Valderrama v. Immingration & Naturalization Serv.

• Decision Date: 13 August 2001
• Docket Number: No. 99-71591,99-71591
• Citation: 260 F.3d 1083
• Parties: (9th Cir. 2001) CLARINDA TAVU VALDERRAMA, PETITIONER v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1083

260 F.3d 1083 (9th Cir. 2001)

CLARINDA TAVU VALDERRAMA, PETITIONER v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT

No. 99-71591

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 17, 2001

Filed August 13, 2001

Counsel: Johnson P. Lazaro, San Francisco, California, for the petitioner.

Lyle Jentzer, Washington, D.C. (argued); John M. McAdams, Jr., Washington, D.C. (brief), for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals INS No. A70-551-853

Before: Harry Pregerson, Ferdinand F. Fernandez, and Susan P. Graber, Circuit Judges.

Per Curiam

Petitioner Clarinda Tavu Valderrama ("Valderrama"), a native and citizen of the Philippines who has lived in the United States since 1991, petitions for review of a final order of deportation by the Board of Immigration Appeals ("BIA"). The BIA affirmed the Immigration Judge ("IJ"), who denied Valderrama's application for asylum and withholding of deportation. The BIA found that Valderrama's hearing testimony was not credible and concluded that she had not carried her burden of establishing eligibility for asylum and withholding of deportation pursuant to the Immigration and Naturalization Act ("INA") §§§§ 208(a), 243(h). We have jurisdiction pursuant to 8 U.S.C. §§ 1105a(a),¹ and we deny the petition.

The Attorney General has discretion to grant an alien asylum if the alien is determined to be a "refugee" within the meaning of 8 U.S.C. §§ 1101(a)(42)(A). The applicant bears the initial burden of proof in demonstrating eligibility for asylum. 8 C.F.R. §§ 208.13(a); Ghaly v. INS , 58 F.3d 1425, 1428 (9th Cir. 1995). "Refugee status is established by evidence that an applicant is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Navas v. United States, 217 F.3d 646, 654 (9th Cir. 2000). An alien may establish a well-founded fear of future persecution by proving past persecution or a "good reason" to fear future persecution. Id. at 654-55. An alien's well-founded fear of future persecution must be both subjectively and objectively reasonable. Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998). An alien satisfies the subjective component by credibly testifying that she genuinely fears persecution. Id.

We apply the "substantial evidence test" in our review of the credibility findings underlying the BIA's decision. Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995). The BIA must have "a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Shah v. INS, 220 F.3d 1062, 1067 (9th Cir. 2000) (internal quotation marks and citations omitted). Under this standard of review, we are compelled to uphold the factual findings of the BIA if those findings are supported by " `reasonable, substantial, and probative evidence.' " INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. §§ 1105a(a)(4)).

Substantial evidence supports the BIA's finding that Valderrama's testimony at her deportation hearing was not credible. As the BIA noted, Valderrama's first and second petitions for asylum differed in a material way. In Valderrama's first petition, she stated that she had never been a member of a political group in the Philippines, while in the second petition she claimed that she was persecuted in the Philippines largely because of her membership in an anti-Communist political group. This discrepancy goes to the heart of Valderrama's asylum claim that she was persecuted "on account of" her political opinion. Therefore, we conclude that the BIA's adverse credibility finding is supported by substantial evidence.

Because we hold that substantial evidence supports the BIA's denial of asylum on the basis of its adverse credibility finding, we do not reach the issue whether the record supports the BIA's finding that Valderrama also lacks an objective, well-founded fear of future persecution. Pal v. INS, 204 F.3d 935, 939 (9th Cir. 2000); Berroteran-Melendez v. INS, 955 F.2d 1251, 1257-58 (9th Cir. 1992).

We also reject Valderrama's claim that she is entitled to withholding of deportation. The standard for withholding of deportation is more stringent than the standard for establishing eligibility for asylum. Because Valderrama cannot meet the lower standard to demonstrate eligibility for asylum, she necessarily fails to show that she is entitled to a withholding of deportation. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir. 1995).

At oral argument, Valderrama's counsel asked that we stay the mandate so that Valderrama may move to reopen her deportation proceedings with the BIA to apply for an adjustment of status based on her marriage to a United States citizen. Counsel argued that unless the mandate was stayed, Valderrama probably would be deported before the BIA could consider her motion.

