GOMEZ-BELTRAN

Cite as 26 I&N Dec. 765 (BIA 2016) Interim Decision #3865

Matter of Antonio GOMEZ-BELTRAN, Respondent

Decided June 27, 2016

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

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, which

1

Subsequent to filing a brief on appeal, the respondent’s attorney moved to withdraw as

counsel of record. Because no adequate basis has been shown to permit withdrawal of

counsel at this late stage of the appeal, the motion is denied.

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was 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 of

2

We note that the question on the cancellation application regarding the applicant’s

criminal history is broadly worded to require full disclosure of all arrests and convictions.

3

We review the Immigration Judge’s findings of fact, including those relating to

credibility, to determine if they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2016).

We review de novo all questions of law, discretion, and judgment. 8 C.F.R.

§ 1003.1(d)(3)(ii).

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good 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 transcribed

4

The respondent’s false testimony occurred during the period in which he was required

to establish good moral character. In Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA

2005), we held that an application for cancellation of removal under section 240A(b)(1)

of the Act is a continuing application for purposes of evaluating whether an applicant has

established the required 10-year period of good moral character. In this case, the

respondent provided false testimony before the Immigration Judge in June 2012, 2 years

after his application was filed in May 2010, and 4 years prior to our current resolution of

the matter.

In Castillo-Cruz v. Holder, 581 F.3d 1154, 1162 (9th Cir. 2009), the United States

Court of Appeals for the Ninth Circuit, the jurisdiction in which this case arises, cited

Matter of Ortega-Cabrera and applied our approach to determining the period of good

moral character for section 240A(b)(1) cancellation of removal. Moreover, other circuit

courts have expressly deferred to our interpretation under Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Rodriguez-Avalos

v. Holder, 788 F.3d 444, 452−55 (5th Cir. 2015); Duron-Ortiz v. Holder, 698 F.3d 523,

526−28 (7th Cir. 2012).

In Aragon-Salazar v. Holder, 769 F.3d 699, 706 n.4 (9th Cir. 2014), the Ninth Circuit

held that an application for special rule cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act (“NACARA”), Pub. L. No. 105–100, 111

Stat. 2160, 2193 (1997), is not a continuing one for purposes of evaluating good moral

character and that the required period of good moral character refers only to the 7 years

immediately preceding the filing of the application. The court declined to follow

Castillo-Cruz, finding that it arose “in a different context.” Id. We conclude that

Castillo-Cruz continues to be controlling in the context of applications for cancellation of

removal under section 240A(b)(1) of the Act.

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hearings. 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 the

5

The respondent may have been confused by the use of the term “departure” during a

line of questioning concerning his entries and departures. However, in finding that the

respondent gave false testimony, the Immigration Judge did not appear to rely on this

possible inconsistency, and we have not considered it in reviewing his decision.

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DHS. 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 [for recantation] is not available”);

Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973).

When asked why he did not fully disclose his criminal activities, the

respondent stated only that he “did not know.” The Immigration Judge did

not err in rejecting this response as unpersuasive. The respondent’s

6

The respondent was represented by counsel throughout the proceedings, and there

were no indicia of incompetency. See Matter of M-A-M-, 25 I&N Dec. 474, 477 (BIA

2011) (stating that “an alien is presumed to be competent” and that “absent indicia of

mental incompetency, an Immigration Judge is under no obligation to analyze an alien’s

competency”).

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explanation raises a strong inference that he made false statements with the

subjective intent to prevent the Immigration Judge from considering his

criminal record in determining whether he is statutorily eligible for

cancellation of removal and warrants such relief as a matter of discretion.

See Akwasi Agyei v. Holder, 729 F.3d 6, 16 (1st Cir. 2013) (holding that the

petitioner’s false testimony about his sham marriage warranted a finding

that he lacked good moral character because his unexplained “fear” of

telling the truth raised the “strong inference” that he was “afraid” he

would be denied adjustment of status, which “is indistinguishable from a

subjective intent to obtain immigration benefits via fraud”).

In determining whether the evidence is sufficient to establish that an

applicant gave false testimony within the meaning of section 101(f)(6) of

the Act, the trier of fact must conduct a case-by-case assessment. See

Hovsepian, 422 F.3d at 887 (“Whether a person has the subjective intent to

deceive in order to obtain immigration benefits is a question of fact.”); see

also Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Drawing

inferences from direct and circumstantial evidence is a routine and

necessary task of any factfinder. . . . In the immigration context, the

[Immigration Judge] is the factfinder to whom this indispensable work is

delegated.”); accord Matter of D-R-, 25 I&N Dec. at 454. While not every

misrepresentation or omission will be sufficient to constitute false

testimony under section 101(f)(6) of the Act, this is not a close case. See

generally Kungys, 485 U.S. at 781 (stating that the good moral character

bar does not apply to mere “concealments”).

