FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATEO CORTEZ-PINEDA,
Petitioner, No. 08-72314
v.
Agency No.
A094-086-105
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 7, 2010—Seattle, Washington
Filed July 2, 2010
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and James Ware, District Judge.*
Opinion by Judge Gould
*The Honorable James Ware, United States District Judge for the
Northern District of California, sitting by designation.
9495
9498 CORTEZ-PINEDA v. HOLDER
COUNSEL
Erin T. Hall, Carol L. Edward (argued), Law Offices of Carol
L. Edward, Seattle, Washington, for petitioner Mateo Cortez-
Pineda.
Tony West, Richard M. Evans, Allen W. Hausman, Michael
C. Heyse (argued), United States Department of Justice, Civil
Division, Washington, D.C., for respondent Eric H. Holder Jr.
OPINION
GOULD, Circuit Judge:
Mateo Cortez-Pineda petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) dismissing his
appeal of an Immigration Judge’s (“IJ”) denial of his applica-
tions for special rule cancellation of removal, asylum, with-
holding of removal, and protection under the United Nations
Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
I
Cortez-Pineda, born in 1955, is a native and citizen of El
Salvador. The government initiated removal proceedings
against Cortez-Pineda in December 2005 with the filing of a
Notice to Appear. It alleged that Cortez-Pineda entered the
United States on or about June 1, 1990, and that he was
removable as an alien present in the United States without
having been admitted or paroled. Cortez-Pineda admitted the
allegations and conceded removability, but sought special rule
cancellation of removal under section 203 of the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”),
which extends eligibility for relief from removal to Salvado-
ran nationals who, among other requirements not at issue
CORTEZ-PINEDA v. HOLDER 9499
here, “first entered the United States on or before September
19, 1990.” Pub. L. No. 105-100, 111 Stat. 2193-2201 (1997),
amended by Pub. L. No. 105-139, 111 Stat. 2644-45 (1997).
At a June 2006 hearing, Cortez-Pineda testified in support
of his eligibility for special rule cancellation, stating that he
entered the United States in June 1990. During cross-
examination, the government asked whether Cortez-Pineda
had admitted to immigration officers during a 1992 immigra-
tion fraud investigation1 that, contrary to his claimed June
1990 entry, he “entered the United States in 1991.” Cortez-
Pineda answered, “No.” The government also pressed an
inconsistency between Cortez-Pineda’s claimed June 1990
entry date and a statement in Cortez-Pineda’s asylum applica-
tion that he experienced problems in El Salvador “[t]owards
the end of 1990.” During the exchange, Cortez-Pineda’s coun-
sel stated in passing that the Notice to Appear stated that June
1990 was his entry date.
At the end of the June hearing, the government requested
that an evidentiary hearing be set on the issue of Cortez-
Pineda’s date of entry if the government was able to secure
evidence from the 1992 investigation. The IJ adopted that
plan. On July 17, 2006, the government filed and served on
Cortez-Pineda’s counsel a memorandum in which it formally
requested an evidentiary hearing concerning the “alleged date
of entry into the United States.” The IJ issued an order on July
19, 2006, notifying the parties that there would be a hearing
concerning “the critical issue of whether the respondent
entered this country in 1991 as opposed to the claimed entry
from June, 1990.” By later agreement of the parties, the IJ
scheduled the evidentiary hearing for November 20, 2006.
At the November evidentiary hearing, the government
1
The fraud investigation concerned allegedly fraudulent petitions for
immigration benefits. Cortez-Pineda was a witness in, but not the subject
of, the investigation.
9500 CORTEZ-PINEDA v. HOLDER
offered testimony from the two immigration officers who had
interviewed Cortez-Pineda during the 1992 investigation. The
officers testified that during the interview, Cortez-Pineda had
admitted to entering on January 4, 1991, and had retracted as
false an earlier entry date indicated in his application for Tem-
porary Protected Status. The government also introduced an
affidavit prepared by the officers in which they had contem-
poraneously memorialized their interview with Cortez-Pineda.
The IJ credited the testimony of the officers and determined
that Cortez-Pineda was not eligible for special rule cancella-
tion because he entered the United States after September 19,
1990.
