Andres Tadeo v. Eric H. Holder Jr. , 510 F. App'x 579 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDRES MARIANO TADEO; EMMA No. 08-75001
ALTAGRACIA MARIANO,
Agency Nos. A079-520-794
Petitioners, A079-520-795
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 13, 2013
San Francisco, California
Before: SCHROEDER, HAWKINS, and MURGUIA, Circuit Judges.
Andres Mariano Tadeo and his wife, Emma Altagarcia Mariano, both
citizens of Mexico, appeal the BIA’s decision affirming the IJ’s denial of
cancellation of removal and denying their motion to reopen and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The BIA’s decision is reviewed for substantial evidence and is disturbed
“only if the evidence presented compels a reasonable factfinder to reach a contrary
result.” Vera-Villegas v. INS, 330 F.3d 1222, 1230 (9th Cir. 2003) (citation
omitted) (internal quotation marks omitted). We grant the petition and remand for
further proceedings.
I. Andres Mariano Tadeo
To be eligible for cancellation of removal Andres must prove by a
preponderance of the evidence that he is “a person of good moral character,” 8
U.S.C. § 1229b(b)(1)(B), a fact which he is precluded from establishing if he gave
“false testimony for the purpose of obtaining any” immigration benefit, 8 U.S.C. §
1101(f)(6). Andres’s former, and now-disbarred, counsel incorrectly listed 1989 as
Andres’s date of entry on his initial asylum application. Andres repeated the
incorrect date to an asylum officer because his counsel told Andres that he could
not correct the date. The record lacks sufficient evidence to demonstrate that
Andres gave false testimony “with the subjective intent of obtaining immigration
benefits.” Kungys v. United States, 485 U.S. 759, 780 (1988).
First, the misrepresentation was immaterial and “it will be relatively rare that
the Government will be able to prove that a misrepresentation” that is not material
“was nonetheless made with the subjective intent of obtaining those benefits.” Id.-2-
at 780–81. Second, Mr. Mariano testified credibly that he did not give the false
testimony in order to obtain an immigration benefit. See Lopez-Alvarado v.
Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004) (testimony must be accepted as true
absent an adverse credibility finding). Third, the transcript of the hearing contains
gaps when Andres is explaining his subjective intent. Fourth, the fact that Andres
was following the advice of counsel is insufficient to demonstrate his subjective
intent to obtain an immigration benefit because the record does not reveal what his
counsel told him.
Because the IJ and BIA stopped after invoking the statutory bar, the case is
remanded for a determination of whether Andres has good moral character and is
otherwise eligible for cancellation of removal. INS v. Orlando Ventura, 537 U.S.
12, 16 (2002).
II. Emma Altagarcia Mariano
The IJ made an adverse credibility determination and it is evaluated under
the pre-REAL ID Act standard, which requires that the basis for the determination
must go to the heart of the alien’s claim. Li v. Ashcroft, 378 F.3d 959, 962 (9th
Cir. 2004). The heart of Emma’s claim is that she was continuously present in the
United States beginning in 1990. None of the inconsistencies identified by the IJ
relate to her continued presence.
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The presence of her parents at the 1990 border crossing is irrelevant to her
claim. See Singh v. Gonzales, 439 F.3d 1100, 1108–09 (9th Cir. 2006) (non-
critical details, even if relating to a critical event, cannot form basis of adverse
credibility finding). The date of Emma’s brief enrollment in school in the United
States is similarly not relevant to her continued presence. The confusing testimony
about the ages of Emma’s nieces at the time she entered the United States “must be
viewed in light of all the evidence presented in the case,” Kaur v. Gonzales, 418
F.3d 1061, 1066 (9th Cir. 2005), and we cannot “abandon our common sense,” id.Emma’s passport shows she entered the United States in 1990 and, because there is
no suggestion that the stamp is not genuine, common sense suggests that this is the
date that she entered the country.
Additionally, even if the inconsistencies identified by the IJ were actual
inconsistencies that went to the heart of Emma’s claim, the IJ erred because it did
not “afford [Emma] a chance to explain inconsistencies, and [the IJ did not]
address these explanations.” Singh, 439 F.3d at 1105.
On remand the BIA should consider Emma’s credibility on an open record.
See Soto-Olarte v. Holder, 555 F.3d 1089, 1094 (9th Cir. 2009); see also Orlando
Ventura, 537 U.S. at 16 (remand for explanation and investigation is appropriate
save for rare cases).
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III. Motion to Reopen
Because the case is remanded on an open record, see Soto-Olarte, 555 F.3d
at 1095–96, and the BIA should consider any relevant evidence, it is not necessary
to determine if it was an error to deny the motion to reopen.
The petition is GRANTED and the case is REMANDED for further
proceedings.
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