Opinion
No. C 02-03161 WHA
August 27, 2003
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
In this immigration case, the Immigration and Naturalization Service (INS) found that plaintiff sought to procure admission into the United States by willful misrepresentation of material fact and was therefore inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Plaintiff filed this action for a declaratory judgment stating that the INS's finding was not supported by substantial evidence in the record of the proceedings. Both parties now move for summary judgment. This order enters summary judgment on behalf of defendant.
The Bureau of Citizenship and Immigration Services (BCIS) and interim director David Still have taken over the functions of Charles DeMore, the ENS district director originally identified as the defendant in this action. The INS was abolished as of March 1, 2003, pursuant to the Homeland Security Act of 2002, Pub.L. 107-296, 116 Stat. 2135 (Nov. 28, 2002). The events relevant to this action took place when the INS was still in existence.
STATEMENT
Plaintiff is a Chinese citizen who made his way to the United States by way of South America. He arrived in New York on November 14, 1991, traveling with a passport that had been altered to show his photograph.In New York, the immigration officer learned that plaintiff had an altered passport. Plaintiff explained that he had been persecuted in China and had come to the United States "for freedom." He was detained and paroled into the United States and given the opportunity to apply for asylum. Plaintiff filed in 1992 an application for asylum. He since moved to California and married an American citizen.
In July 1997, based on the marriage, plaintiff applied under 8 U.S.C. § 1255 for an adjustment of status to lawful permanent resident. Under that provision, the status of an alien who was inspected and paroled into the United States:
may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.8 U.S.C. § 1255(a).
In August 1998, in response to a request from the INS, plaintiff filed an application for a waiver of inadmissibility under 8 U.S.C. § 1182(i). In January 2000, the INS denied Plaintiff's request for a waiver. The decision explained that plaintiff was found inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which provides that: "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible" (Olsen Exh. F). The Attorney General had the discretion, under Section 1182(i), to waive the application of that provision if refusal to admit plaintiff to the United States would result in extreme hardship to his citizen spouse. According to the INS, the prospect of extreme hardship was not shown.
Plaintiff appealed this decision. The Office of Administrative Appeals denied the appeal in August 2000, noting that no additional documentation had been received into the record. Plaintiff filed a motion to reopen and reconsider on the ground that additional documentation had been timely submitted but was not considered.
In February 2001, the Office of Administrative Appeals, having considered the additional documentation, issued a ruling. The ruling found plaintiff inadmissible under Section 1182(a)(6)(C)(i), concluding that the "record clearly indicates that the applicant sought to procure admission into the United States by presenting a photo-substituted and altered passport in an assumed name when applying for admission into the United States" (Olsen Exh. I at 4-5) (emphasis omitted). The ruling further concluded that plaintiff failed to show that "a qualifying relative would suffer extreme hardship over and above the normal economic and social disruption involved in the removal of a family member" ( id. at 5-6).
Relying on this ruling, the ENS denied in October 2002 Plaintiff's application for status as a lawful permanent resident. Plaintiff filed this declaratory-judgment action, in which both parties now move for summary judgment.
Subject-matter jurisdiction exists under 28 U.S.C. § 1331. While 8 U.S.C. § 1252 restricts the jurisdiction of district courts to review orders of removal, plaintiff is not in removal proceedings. The INS order here at issue is therefore subject to review by this Court. See Abboud v. INS, 140 F.3d 843, 846 (9th Cir. 1998). No bar to jurisdiction is presented by 8 U.S.C. § 1252(a)(2)(B)(i) because the challenged determination was not discretionary. See Montero-Martinez v. Ashcroft, 211 F.3d 1137, 1142 (9th Cir. 2002).
ANALYSIS
A finding of fact is reviewed for substantial evidence. Prasad v. INS, 101 F.3d 614, 616 (9th Cir. 1996). Because a "judicial determination of whether a finding of fact is supported by substantial evidence presents only an issue of law," it is "subject to disposition by summary judgment." McCall v. Andrus, 628 F.2d 1185, 1190 (9th Cir. 1980) (quoting Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir. 1964)). `"Substantial evidence' means more than a mere scintilla but less than a preponderance." Baria v. Reno, 94 F.3d 1335, 1340 (9th Cir. 1996). If is "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Ibid.Before reviewing the record, a consideration of the law concerning the application of Section 1182(a)(6)(C)(i) is in order. Plaintiff points to decisions of the Board of Immigration Appeals stating that an alien is not excludable for seeking entry by fraud or willful misrepresentation of a material fact "where there is no evidence that the alien presented or intended to present fraudulent documents or documents containing material misrepresentations to an authorized official of the United States Government in an attempt to enter on those documents." In re Y-G, 20 I. N. Dec. 794, 797 (B.I.A. 1994); In re D-L A-M, 20 I. N. Dec.409, 412 (B.I.A. 1991).
In Y-G-, the report of the immigration inspector stated that the applicant admitted his true name and that "the documents that he presented as his own were in fact obtained illegally and made to fit his likeness in an effort to defraud the U.S. government." 201. N. Dec. at 797. Conceding that he had documents bearing another's name, the applicant there "testified that when he came to the United States, he did not lie, but instead gave his real name, stated that the documents he possessed were not his own, and gave the address of family members who would help him." Ibid. The B.I.A. concluded that the applicant was not excludable as an alien who seeks or has sought to procure entry into the United States by fraud or the willful misrepresentation of a material fact. Ibid.