One difficulty with counsel's request is that a motion to reopen these deportation proceedings would be untimely and would have been untimely by the date on which Valderrama filed her opening brief in this court. See 8 C.F.R. §§ 3.2(c)(2) (providing that the BIA will not entertain a motion to reopen deportation proceedings more than ninety days after the final decision).² We believe that it is inappropriate for this court to interfere with the normal processes of the INS and the BIA by delaying issuance of the mandate in the normal course. Doing so would provide a windfall for an alien who happens to appeal to this court, not available to aliens who do not happen to appeal. Accordingly, we decline to stay the mandate.

PETITION DENIED.

PREGERSON, Circuit Judge, concurring in part and dissenting in part:

I agree with the panel that Valderrama's adverse credibility finding is supported by substantial evidence. I write separately to express my view that the mandate should be stayed to allow Valderrama the opportunity to move the BIA to reopen her case so that she may apply for an adjustment of status based on her marriage to a United States citizen. Unless the mandate is stayed, Valderrama will more likely than not be deported before she has the chance to move the BIA to reopen her deportation proceedings.

In her appellate brief, Valderrama states that she married a lawful permanent resident in 1998 who was "soon to become a [United States] citizen" and that she has a child who is a United States citizen. At oral argument, Valderrama stated that her spouse became a United States citizen in March 2001. If Valderrama is in fact the spouse of a United States citizen, she may have a legal basis for filing a motion to reopen her deportation proceedings with the BIA to adjust her status to that of a lawful permanent resident. See INA§§ 245(i), 8 U.S.C. §§ 1255(i) (1994 & Supp. II 1996).¹

Before Valderrama may file a motion to reopen her deportation proceedings with the BIA, however, she must obtain an immediate relative visa and an adjustment of status from the INS District Director for the district in which she resides.² In re H-A-, Interim Dec. 3394 (BIA 1999).

Pursuant to section 5 of the Immigration Marriage Fraud Amendments of 1986 Pub. L. No. 99-639, 100 Stat. 3537, 3543, and the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,³ a marriage entered into by an alien during deportation proceedings is presumptively fraudulent. In re Arthur, 20 I. & N. Dec. 475, 479 (BIA 1992). Because of this presumption, the INS District Director will not approve Valderrama's husband's petition for an immediate relative visa unless it is established

by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien's admission as an immigrant . . . .

INA §§§§ 204(g), 245(e); 8 U.S.C. §§§§ 1154(g), 1255(e)(3).

If the INS District Director determines that Valderrama's marriage is lawful and was entered into in good faith, and the Director approves her husband's petition for an immediate relative visa, then Valderrama may apply to the BIA to reopen her deportation proceedings for the purpose of applying for an adjustment of status. A motion to reopen is based on factual grounds and must be supported by affidavits or other evidentiary materials. 8 C.F.R. §§ 3.2(c)(1). Valderrama must prove to the BIA that the evidence presented in her motion to reopen: (1) is material; (2) was unavailable at the time of the original hearing; and (3) could not have been discovered or presented at the original hearing. Id.

The panel states that Valderrama's request to reopen these deportation proceedings "would be untimely and would have been untimely by the date on which Valderrama filed her opening brief in this court." In support of this conclusion, the panel cites an administrative rule stating that, in general, the BIA will not entertain motions to reopen, which, like Valderrama's, are filed more than ninety days after the BIA has rendered a final decision in a case. See 8 C.F.R. §§ 3.2(c)(2). While the panel correctly states the rule, it overlooks two relevant exceptions. First, the BIA retains the power, at any time, to "reopen or reconsider on its own motion any case in which it has rendered a decision." 8 C.F.R. §§ 3.2(a).

Second, if an applicant is able to obtain an immediate relative visa petition after the expiration of the ninety-day period and the INS joins in the filing of a motion to reopen deportation proceedings, the ninety-day filing requirement does not apply. 8 C.F.R. §§ 3.2(c)(3)(iii).⁴ A recent memorandum from the Office of the General Counsel of the INS provides that INS attorneys "may join in a motion to reopen for consideration of adjustment of status...