Ali v. Holder (BIA AAO) (2nd Cir 8 10-12) combined cases
http://www.ca2.uscourts.gov/decisions/isysquery/ceac8399-b84a-4410-a92e-38702bbe6f76/1/ doc/09-5315_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ceac8399-b84a-4410- a92e-38702bbe6f76/1/hilite/ 09-5315 Ali v. Holder BIA USCIS AAO A073 646 265 A093 081 239 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDERRULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDERFILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OFAPPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDERIN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR ANELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARYORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 10th day of August, two thousand twelve. PRESENT: JON O. NEWMAN, ROBERT A. KATZMANN, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ MD ARSHED ALI, AKA MOHAMMAD ARSHED ALI, Petitioner, v. 09-5315 NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________ FOR PETITIONER: Thomas V. Massucci, New York, N.Y. FOR RESPONDENT: Tony West, Assistant Attorney General; Terri J. Scadron, Assistant Director; Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of aBoard of Immigration Appeals (“BIA”) decision, it is herebyORDERED, ADJUDGED, AND DECREED that the petition for reviewis DENIED. Petitioner Mohammad Arshed Ali, a native and citizen ofBangladesh, seeks review of a December 8, 2009 order of theBIA ordering Ali’s removal and, in that review, see 8 U.S.C.§ 1255a(f)(4)(A), seeks review of an April 28, 2009 order ofthe Administrative Appeals Office (“AAO”) of the UnitedStates Citizenship and Immigration Services (“USCIS”)denying his application for status as a permanent residentunder the Legal Immigration Family Equity Act of 2000 (“LIFEAct”), Pub. L. 106-553, 114 Stat. 2762 (2002). In re MDArshed Ali, No. A073 646 265 (B.I.A. Dec. 8, 2009); In reMohammad Arshed Ali, No. A093 081 239 (USCIS AAO Apr. 28,2009). We assume the parties’ familiarity with theunderlying facts and procedural history in this case. The AAO denied Ali’s application for legalization underthe LIFE Act because it found that his 1994 asylumapplication contradicted his claim that he entered theUnited States in 1981. Ali argues that this was errorbecause the facts alleged in his asylum application were 2
false. Ali further argues that the AAO failed to considerthe fact that he applied for legalization under the LIFE Actbefore he applied for asylum. To establish his eligibility for legalization under theLIFE Act, Ali was required to establish that he entered theUnited States before January 1, 1982. See 8 U.S.C. §1255a(a)(2)(A). “[T]he findings of fact and determinationscontained in [the administrative] record shall be conclusiveunless the applicant can establish abuse of discretion orthat the findings are directly contrary to clear andconvincing facts contained in the record considered as awhole.” 8 U.S.C. § 1255a(f)(4)(B). In this case, the AAO did not err in concluding thatthe documents that Ali submitted to the AAO to show that heentered the United States in 1981 were contradicted by hisasylum application, which stated that he left Bangladesh in1989 and described Ali’s activities in Bangladesh throughoutthe 1980s. The AAO additionally did not err in concludingthat Ali’s admission that his asylum application was falsecalled into question the reliability of the documents hesubmitted in support of his legalization application. Cf.Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 3
2007) (relying on the doctrine falsus in uno, falsus inomnibus to conclude that the BIA does not abuse itsdiscretion in declining to credit documentary evidencesubmitted by an alien who was found not credible by an IJ).Contrary to Ali’s claim that the AAO decision fails toaccord collateral estoppel effect to the IJ’s decision thatAli’s statements were false, the falsity of his previousasylum application does not establish the truth of hislegalization claim. Additionally, while Ali argues that the AAO failed toconsider the fact that he first applied for legalizationbefore he filed his application for asylum, the record doesnot support this claim. Cf. Xiao Ji Chen v. U.S. Dep’t ofJustice, 471 F.3d 315, 338 n. 17 (2d Cir. 2006) (presumingthat an administrative adjudicator has taken into accountevidence in the record unless the record compellinglysuggests otherwise). Accordingly, the AAO did not err in concluding that Alifailed to prove that he entered the United States beforeJanuary 1, 1982, and therefore that he did not establish hiseligibility for legalization under the LIFE Act. See 8U.S.C. § 1255a(f)(4)(B). For this reason, the petition for 4
review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot. FOR THE COURT: Catherine O’Hagan Wolfe, ClerkFalsus in Uno, Falsus in Omnibus is a legal maxim which means false in one thing, false ineverything. A Roman legal principle indicating that a witness who willfully falsifies one matteris not credible on any matter. The underlying motive for attorneys to impeach opposingwitnesses in court: the principle discredits the rest of their testimony if it is withoutcorroboration... Sir/Madame, were you lying then or are you lying now? 5
U.S. Department of Homeland Security U. S. C i t i ~ e n s h i p Immigration Serv~ces and office of ,4clnrr1rr~trflt1~ t 3 4ppefll5 MS 2000 iwing deleted Wdsh~ngton,DC 20.52)-20)0 "vent "eark U. S. Citizenship un wmm led and Immigration inasion ofpersonal privacy Services / *.t -2 $M APR 2 8 2009FILE: Office: NEW YORK Date: MSC 02 244 61 117IN RE: Applicant:APPLICATION: Application for Status as a Permanent Resident pursuant to Section 1104 of the Legal Immigration Family Equity (LIFE) Act of 2000, Pub. L. 106-553, 114 Stat. 2762 (2000), amended by LIFE Act Amendments, Pub. L. 106-554. 114 Stat. 2763 (2000).ON BEHALF OF APPLICANT:INSTRUCTIONS :This is the decision of the Administrative Appeals Office in your case. The file has been returned to theNational Benefits Center. If your appeal was sustained, or if the matter was remanded for further action, youwill be contacted. If your appeal was dismissed, you no longer have a case pending before this office, andyou are not entitled to file a motion to reopen or reconsider your case. hiefAdministrative Appeals Office