Cortez-Pineda also sought relief from removal in the form
of asylum, withholding of removal, and CAT protection, and
the IJ denied these claims. The BIA, citing Matter of Bur-
bano, 20 I. & N. Dec. 872, 874 (BIA 1994), adopted the IJ’s
decision and dismissed the appeal. Cortez-Pineda’s timely
petition for review followed.
II
When, as here, the BIA adopts the IJ’s decision citing Mat-
ter of Burbano, we review the IJ’s decision as if it were the
BIA’s. Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.
2005) (en banc). We review findings of fact for substantial
evidence and questions of law de novo. Id.
III
Cortez-Pineda argues that he met his burden of establishing
eligibility for special rule cancellation under NACARA, see
8 C.F.R. § 240.64(a), because the government alleged in the
Notice to Appear that Cortez-Pineda entered the United States
on or about June 1, 1990, and that allegation was a judicial
admission that bound the parties and the court when Cortez-
Pineda admitted that fact before the IJ. Cortez-Pineda relies
CORTEZ-PINEDA v. HOLDER 9501
on our decision in Hakopian v. Mukasey, 551 F.3d 843 (9th
Cir. 2008).
[1] In Hakopian, we established that an uncontested date
of entry alleged in the Notice to Appear is treated as a judicial
admission for establishing the alien’s date of entry. There, the
Notice to Appear alleged an entry date that would have ren-
dered Hakopian’s asylum application timely. Id. at 845-46.
The IJ nevertheless concluded that Hakopian’s asylum claim
was time-barred because Hakopian “ha[d] no documents to
establish the date, time, and manner of her entry, only her
own testimony.” Id. at 846. We held that the IJ erred, reason-
ing as follows:
The government alleged Hakopian’s arrival date
in its Notice to Appear, and Hakopian admitted the
government’s allegation at her hearing before the IJ.
Allegations in a complaint are considered judicial
admissions. See Am. Title Ins. Co. v. Lacelaw Corp.,
861 F.2d 224, 226 (9th Cir. 1988). In immigration
proceedings, the Notice to Appear serves the same
function as a civil complaint. Therefore, both the
government and Hakopian agreed upon her date of
entry, thus rendering this fact undisputed.
Id. We reaffirmed Hakopian’s holding after briefing in this
case was complete. See Cinapian v. Holder, 567 F.3d 1067,
1073 (9th Cir. 2009).
[2] Contrary to Cortez-Pineda’s contention, however,
Hakopian did not establish a blanket rule that facts alleged in
a Notice to Appear, if admitted before the IJ, bind the court
and the parties. We made explicitly clear in Hakopian that an
entry date alleged in a Notice to Appear might not bind the
IJ if the Notice to Appear is amended or if, as here, the entry
date is subsequently contested:
[A]t no point—either before or during Hakopian’s
hearing—did the government move to amend its
9502 CORTEZ-PINEDA v. HOLDER
Notice to Appear with respect to, or otherwise con-
test, Hakopian’s stated date of entry. Therefore,
Hakopian could scarce be expected to produce addi-
tional documentary evidence of her arrival date, as
the IJ required in his oral decision. Had the govern-
ment ever withdrawn its allegation of or challenged
Hakopian’s claimed entry date, a different case
might obtain.
551 F.3d. at 847; see also Cinapian, 567 F.3d at 1073.
[3] We hold that here, the government should not be held
to have made a binding judicial admission about Cortez-
Pineda’s entry date because the government vigorously dis-
puted the entry date during the November 2006 evidentiary
hearing after notice was given to Cortez-Pineda that the issue
was in dispute, and Cortez-Pineda never expressly objected
on the grounds of judicial admission, instead stipulating to an
evidentiary hearing on the issue.2 Cortez-Pineda was specifi-
cally instructed by the IJ in a July order and again during an
August master calendar hearing that the entry-date issue
would be the focus of the November evidentiary hearing, and
Cortez-Pineda was given adequate time—almost half a year
from the June hearing—to prepare for the November hearing.
