Ruiz-Del-Cid v. Holder

• Decision Date: 29 August 2014
• Docket Number: No. 13–3663.,13–3663.
• Citation: 765 F.3d 635
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Mario E. RUIZ–DEL–CID, Petitioner, v. Eric HOLDER, Jr., Attorney General, Respondent.

765 F.3d 635

Mario E. RUIZ–DEL–CID, Petitioner,

v.Eric HOLDER, Jr., Attorney General, Respondent.

No. 13–3663.

United States Court of Appeals,Sixth Circuit.

Aug. 29, 2014.

ON BRIEF:Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for Petitioner. Lindsay M. Murphy, United States Department of Justice, Washington, D.C., for Respondent.

Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

STRANCH, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. CLAY, J. (pp. 642–44), delivered a separate dissenting opinion.

OPINION

STRANCH, Circuit Judge.

We like to think that Poor Richard was right about honesty. See Farrington v. State of Tennessee, 95 U.S. 679, 682, 24 L.Ed. 558 (1877) ( “The trite old aphorism that ‘honesty is the best policy,’ is true alike of individuals and communities. It is vital to the highest welfare.”). Unfortunately, it seems, some interpretations of our immigration laws encourage dishonesty and punish those who do not take the hint. This can be true for the asylum seeker who has uttered a falsehood in order to be allowed to live or work in this country—admitting the falsehood can make him ineligible for cancellation of removal because he cannot establish “good moral character.” But not always—because the law also recognizes the doctrine of retraction. A lie may “stand[ ] on one leg, truth on two.” Benjamin Franklin, Poor Richard's Almanack, ¶ 21 (U.S.C. Publ'g Co.1914) (1735). The doctrine of retraction preserves the balancing grace of honesty by acknowledging that timely retraction of the lie lifts the bar of ineligibility and provides the opportunity to establish qualification for cancellation of removal. Here, we address a decision by the Board of Immigration Appeals that, if upheld, would disturb that delicate balance.

Mario Ederrilso Ruiz–Del–Cid filed an application for asylum in 1993 and was interviewed by an asylum officer in 2007. After the asylum officer denied his application, the Department of Homeland Security initiated removal proceedings against Ruiz and his wife, who was also in the country illegally. The couple applied to cancel their impending removal. The Department of Homeland Security contested their application and, in 2011, they appeared before an Immigration Judge.

Upon taking the stand, on direct examination by his own lawyer, Ruiz voluntarily confessed that his asylum application contained an untrue statement and that he repeated the lie at his 2007 asylum interview. He testified that a notary public had written his 1993 application for him because Ruiz could not read or write English at the time. Ruiz learned only after he submitted the application that the notary had written that Ruiz had been threatened by guerillas in Guatemala. In fact he had not.

Near the end of the hearing, the immigration judge asked, “[W]hy did you tell that to the Asylum Officer?” Ruiz replied:

Perhaps because I didn't have the advice of an attorney and I made a comment with the same people, with the same people who have the same case as mine. And they told me you have to sustain what you said in the application because if you don't, you are going to be, your work permit is going to be revoked and you are going to be deported. And to tell you the truth, from my working permits depends my life hood and my family's life hood. I to tell the truth, I have this deep inside of me in my heart that I swear over the Bible to tell the truth and I didn't.

A.R. 183. Ruiz's lawyer explained why he had recanted:

Once [Ruiz] advised me that the information was not correct, we came to a decision that obviously if it's not correct, we cannot go forward with it even if it's going to hurt him, we can't go forward with it. And in fact, we have to actually withdraw it and let the Judge know why it has been withdrawn. It's not an easy choice to make. Obviously the lead respondent is and was very concerned about that because he knows that he made a mistake in April of 2007 [at the interview] as well as in June of 1993 [on his application].

A.R. 280. No government action preceded the retraction and the government's lawyer told the immigration judge, “I really was not expecting this.” A.R. 263.

The government's surprise was understandable: Mr. Ruiz had just voluntarily (and perhaps fatally) harmed his case for cancellation of removal. The government may only cancel removal if the applicant “has been a person of good moral character” during his time in the United States. 8 U.S.C. § 1229b(b)(1)(B). The problem for Ruiz is that “[n]o person shall be regarded as, or found to be, a person of good moral character,” 8 U.S.C. § 1101(f), if he “has given false testimony for the purpose of obtaining any benefits under this chapter,” including asylum, § 1101(f)(6). Mr. Ruiz's statements during his 2007 interview constitute “false testimony” for the purposes of section 1101(f). See Medina v. Gonzales, 404 F.3d 628, 635–37 (2d Cir.2005); Matter of M-, 9 I. & N. Dec. 118, 119 (BIA 1960); In re R–S–J, 22 I. & N. Dec. 863, 865 (BIA 1999).