DISCUSSION: The application for permanent resident status under the Legal Immigration FamilyEquity (LIFE) Act was denied by the Director, New York, New York, and is now before theAdministrative Appeals Office (AAO) on appeal. The appeal will be dismissed.The director denied the application because the applicant failed to demonstrate that he entered theUnited States before January 1, 1982, and resided in a continuous unlawful status through May 4,1988.On appeal, counsel for the applicant asserts that the applicant has submitted sufficient credibleevidence to establish his continuous residence. Counsel does not submit additional evidence onappeal.Section 1104(c)(2)(B) of the LIFE Act states: (i) In General - The alien must establish that the alien entered the United States before January 1, 1982, and that he or she has resided continuously in the United States in an unlawful status since such date and through May 4, 1988. In determining whether an alien maintained continuous unlawful residence in the United States for purposes of this subparagraph, the regulations prescribed by the Attorney General under section 245A(g) of the Immigration and Nationality Act (INA) that were most recently in effect before the date of the enactment of this Act shall apply.An applicant for permanent resident status under section 1104 of the LIFE Act has the burden toestablish by a preponderance of the evidence that he or she has resided in the United States for therequisite periods, is admissible to the United States and is otherwise eligible for adjustment of statusunder this section. The inference to be drawn from the documentation provided shall depend on theextent of the documentation, its credibility and amenability to verification. 8 C.F.R. tj 245a.l2(e)."Continuous unlawful residence" is defined at 8 C.F.R. tj 245a.l5(c)(l), as follows: An alien shallbe regarded as having resided continuously in the United States if no single absence from the UnitedStates has exceeded forty-five (45) days, and the aggregate of all absences has not exceeded onehundred and eighty (180) days between January 1, 1982, and May 4, 1988, unless the alien canestablish that due to emergent reasons, his or her return to the United States could not beaccomplished within the time period allowed.The "preponderance of the evidence" standard requires that the evidence demonstrate that theapplicants claim is "probably true," where the determination of "truth" is made based on the factualcircumstances of each individual case. Matter o E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In fevaluating the evidence, Matter o E-M- also stated that "[tlmth is to be determined not by the fquantity of evidence alone but by its quality." Id. Thus, in adjudicating the application pursuant tothe preponderance of the evidence standard, the director must examine each piece of evidence forrelevance, probative value, and credibility, both individually and within the context of the totality ofthe evidence, to determine whether the fact to be proven is probably true.
Even if the director has some doubt as to the truth, if the applicant submits relevant, probative, andcredible evidence that leads the director to believe that the claim is "probably true" or "more likelythan not," the applicant has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S.421 (1987) (defining "more likely than not" as a greater than 50 percent probability of somethingoccurring). If the director can articulate a material doubt, it is appropriate for the director to eitherrequest additional evidence or, if that doubt leads the director to believe that the claim is probablynot true, deny the application.Although the regulations provide an illustrative list of contemporaneous documents that an applicantmay submit, the list also permits the submission of affidavits and any other relevant document.See 8 C.F.R. 5 245a.2(d)(3)(vi)(L).The regulation at 8 C.F.R. fj 245a.2(d)(3)(i) states that letters from employers attesting to anapplicants employment must: provide the applicants address at the time of employment; identifythe exact period of employment; show periods of layoff; state the applicants duties; declare whetherthe information was taken from company records; and identify the location of such company recordsand state whether such records are accessible or in the alternative state the reason why such recordsare unavailable.In the Notice of Intent to Deny (NOID), dated April 16, 2008, the director notified the applicant thathe had failed to establish that he had resided continuously in an unlawful status during the requisiteperiod. The director noted that the applicant submitted questionable documentation in an attempt toestablish his continuous residence during the requisite period. The director granted the applicantthirty (30) days to submit additional evidence.In the Notice of Decision, dated May 12, 2008, the director denied the application for the reasonsstated in the NOID. The director noted that the applicant responded to the NOID, but failed toovercome the reasons for denial stated in the NOID and noted that the evidence submittedcontradicted the applicants Form 1-589, Application for Asylum.On appeal, counsel asserts that the director erred in considering a Form 1-589, Application forAsylum, filed by the applicant because, according to counsel, an Immigration Judge had found theapplicants asylum claim not credible, and the Board of Immigration Appeals (BIA) had affirmed thedecision of the Immigration Judge. In effect, counsel contends that the information in theapplicants Form 1-589 application should be disregarded in determining the applicants LIFE Acteligibility.At this late stage, however, the applicant cannot avoid the record he has created. As noted above,the record of proceeding contains a Form 1-589 application which had been submitted by theapplicant. The Form 1-589 application together with the documentation submitted by the applicantin support of his asylum application, is an indelible part of the record. As such, it cannot be purgedfrom the record. The AAO will, therefore, examine the entire record and make its determination ofthe applicants eligibility based on the entire record as constituted.