Cortez-Pineda’s counsel never suggested that the Notice to
Appear conclusively established Cortez-Pineda’s entry date,
and his counsel’s passing reference to the entry-date allega-
tion in the Notice to Appear cannot reasonably be construed
2
Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986), which con-
cerned an alien’s attempt to disavow admissions of fact and a concession
to deportability earlier made for tactical reasons by the alien’s counsel, id.
at 382, is inapposite. Cortez-Pineda does not contend that the govern-
ment’s allegation of the entry date in the Notice to Appear was a tactical
decision. And, unlike in Velasquez where the government relied on the
petitioner’s admission “[i]n order to prove the respondent’s deportability,”
id. at 379, here, as explained below, Cortez-Pineda did not rely on the
alleged entry date in trying to prove his eligibility for special rule cancella-
tion.
CORTEZ-PINEDA v. HOLDER 9503
as an objection to a contest of that issue. Instead, when the IJ
instructed Cortez-Pineda’s counsel at the June 2006 hearing
that she would have until July 21, 2006, to respond to the gov-
ernment’s request, if any, for an evidentiary hearing concern-
ing the entry-date issue, Cortez-Pineda’s counsel then
acknowledged, “That would be okay.”
Moreover, although “admissions in the pleadings are gener-
ally binding,” Am. Title Ins. Co., 861 F.2d at 226, Cortez-
Pineda’s counsel did not raise the judicial admission argument
to the IJ. Had she done so, the government would have been
alerted that to avoid controversy, it should amend the Notice
to Appear and could have sought to do so. See In re Bakers-
field Westar Ambulance, Inc., 123 F.3d 1243, 1248 (9th Cir.
1997).3 Nor did Cortez-Pineda rely in any way on the entry
date alleged in the Notice to Appear in making his case that
he was eligible for special rule cancellation; instead, Cortez-
Pineda’s counsel sought to establish Cortez-Pineda’s timely
entry through Cortez-Pineda’s direct testimony and through
documentary evidence. Cf. 32 C.J.S. Evidence § 626 (2008)
(“When a party does not rely on the judicial admission of his
adversary, but introduces evidence that has the effect of dis-
proving his case, the party making the admission is not bound
by it.”).4
3
We reject Cortez-Pineda’s argument that the government could not
have amended the Notice to Appear if it had been so informed. The appli-
cable regulations provide that substituted charges or allegations may be
lodged “at any time.” 8 C.F.R. §§ 1003.30, 1240.10(e).
4
Although Rule 15(b)(2) of the Federal Rules of Civil Procedure is
inapplicable in immigration proceedings, our decision accords with Rule
15(b)(2), which expressly permits a trial by consent of the parties of an
issue not raised in the pleadings. See id. (“When an issue not raised by the
pleadings is tried by the parties’ express or implied consent, it must be
treated in all respects as if raised in the pleadings. . . . [F]ailure to amend
does not affect the result of the trial of that issue.”); see also Janis v.
Comm’r of Internal Revenue, 461 F.3d 1080, 1085 n.3 (9th Cir. 2006)
(unpleaded issue was tried by implied consent where no objection was
made when the issue was raised).
9504 CORTEZ-PINEDA v. HOLDER
Cortez-Pineda next argues that the government’s failure to
amend the Notice to Appear deprived him of the opportunity
to respond to the amended allegation before the merits hear-
ing on the issue. See 8 C.F.R. §§ 1003.30, 1240.10(e) (provid-
ing that in the event that substituted charges or allegations are
lodged, the alien “may be given a reasonable continuance to
respond to the additional factual allegations and charges”).
This argument is without merit. When the government con-
tested the entry date during the June 2006 hearing, the hearing
was continued, and Cortez-Pineda had until November to pre-
pare a response on this issue, which we conclude was a rea-
sonable amount of time in the circumstances of this case.
[4] Evaluating the evidence of Cortez-Pineda’s entry date,
the IJ’s determination that the June 1990 entry date was not
credible is supported by substantial evidence.5 The testimony
of the immigration officers—that Cortez admitted to entering
the United States in January 1991—was consistent, detailed,
and corroborated by a contemporaneously prepared affidavit.
The IJ appropriately concluded that Cortez-Pineda was not
eligible for special rule cancellation.6 We hold that substantial
evidence supports this conclusion of the IJ.
IV
We also review for substantial evidence the factual findings
underlying the IJ’s determination that a petitioner has not
established eligibility for asylum, withholding of removal, or
5
We reject Cortez-Pineda’s contention that the IJ should have consid-
ered the “possibly coercive nature and circumstances regarding Mr.