On similar facts, the applicants in D-L- A-M- were also adjudged not excludable under that provision. In that case, the evidence "show[ed] that the applicants purchased a fraudulent Spanish passport bearing a nonimmigrant visa for the United States," and that upon arrival in Miami, they "surrendered the false document to United States immigration officials, immediately revealed their true identity, and asked to apply for asylum." 201. N. Dec. at 412-13.
With this in mind, the evidence in the instant case is considered. Four pieces of evidence are at issue: the report of the inspecting immigration officer dated November 14, 1991; Plaintiff's affidavit, dated March 13, 1992, submitted in support of a motion to change venue and for asylum; a later declaration by plaintiff, dated April 17, 2000, submitted in conjunction with his application for a waiver of inadmissibility; and Plaintiff's July 1997 application for adjustment of status. A review of these materials shows that substantial evidence supports the INS's finding.
The inspecting officer's report, dated November 14, 1991, stated (Olsen Exh. B):
Subject entered this date via EU 52 presenting photosubstituted and altered Chinese passport #M3282790. Subject claimed that he has been persecuted in China and that he is coming to the U.S. for "freedom." Subject is therefore being deferred to your port for political asylum claim and has been issued 1-589 packet.
The report plainly stated that plaintiff presented a photosubstituted and altered passport to an immigration officer. It makes no mention of any facts indicating that plaintiff volunteered to the officer that the passport had been altered, as did the applicants in Y-G- and in D-L- A-M-.
Also part of the record is Plaintiff's March 1992 affidavit, which was submitted in support of a motion to change venue and for asylum. There, plaintiff stated (Olsen Exh. K ¶¶ 17-18):
I paid a smuggler an amount of about $7,000.00 for a phony passport issued by the Embassy of Republic of China and a nonimmigrant visa from American Embassy in Lima, Peru with my relatives' assistance and my own savings.
I arrived [at] New York Airport on November 14, 1991 and my true identity was discovered by an Immigration Officer. I was detained and later paroled in until December 3, 1991. I was informed that I was to appear for a hearing and to complete an asylum request which was available to all Chinese Nationals after the June 4 [Tiananmen Square] incident.
The admission "my true identity was discovered by an Immigration Officer" further supports the finding that plaintiff presented or intended to present the altered passport to the officer in an effort to gain entry into the United States and was therefore inadmissible under Section 1182(a)(6)(C)(i).
Plaintiff's April 2000 declaration, submitted in conjunction with his application for a waiver of inadmissibility, stated that it was a flight attendant who learned that his passport was altered, and the flight attendant therefore took plaintiff to the immigration officer directly (Olsen Exh. H):
It is true that when I got on the airplane, I had a passport that did not belong to me. It was changed to show my picture. However, I never intended to use it to actually try to enter the United States. Instead, I planned to apply for asylum as soon as I landed in New York. I used the passport only to get on the airplane.
As it happened, the flight attendant on my airplane learned somehow that I had a false passport. So when our plane landed in New York, she took me directly to the U.S. immigration officer. At that time, I told the officer the truth. I never tried to use my passport to enter the country. Instead, I applied for asylum as soon as I was permitted to do so.
Relying on this declaration, plaintiff argues that the flight attendant discovered his passport was altered and turned him in to the immigration authorities before plaintiff even had the opportunity either to try to gain entry with the document or to tell the truth independently. Even if that is so, the fact that plaintiff was caught carrying an altered passport, intact, while on the plane constitutes "evidence that the alien presented or intended to present fraudulent documents or documents containing material misrepresentations to an authorized official of the United States Government in an attempt to enter on those documents." Y-G-, 20 I. N. Dec. at 797; D-L- A-M-, 20 I. N. Dec. at 412 (emphasis added); see also 8 U.S.C. § 1182(a)(6)(C)(i) ("Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation or admission into the United States or other benefit provided under this Act is inadmissible.") (emphasis added).
Finally, the record contains Plaintiff's July 1997 application for adjustment of status. That application included the following question, identified as question 10 in part 3 (Olsen Exh. D): "Are you under a final order of civil penalty for violating section 274C of the Immigration Act for use of fraudulent documents, or have you, by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the U.S., or any other immigration benefit?" In response, plaintiff marked the "no" box. This answer, however, was later changed. The form indicates that an official interviewed plaintiff and made several changes to the form. The "yes" box corresponding to question 10 was thus marked and circled and the handwritten notation "used fraud PP to entry US" was added beneath the text of the question. The form contained the signatures of plaintiff and the officer, indicating that the changes were made based on sworn testimony. This evidence too supports the INS's finding.
Plaintiff attempted to explain away this admission in the April 2000 declaration. There, plaintiff stated (Olsen Exh. H):
It is also true that in my interview for permanent residence, I applied for a waiver which makes it look like I admitted trying to enter the country by misrepresentation. But my lawyer at the time did not realize that I had not lied about anything when I arrived in New York. My new lawyer, Mr. Ungar, has now explained to me for the first time that if I did not lie about anything at that time, I should not have to apply for a waiver at all.
This convenient statement does not alter the fact that he was caught red-handed with intact, false papers on board the plane to New York. The original admission on the form is consistent with the conduct on the plane. Furthermore, the use of a later sworn statement to contradict an earlier sworn statement raises concerns as to credibility. In sum, the presence of this declaration in the record does not invalidate the INS's finding. See McCall, 628 F.2d at 1189 (summary judgment is appropriate in an action seeking review of an administrative decision even when there is conflicting evidence).
Considering the entirety of the record, this order holds that the INS's finding that plaintiff was inadmissible under Section 1182(a)(6)(C)(i) was supported by substantial evidence in the record. Defendant is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED, and Plaintiff's cross-motion for summary judgment is DENIED. The Clerk shall close the file.
IT IS SO ORDERED.