We agree with the Immigration Judge that the respondent actively

sought to mislead the court regarding the extent of his criminal history

when he only admitted his 2009 conviction and denied any others in

responding to clear questions that called for full disclosure. Consequently,

the Immigration Judge did not clearly err in finding that the respondent

made false statements under oath with a “subjective intent to deceive” for

the purpose of influencing the Immigration Judge’s decision regarding his

applications for relief from removal. Id. at 780−81. We therefore conclude

that the Immigration Judge properly held that the respondent is precluded

from establishing good moral character under section 101(f)(6) of the Act

and that he is statutorily ineligible for cancellation of removal under section

240A(b)(1)(B) of the Act and for voluntary departure. 7

7

Since the respondent has not established good moral character, we need not address

the Immigration Judge’s determination that he did not meet his burden to prove the

requisite hardship under section 240A(b)(1)(D) of the Act. See INS v. Bagamasbad, 429

U.S. 24, 25 (1976) (stating that “courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results they reach”).

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Moreover, we agree with the Immigration Judge that the respondent

does not merit a favorable exercise of discretion on his applications for

relief from removal. See section 240(c)(4)(A)(ii) of the Act. Based on our

de novo review of the record, we conclude that the respondent’s equities,

which include his long residence and family ties in the United States, are

outweighed by his significant criminal history and his untruthfulness during

the hearing. See Aragon-Salazar v. Holder, 769 F.3d 699, 706−07 (9th Cir.

2014) (stating that the Immigration Judge can consider an applicant’s lack

of truthfulness during the hearing as part of the discretionary determination

on an application for relief). Accordingly, we conclude that the

Immigration Judge properly denied the respondent’s applications for

cancellation of removal and voluntary departure, and we will dismiss his

appeal.

B. Motion To Remand

The respondent’s motion was filed during the pendency of his appeal, so

it is considered to be a motion to remand. 8 C.F.R. § 1003.2(c)(4) (2016);

see also Matter of L-V-K-, 22 I&N Dec. 976, 978−80 (BIA 1999)

(discussing differences between a motion to reopen and a motion to remand

in the context of an appeal). We conclude that the respondent has not

demonstrated that a remand is warranted based on his newly submitted

evidence and allegations of ineffective assistance of counsel. See Matter of

Coelho, 20 I&N Dec. 464 (BIA 1992); see also Matter of Rajah, 25 I&N

Dec. 127, 138 (BIA 2009) (stating that the requirements for a motion to

remand are essentially the same as those for a motion to reopen).

First, the respondent has not substantially complied with the procedural

requirements of Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988),

aff’d, 857 F.2d 10 (1st Cir. 1988). See Reyes v. Ashcroft, 358 F.3d 592,

597−99 (9th Cir. 2004). Nor has he presented a “clear and obvious case of

ineffective assistance of counsel,” as provided under Ninth Circuit law.

Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000) (“Lozada is

intended to ensure both that an adequate factual basis exists in the record

for an ineffectiveness complaint and that the complaint is a legitimate and

substantial one.”). However, even if there had been substantial compliance,

the respondent has not shown that his first attorney’s performance was

deficient. See Matter of B-B-, 22 I&N Dec. 309, 310−11 (BIA 1998).

Contrary to the respondent’s assertions, prior counsel was aware that the

respondent is the beneficiary of an approved visa petition. But since his

priority date was not current and no visa was immediately available to him,

the respondent was not eligible to adjust his status. Furthermore,

administrative closure would not have been warranted because of the

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remote availability of a visa and the speculative nature of the respondent’s

ability to adjust his status, particularly in light of his false testimony and

criminal history. See Matter of Avetisyan, 25 I&N Dec. 688, 696 (BIA

2012).

In addition, we reject the respondent’s assertion that his prior counsel

was ineffective because he did not discover or disclose the respondent’s

complete criminal history. The respondent admitted that he misrepresented

his criminal history to his first attorney, who stated that the respondent had

only informed him of the 2009 offense. The responsibility for the

respondent’s false testimony, and its consequences, therefore rests on his

own shoulders.

We find no merit to the other arguments the respondent raised in his

motion regarding his ineffective assistance claim. Therefore, because the

respondent has not established that prior counsel’s performance was

deficient or that it adversely affected the outcome of the proceedings, we

find no basis for remanding. See Lianhua Jiang v. Holder, 754 F.3d 733,

741 (9th Cir. 2014) (finding no denial of due process where the alleged

violation did not affect the outcome of the proceedings); Maravilla

Maravilla v. Ashcroft, 381 F.3d 855, 857−58 (9th Cir. 2004) (per curiam)

(stating that prejudice must be shown to prevail on a due process claim

based on ineffective assistance of counsel).

Finally, although the respondent claims that he is now eligible for

additional relief from removal, he has neither submitted an application nor

established prima facie eligibility for any such relief. INS v. Doherty, 502

U.S. 314, 323 (1992) (stating that a motion to reopen is properly denied

when a prima facie case for the relief sought has not been established);

Matter of Coelho, 20 I&N Dec. 464. Accordingly, the respondent’s motion

will be denied.

ORDER: The appeal is dismissed.

FURTHER ORDER: The motion to remand is denied.

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