Cortez-Pineda’s August 1992 sworn statement which changed his date of
entry date into the U.S. from 1990 to January 1991.” Cortez-Pineda never
stated that he was coerced into changing his entry date and instead stated
that he did not recall retracting the June 1990 entry date. This is insuffi-
cient to rebut the substantial evidence supporting the IJ’s conclusion.
6
We recognize that the better procedure would have been for the gov-
ernment to amend the Notice to Appear, if only to avoid disputes like the
present one, and we encourage the government to do so in future cases.
CORTEZ-PINEDA v. HOLDER 9505
CAT relief. Sinha v. Holder, 564 F.3d 1015, 1019-20, 1025
(9th Cir. 2009).
To qualify for asylum, a petitioner must establish that he or
she meets the statutory definition of a refugee, 8 U.S.C.
§ 1158(b), as someone “who is unable or unwilling to return
to, and is unable or unwilling to avail himself or herself of the
protection of, [his or her] country because of persecution or
a well-founded fear of persecution on account of” a protected
ground, 8 U.S.C. § 1101(a)(42)(A). The IJ made an explicit
adverse credibility determination and denied Cortez-Pineda’s
asylum claim on that basis. We review an adverse credibility
determination for substantial evidence. Shrestha v. Holder,
590 F.3d 1034, 1039 (9th Cir. 2010). Even if some of the fac-
tors relied upon by the IJ are unsupported, in the case of an
asylum application filed before May 11, 2005, we must
uphold an adverse credibility finding “[s]o long as one of the
identified grounds is supported by substantial evidence and
goes to the heart of [the petitioner’s] claim of persecution.” Li
v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) (first alteration
in original).7
[5] At least two of the grounds relied on by the IJ in mak-
ing the adverse credibility determination go to the heart of
Cortez-Pineda’s claim and are supported by substantial evi-
dence. First, the IJ determined that the inconsistency between
Cortez-Pineda’s claimed June 1990 entry date and the January
1991 entry date he admitted to during the fraud investigation
undermined his credibility on his asylum claim. Second, the
IJ determined that Cortez-Pineda’s statement in the asylum
application that he was seeking asylum because of threats he
received toward the end of 1990 was inconsistent with his
hearing testimony that he left El Salvador because of threats
7
The REAL ID Act’s elimination of the requirement that inconsistencies
must go to the heart of the claim does not apply here because Cortez-
Pineda filed his asylum application before May 11, 2005. See Shrestha,
590 F.3d at 1039-40.
9506 CORTEZ-PINEDA v. HOLDER
he received in March 1990. These are not insignificant incon-
sistencies about the precise date on which an event occurred,
cf. Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir. 2000), but
are material and call into question whether Cortez-Pineda
actually experienced the problems that he said precipitated his
decision to depart El Salvador. The IJ did not have to accept
Cortez-Pineda’s unpersuasive explanations for these
inconsistencies—that he did not recall retracting his June
1990 entry date during the 1992 investigation, and that he
“made a mistake in the dates” in the asylum application. See
Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). Fur-
ther, the IJ’s conclusion that the affidavits from Cortez-
Pineda’s family members—which described threats and inju-
ries from unknown and unidentified persons—did not support
his persecution claim, is supported by substantial evidence.
We hold that the IJ’s adverse credibility determination and
denial of asylum relief are supported by substantial evidence.
Because Cortez-Pineda did not satisfy the lower standard of
proof for asylum, he necessarily did not satisfy the more strin-
gent standard of proof for withholding of removal. See Farah
v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).8
[6] Finally, when, as here, the petitioner’s CAT claims
“are based on the same statements . . . that the [IJ] determined
to be not credible,” and the petitioner “points to no other evi-
dence that he could claim the [IJ] should have considered,”
the CAT claim must be rejected. Id. at 1157.
DENIED.
8
Because only one ground is necessary to support an adverse credibility
determination, see Li, 378 F.3d at 964, we do not reach the additional
grounds cited by the IJ. Similarly, we do not reach the IJ’s alternative con-
clusion that Cortez-Pineda’s testimony, even if credible, did not establish
that he met the statutory definition of a refugee.