Opinion
No. 09-60118 Summary Calendar.
April 23, 2010.
Daniel M. Kowalski, Austin, TX, for Petitioner.
Trish A. Maskew, Esq., Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A97 700 540.
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
Manuel Noveron-Rodriguez filed a petition for review of the denial of his applications for cancellation of removal and voluntary departure. We lack jurisdiction to review the alternative purely discretionary determination by the Board of Immigration Appeals (BIA) that, even in the absence of a statutory bar, Noveron-Rodriguez failed to show good moral character and, therefore, he was not entitled to cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007).
We have jurisdiction to review whether Noveron-Rodriguez is statutorily precluded from establishing good moral character under 8 U.S.C. § 1101(f)(6) because he gave false testimony to the IJ in order to obtain an immigration benefit. See Gonzalez-Maldonado v. Gonzales, 487 F.3d 975, 977 (5th Cir. 2007). This determination is a question of law that we review de novo. See id. at 976.
Noveron-Rodriguez argues that the BIA's finding that he testified falsely was based on statements in his written application and that, under Beltran-Resendez v. INS, 207 F.3d 284, 287 (5th Cir. 2000), the written statements do not constitute false testimony. This case is distinguishable from Beltran-Resendez because Noveron-Rodriguez testified falsely under oath that the information in Iris cancellation of removal application was correct. See Gonzalez-Maldonado, 487 F.3d at 977 n. 3.
Noveron-Rodriguez argues that the BIA failed to follow its own precedent in Matter of M —, 9 I. N. Dec. 118 (BIA 1960), in which the alien was permitted to make a timely retraction of incorrect information. This case is distinguishable from Matter of M — because Noveron-Rodriguez did not correct his false statements during the same hearing at which they were made; he corrected them approximately seven months later at the next hearing. He corrected some of his statements only after cross-examination by the Department of Homeland Security and the IJ, and he did not provide a sufficient explanation for testifying falsely. Although he acknowledged that he used a false Social Security number to obtain employment, his retraction was not voluntary because he had reason to believe that the IJ would discover his use of a false Social Security number on the tax returns he submitted in support of his application. See Matter of Namio, 14 I. N. Dec. 412, 414 (B.I.A. 1973). For these reasons, he has not shown that the BIA erred in finding that he did not timely and voluntarily retract his false testimony.
PETITION DENIED.