is not accepted by the trier of fact is a perjurer and not a person of good moral character ... is not only legally invalid, but is contrary to the basic sense of fairness upon which our legal system is founded."
Acosta v. Landon, 125 F.Supp. 434, 441 (S.D.Cal.1954).
The BIA incorrectly concluded that Rodriguez was not a person of good moral character, because it erroneously held that a finding that testimony lacks credibility is the equivalent to a finding that the witnesses has given false testimony. The IJ discussed the effect of Rodriguez's conviction for transporting aliens on a finding of good moral character and, in doing so, found that Rodriguez did have good moral character. In addition, in granting voluntary departure, the IJ made an implicit finding of good moral character. See 8 U.S.C. Sec. 1254(e) (). This record supports this conclusion.
The status of an alien may be adjusted by the Attorney General, in her discretion, if certain conditions are met. Rodriguez applied for adjustment of status at his deportation hearing. The IJ found that Rodriguez could not be granted an adjustment of status, because he did not meet the requirement that "an immigrant visa [be] immediately available to him at the time the application is filed." After the hearing and before his appeal was decided, Rodriguez filed a motion to reopen with the BIA because his wife had successfully filed a visa petition during that time period. The Board did not find that Rodriguez was not eligible for an adjustment of status, but instead concluded that he did not warrant a favorable exercise of discretion. 2
The BIA found that Rodriguez: 1) entered into the United States without inspection in 1982 despite the fact that he was a lawful permanent resident; 2) admitted that he gave a false name and birth date to...
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