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Acosta v. Lynch

United States Court of Appeals, First Circuit

April 22, 2016

JHONATAN ACOSTA, Petitioner,
v.
LORETTA E. LYNCHnb, [*] ATTORNEY GENERAL OF THE UNITED STATES, Respondent

          Carlos E. Estrada, on brief for petitioner.

         Lindsay 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.

         Before Torruella, Thompson, and Barron, Circuit Judges.

          OPINION

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

         TORRUELLA, Circuit Judge.

         Petitioner 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.

         I. Factual and Procedural Background

         A 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.[1]

         In 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." [2] 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.

         A. Acosta's Evidence

         Acosta 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.[3] 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 testimony.

         Acosta 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.[4] 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 testimony.

         Acosta 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 August 2001.

         B. The Government's Evidence

         The 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 ...


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