Page 4The issue in this proceeding is whether the applicant has furnished sufficient credible evidence todemonstrate that he continuously resided in the United States in an unlawful status during therequisite period. The applicant submitted evidence, such as letters, affidavits, and receipts, tosupport his Form 1-485 application. The AAO has reviewed the entire record. Here, the submittedevidence is neither probative, nor credible. Contrary to counsels assertion, the record reflects that the applicant has submitted questionable documentation. The applicant has submitted several affidavits and letters attesting to his continuous residence in the United States since May 1981. However, this evidence is unreliable as the record reflects that the applicant has submitted a Form 1-589 application and supporting documentation which contradicts his Form 1-687 application and the evidence he provided in support of his LIFE application. As noted by the director, the applicant indicated in his Form 1-589 application that he started a business in Bangladesh in 1985; he was invited to joint the in 1986; provided an affidavit from his father, . , attesting that the applicant had joined t - h in 1986; that he came to the United States in 1989 and returned to Bangladesh; and to avoid arrest he fled Bangladesh for the United States on August 7, 1993; was elected as Secretary of thei n 1987; and, on his Biographic Information Form G - 3 2 5 ~ which he submitted in support of his Form 1-589, the applicant indicated that he had resided in,- from January 1983 to January 1988. It is clear that his Form 1-687 application and his evidence provided in support of his Form 1-687 application, is contradicted by his Form 1-589 application, and the documentation the applicant provided in support of the Form 1-589 application.Counsels contention that the Form 1-589 should be disregarded because the applicant has concededthat the Form 1-589 application was frivolous, and it has been deemed not credible by anImmigration Judge, and the decision of the Immigration Judge has been affirmed by the BIA, iswithout merit. The fact that the applicant has submitted a frivolous asylum application, andsupporting documentation, puts into question the veracity of the applicant as it pertains to his LIFEAct. Here, the evidence pertaining to the Form 1-589 application has been assessed not to determinethe truth of the matter asserted in the asylum application, but rather to determine the veracity of theevidence in the record of proceedings. In that the applicant has submitted contradictory applications,there are considerable doubts as to whether the applicants claim is true, and whether any of thedocuments, including the affidavits and letters, that the applicant provided in support of his LIFEapplication are genuine.The applicant has failed to submit sufficient credible evidence to demonstrate that he continuouslyresided in the United States in an unlawful status during the requisite period. As also noted above,the discrepancies in the record of evidence, cast considerable doubt on the applicants claim that heresided in the United States since prior to January 1982 in an unlawful status. Accordingly, theevidence submitted by the applicant to establish his continuous residence, is deemed not credible.
Page 5Doubt cast on any aspect of the applicants proof may lead to a reevaluation of the reliability andsufficiency of the remaining evidence offered in support of the application. It is incumbent upon theapplicant to resolve any inconsistencies in the record by independent objective evidence, and attemptsto explain or reconcile such inconsistencies, absent competent objective evidence pointing to where thetruth lies, will not suffice. Matter o Ho, 19 I&N Dec. 582 (BIA 1988). The applicant has failed to fsubmit any objective evidence to explain or justify the discrepancies in the record. Therefore, thereliability of the remaining evidence offered by the applicant is suspect and it must be concluded thatthe applicant has failed to establish that he continuously resided in the United States in an unlawfulstatus during the requisite period.Therefore, based on the above, the applicant has failed to establish entry into the United States prior toJanuary 1, 1982, and continuous unlawful residence through May 4, 1988, as required under Section1104(c)(2)(B) of the LIFE Act. Given this, he is ineligible for permanent resident status underSection 1104 of the LIFE Act.ORDER: The appeal is dismissed. This decision constitutes a final notice of ineligibility.