There is a longstanding exception to this rule, however: the doctrine of retraction. “[W]here an alien in an immigration proceeding testifies falsely under oath as to a material fact but voluntarily and without prior exposure of his false testimony comes forward and corrects his testimony,perjury has not been committed and the charge based thereon is not sustained.” Matter of M-, 9 I. & N. Dec. at 119; see also Matter of Namio, 14 I. & N. Dec. 412, 414 (BIA 1973). The few published decisions of the Board of Immigration Appeals that address the doctrine in the context of the Immigration and Nationality Act explain that a retraction must be “voluntary” and “timely” (which the decisions also characterize as “without delay”). See Matter of M-, 9 I. & N. Dec. at 119; Matter of Namio, 14 I. & N. Dec. at 414.

The immigration judge in this case did not consider whether Ruiz had timely retracted his prior testimony. Instead, the judge found a “clear violation” of Section 101(f)(6). Although the judge believed that Ruiz had shown an honest remorse for his earlier false testimony, he held that the current remorse did not purge Ruiz from his prior false testimony. Accordingly, the judge concluded, Ruiz was “statutorily barred” from being determined to be a person of good moral character.

Ruiz appealed the ruling to the BIA, arguing that his retraction had been both voluntarily and timely. Stating that “recantation must be timely and without delay,” the BIA, in a single-member decision, concluded that the retraction exception did not apply because it was not timely. “The respondent may have been able to benefit from this doctrine had he recanted his statements in his asylum application at the time of his asylum interview, but here he waited until he was called to appear in Immigration Court seeking other relief,” the BIA wrote. “The respondent delayed retraction of his false testimony before the asylum officer for 4 years” and may not benefit from the doctrine of recantation.

We review the BIA's resolution of a question of law de novo but, pursuant to the rule of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), will defer to its construction of an ambiguous statutory provision within its jurisdiction unless that construction is “arbitrary, capricious, or manifestly contrary to the statute.” Sad v. INS, 246 F.3d 811, 815 (6th Cir.2001) (quoting Chevron, 467 U.S. at 844, 104 S.Ct. 2778). We afford less deference to constructions promulgated in the BIA's nonprecedential single-member decisions. See, e.g., Martinez v. Holder, 740 F.3d 902, 909–10 (4th Cir.2014); see also Japarkulova v. Holder, 615 F.3d 696, 700–01 (6th Cir.2010). Although still entitled to respect, “[t]he weight of such a judgment” in an unpublished single-member decision “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with early and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The BIA's factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4); Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). If the BIA has failed to adequately explain its reasoning, “[t]he reviewing court should not attempt itself to make up for such deficiencies: ‘We may not supply a reasoned basis for the agency's action that the agency itself has not given.’ ” Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947)).

The facts are not in dispute. The question here is whether Ruiz's voluntary confession qualifies under the doctrine of retraction—a question which turns on whether he timely retracted his false testimony.

The BIA has defined timeliness as a question of whether the petitioner retracted her false statement before its falsity had been or was about to be exposed. See, e.g., Matter of M-, 9 I. & N. Dec. at 119 (alien's retraction made “without delay” if he “voluntarily and without prior exposure comes forward and corrects his testimony”); In re: Irene Chelagat Cheruiyot, A95 204 157, 2007 WL 2074420, at *2 (BIA June 15, 2007); In re: Francisco Saez–Sosa, A71 899 535, 2007 WL 1125707, at *1 (BIA Feb. 23, 2007); In re: Jose Valadez–Munoz, A75 219 367, 2006 WL 1558823 at *2 (BIA Apr. 12, 2006); see also In re: Serafin Alejandro Mendoza Lara, A079 376 389, 2010 WL 4971051, at *1 (BIA May 20, 2010) (apparently equating timeliness with retraction “without prior exposure of ... false testimony”); Costa v. Att'y Gen. of the U.S., 257 Fed.Appx. 543, 546 (3d Cir.2007) (retraction made almost two years later permissible “b...