Jose Ballesteros Rodriguez v. Eric Holder, Jr. , 511 F. App'x 614 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE FRANCISCO BALLESTEROS No. 10-73120
RODRIGUEZ,
Agency No. A088-223-976
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2013 **
San Francisco, California
Before: SCHROEDER and MURGUIA, Circuit Judges, and MCNAMEE, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen M. McNamee, Senior District Judge for the
U.S. District Court for the District of Arizona, sitting by designation.
Petitioner Jose Francisco Ballesteros Rodriguez, a native and citizen of
Mexico, petitions for review of the dismissal of his appeal by the Board of
Immigration Appeals (“BIA”). The Immigration Judge (“IJ”) denied his
application for cancellation of removal, finding that Ballesteros Rodriguez
furnished false testimony in order to obtain a benefit under the Immigration and
Nationality Act (“INA”) and, pursuant to 8 U.S.C. § 1101(f)(6), lacked good moral
character. The BIA similarly concluded that Ballesteros Rodriguez failed to
demonstrate good moral character and rejected his contention that he timely and
voluntarily recanted his false testimony. We have jurisdiction pursuant to 8 U.S.C.
§ 1252 to review nondiscretionary determinations of statutory ineligibility, Gomez-
Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir. 2005), and review for substantial
evidence the agency’s factual findings regarding whether an applicant falls into
one of the per se categories set forth in 8 U.S.C. § 1101(f), Urzua Covarrubias v.
Gonzales, 487 F.3d 742, 747 (9th Cir. 2007). We deny the petition for review.
Substantial evidence supports the agency’s determination that Ballesteros
Rodriguez furnished false testimony under oath in order to obtain a benefit under
the INA and, in accordance with 8 U.S.C. § 1101(f)(6), is ineligible for
cancellation of removal because he lacks good moral character. Ballesteros
Rodriguez testified at his August 2009 removal hearing that, due to an injury, he
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was unemployed for a two-year period during which he received disability
compensation. When his hearing resumed in December 2009, Ballesteros
Rodriguez produced employment records demonstrating that he was employed
under an alias during the two-year period in question. When questioned by the IJ
about the inconsistencies between his August 2009 testimony and employment
records, Ballesteros Rodriguez acknowledged that he testified untruthfully,
explaining that he “did not want to report that [he] had worked during those years
because [he] thought it was going to affect [him].” Ballesteros Rodriguez then lied
about the year he suffered his injury, fearing the IJ’s discovery that he worked
while collecting disability benefits would adversely affect his cancellation of
removal application.
Ballesteros Rodriguez contends that 8 U.S.C. § 1101(f)(6) does not render
him ineligible for cancellation of removal because he timely and voluntarily
recanted his false testimony. As we explained in Valadez-Munos v. Holder, “when
a person supposedly recants only when confronted with evidence of his
prevarication, the amelioration is not available.” 623 F.3d 1304, 1310 (9th Cir.
2010). Such is the case here: Ballesteros Rodriguez made no voluntary effort to
recant his false testimony and was forthcoming about his deception only after the
IJ confronted him. Accordingly, substantial evidence supports the agency’s
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determination that Ballesteros Rodriguez neither timely nor voluntarily recanted
his false testimony.
PETITION FOR REVIEW DENIED.
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