E. Estrada, on brief for petitioner.
M. Murphy, Trial Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Keith I. McManus, Senior Litigation Counsel, on
brief for respondent.
Torruella, Thompson, and Barron, Circuit Judges.
FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Jhonatan Acosta (" Acosta" ) petitions this court
to review a decision of the Board of Immigration Appeals
(" BIA" ) affirming an Immigration Judge's
(" IJ" ) decision that Acosta is removable as
" [a]n alien present in the United States without being
admitted or paroled" under Immigration and Nationality
Act (" INA" ) § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i). He contends that the BIA and IJ
erred in their determinations that his testimony before the
IJ was not credible. In addition, he asserts that the BIA
erred by summarily affirming the IJ's decision to give no
weight to his favorable polygraph test. For the reasons that
follow, we deny the petition.
Factual and Procedural Background
native and citizen of Colombia, Acosta is twenty-seven years
old and currently resides in Boston, Massachusetts. He is
married to a United States citizen and is a stepfather to her
two children. In June 2010, Acosta sought to register
permanent residence or adjust status before the United States
Citizenship and Immigration Services (" USCIS" ).
In support of his application, he submitted evidence that he
was legally admitted to the United States in Miami, Florida,
on August 27, 2001, when he was thirteen years old. This
evidence included his visa and Form I-94.
August 2011, USCIS denied his application on the basis that
his visa and Form I-94 were fraudulent. That same day, Acosta
was placed in removal proceedings upon receiving a Notice to
Appear (" NTA" ) from the Department of Homeland
Security (" DHS" ) as an alien " present in
the United States without being admitted or paroled."
Before the IJ, Acosta argued that he need not show that his
documents are authentic to prove that he was admitted to the
United States. Rather, the BIA has interpreted "
admitted" to include situations where " an alien .
. . physically presents [himself] for questioning and makes
no knowing false claim to citizenship . . . even though [he]
volunteers no information and is asked no questions by the
immigration authorities."  Matter of
Quilantan, 25 I. & N. Dec. 285, 293 (BIA 2010).
Emphasizing his young age at the time of his alleged
admission in 2001, Acosta asserts that he was unaware that
his documents were fraudulent.
appeared twice for hearings before the IJ, in July and
October 2012. To support his argument that he was admitted to
the United States, Acosta submitted affidavits from himself,
his father, and his uncle, and Acosta testified during the
July hearing. At the hearing, he explained that he had
entered the United States, at the age of thirteen, on August
27, 2001. According to Acosta's testimony, his uncle and
primary caretaker at the time, Julio Cé sar
Acosta-Salinas (" Julio Cé sar" ), had
obtained a visa and passport for him. Julio Cé sar
later escorted Acosta to the airport in Medellí n,
Colombia. There, Julio Cé sar met with a man
identified in Julio Cé sar's affidavit as the
travel agent responsible for providing Acosta's travel
documents. Acosta testified that he then bid
farewell to his uncle and met a female airline attendant who
accompanied him onto the plane. During this process, he at no
point had possession of his passport; rather, the airline
attendant was responsible for his travel documents. Julio
Cé sar's affidavit largely corroborates this
stated that he landed in Miami that afternoon. Upon arrival,
the airline attendant escorted him to an immigration official
and gave the official Acosta's documents for inspection.
Acosta was not questioned by the official, who communicated
with the airline attendant instead. Another airline attendant
then accompanied Acosta on a flight from Miami to Boston,
Massachusetts. Acosta stated that, after he landed in
Boston, his father, Omar Alberto Acosta-Salinas ("
Acosta, Sr." ), who was residing in Massachusetts at the
time, greeted him at the airport. Acosta testified that the
flight attendant held his travel documents on the second
flight and gave these papers to his father upon their
arrival. Acosta, Sr.'s affidavit is consistent with this
avers that he has not left the United States since his
arrival in 2001. Acosta testified that he first learned that
his travel documentation was fraudulent when he met with
USCIS to discuss his application for permanent residence.
Following the hearing before the IJ, Acosta submitted a
supplemental memorandum indicating that he took a favorable
polygraph examination that corroborated his account of being
inspected and admitted to the United States in Miami in
The Government's Evidence
Government sought to show that Acosta was not admitted to the
United States in 2001 through the testimony of two expert
witnesses, Robert Murray, an Enforcement Officer with United
States Customs and ...