Camacho v. Barr ( 2020 )

19-2041
Camacho v. Barr
BIA
Straus, IJ
A073 593 521
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
28th day of October, two thousand twenty.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
ERIK CAMACHO,
Petitioner,
v. 19-2041
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
Fasano, LLP, New York, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General; Anthony
P. Nicastro, Assistant Director;
Matthew B. George, Senior Litigation
Counsel, Office of Immigration
Litigation, United States Department
of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is GRANTED.
Petitioner Erik Camacho, a native and citizen of Venezuela,
seeks review of a June 7, 2019 decision of the BIA affirming a
December 5, 2017 decision of an Immigration Judge (“IJ”) ordering
his removal on inadmissibility grounds. See In re Erik Camacho,
No. A073 593 521 (B.I.A. June 7, 2019), aff’g No. A073 593 521
(Immig. Ct. Hartford Dec. 5, 2017). We assume the parties’
familiarity with the underlying facts, procedural history, and
issues on appeal.
Camacho was charged as removable under four grounds of
inadmissibility under Section 212(a) of the Immigration and
Nationality Act. See 8 U.S.C. § 1182(a)(2)(C), (a)(2)(A)(i)(II),
(a)(6)(A)(i), (a)(7)(A)(i)(I). The sole issue before us is whether
the agency erred in finding that Camacho failed to meet his burden
of showing that he was admitted to the United States as a visitor
in 1995.
As an initial matter, we conclude that we have jurisdiction
to address this issue. The government contends that 8 U.S.C.
§ 1252(a)(2)(C) limits our jurisdiction because Camacho was
ordered removed on criminal grounds of inadmissibility. But we
have jurisdiction to determine whether this limitation applies,
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and that requires determining whether Camacho established that he
had been admitted to the United States. See Ming Lam Sui v. INS,
250 F.3d 105, 110 (2d Cir. 2001); see also Higgins v. Holder, 677
F.3d 97, 100 (2d Cir. 2012).
We have reviewed both the IJ’s and BIA’s decisions “for the
sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). 1 “We defer to the factual findings
of the BIA and the IJ if they are supported by substantial
evidence, and we review de novo legal conclusions and the
application of legal principles to undisputed facts.” Higgins,
677 F.3d at 100.
As Camacho was charged as removable on grounds of
inadmissibility under § 1182, he had the burden of establishing by
clear and convincing evidence that he was lawfully present in the
United States pursuant to a prior admission. See 8 U.S.C. §
1229a(c)(2)(B). “In meeting th[is] burden of proof . . . the alien
shall have access to the alien’s visa or other entry document, if
any, and any other records and documents, not considered by the
Attorney General to be confidential, pertaining to the alien’s
admission or presence in the United States.” Id.; see also id. §
1361.
1 Unless otherwise indicated, case quotations omit all
internal quotation marks, alterations, footnotes, and citations.
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In support of his claim that he was lawfully admitted to the
United States, Camacho submitted an I-797A form which listed him
as a beneficiary and his father as the applicant for an extension
of temporary stay, as well as his testimony and his family’s
testimony. In opposition, the government argued that Camacho did
not produce a passport or an I-94 form, cited its I-213 form which
stated that a search on their database did not show any lawful
entrances by Camacho, and noted that a 1996 asylum application
filed when Camacho was six years old reflected that Camacho entered
without inspection in 1990.
We remand for the agency to explain its conclusion that the
I-797A was not sufficient evidence of admission under the
circumstances of this case. See Poradisova v. Gonzales, 420 F.3d
70, 77 (2d Cir. 2005) (“Despite our generally deferential review
of IJ and BIA opinions, we require a certain minimum level of
analysis from the IJ and BIA . . . and indeed must require such if
judicial review is to be meaningful.”). The government and the IJ
stated that they were looking for the I-94 form, which is typically
accepted evidence of a lawful admission to the United States.
However, U.S. Citizenship and Immigration Services “uses numerous
types of Form I-797 to communicate with applicants/petitioners or
convey an immigration benefit. . . . [Form] I-797A, Notice of
Action [is] [i]ssued to an applicant as a replacement Form I-94.”
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Form I-797: Types and Functions, U.S. Citizenship & Immigration
Services, https://www.uscis.gov/forms/filing-guidance/form-i-797-
types-and-functions (last visited Oct. 26, 2020).
Additionally, both the IJ and the government acknowledged the
possibilities that (1) Camacho might not have had an I-94 because
he was a child and he would not have needed a passport while
travelling as a dependent, (2) Camacho’s I-94 might have been in
one of his parents’ passports, and (3) the government’s database
search of Camacho’s name might not have yielded any results because
Camacho entered the country on one of his parents’ entry documents.
Given this third point, the government’s evidence in support of
the charge — an I-213 form — is not material. The I-213 form
simply states that “[n]o information was found in TECS that would
indicate that the subject ever made a lawful entry into the US,”
Admin. Record 600; the more useful search for someone alleging
entry at age six would be whether TECS reflected the arrival of
Camacho’s parents in 1995.
Moreover, the IJ’s description of the I-797A form is
inaccurate. The IJ concluded that Camacho did “not provide[] any
valid documents to show he was legally admitted to the United
States other than . . . [Form I-797A] which reflects . . . someone
named Cesar Camacho obtained an application to extend his non-
immigrant status.” Admin. Record 52. The IJ relied on the fact
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that the form lists someone with the same name as Camacho’s father
as the applicant, but failed to acknowledge that Camacho was listed
as a beneficiary and that the detachable card at the bottom of the
form was in Camacho’s name and lists an I-94 number. See Mendez
v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (holding that agency
may commit error of law if it “overlook[s]” or “seriously
mischaracterize[s]” critical evidence).
Given the lack of explanation for why the I-797A form is
insufficient proof of a lawful admission, particularly in light of
the corroborating testimony from Camacho’s family and the absence
of any adverse credibility determination, we cannot conclude that
an admittedly false asylum application filed when Camacho was six
years old is sufficient evidence to call the I-797A into question.
For the foregoing reasons, the petition for review is GRANTED.
The BIA’s decision is VACATED, and the case is REMANDED for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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