Case: 13-12791 Date Filed: 05/09/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12791; 13-14411
Non-Argument Calendar
________________________
Agency No. A201-214-116
YUSONG CUI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 9, 2014)
Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 13-12791 Date Filed: 05/09/2014 Page: 2 of 6
Yusong Cui, a Chinese national, petitions for review of the Board of
Immigration Appeals’ final order affirming the Immigration Judge’s finding that
he is removable under 8 U.S.C. § 1182(a)(6)(A)(i) and (a)(7)(A)(i)(I). He also
petitions for review of the BIA’s denial of his motion to reconsider that final
order. 1
I.
In March 2010 a Florida state court convicted Cui of petit theft, resisting an
officer without violence, and carrying a concealed firearm. Those convictions
brought Cui to the attention of the Department of Homeland Security, which ran
his fingerprints through a national database and found that he had not been
“admitted, inspected, or paroled” in the United States. The DHS documented that
finding in a Form I-213 Record of Deportable/Inadmissible Alien and charged Cui
as removable because he had entered the country at an unknown place and time
without being inspected or admitted, in violation of 8 U.S.C. § 1182(a)(6)(A)(i),
and because he lacked a valid travel or entry document, in violation of 8 U.S.C.
§ 1182(a)(7)(A)(i)(I).
At a hearing before the IJ, Cui conceded his alienage but contested his
removability, alleging that he had been properly inspected and admitted at the Los
Angeles International Airport in May 1998. To support that allegation, he offered
1
Cui filed two separate petitions which are consolidated here.
2
Case: 13-12791 Date Filed: 05/09/2014 Page: 3 of 6
only testimony — his own and that of two acquaintances. He presented no
passport, no visa, no I-94 Arrival/Departure Form, no airline tickets, or any other
documentation. Cui testified that his mother had made all of his travel
arrangements, and that she had paid a man named Jang $10,000 to get a visa for
him. He said Jang flew with him to the airport in Los Angeles in May 1998, after
which Jang walked him through the immigration inspection and dealt with the
immigration officials on his behalf. Cui testified that once he had passed through
the inspection Jang took his passport and other immigration documents and left.
Cui’s first acquaintance then testified that he had picked up Cui from the airport in
May 1998, and the second testified that he did not know when Cui arrived but had
heard that it was in May 1998.
The IJ found that Cui was removable because he had not shown that he had
been inspected and admitted into the United States. The IJ noted that Cui had no
documentation to substantiate his story and found that his testimony was not
credible and that the testimony of his acquaintances merited little weight. The IJ
also found that the Form I-213 showing that there was no record of Cui’s
inspection or admission was inherently trustworthy and admissible because Cui
had neither objected to its admission as evidence nor offered other documentary
evidence suggesting it was inaccurate. The BIA affirmed. Cui asked the BIA to
reconsider its final order, and the BIA denied his motion because he had failed to
3
Case: 13-12791 Date Filed: 05/09/2014 Page: 4 of 6
identify any material error of fact or law in its prior decision. Cui now petitions for
review of the BIA’s final order and its denial of his motion to reconsider.
II.
We review only the BIA’s final order except to the extent that the BIA
expressly adopted the IJ’s decision or findings. See Wu v. U.S. Att’y Gen., 712
F.3d 486, 492 (11th Cir. 2013). In this context, we review factual determinations
“under the highly deferential substantial evidence test,” and “we must affirm the
BIA’s decision if it is supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Id. (quotation marks omitted). To reverse
the IJ and BIA’s factfindings, we must find that the record not only supports
reversal, but that it compels it. See Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d
1223, 1230 (11th Cir. 2007).
Cui was charged as removable based on inadmissibility under 8 U.S.C.
§ 1182, and when that is the charge, the BIA uses a burden-shifting test to
determine removability. See 8 C.F.R. § 1240.8(c). DHS bears the initial burden
of proving alienage, after which the alien bears the burden of proving that he was
inspected and admitted into the United States. 2 See id.; 8 U.S.C. § 1229a(c)(2)(B);
see also Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1345–46 (11th Cir. 2010). Cui
conceded his alienage before the IJ, so we must determine only whether the record
2
An alien may contest his inadmissibility under 8 U.S.C. § 1182 on other grounds, but
this is the only ground at issue here.
4
Case: 13-12791 Date Filed: 05/09/2014 Page: 5 of 6
compels the conclusion that he was previously inspected and admitted into the
United States. The record does not compel that conclusion.
First, Cui did not prove that he had been inspected or admitted. He failed to
present a single document to support his claim. The IJ found that his testimony
was not credible, a finding we must defer to because it is supported by substantial
evidence in the record. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818
(11th Cir. 2004) (“Credibility determinations . . . are reviewed under the
substantial evidence test.”). And the IJ found that the testimony of his two
acquaintances merited little weight, another finding supported by substantial
evidence in the record. Second, the Form I-213 also shows that Cui was never
inspected or admitted to the United States. That form is considered to be
inherently trustworthy, and Cui did not challenge its admission or accuracy. See
Gutierrez-Berdin v. Holder, 618 F.3d 647, 653 (7th Cir. 2010) (holding that “Form
I-213 is a presumptively reliable administrative document” that is “inherently
trustworthy” when its accuracy is not challenged). Because the record does not
compel the conclusion that Cui was inspected and admitted into the United States,
we must deny his petition for review of the BIA’s final order.
III.
“We review the BIA’s denial of a motion to reconsider for abuse of
discretion.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007)
5
Case: 13-12791 Date Filed: 05/09/2014 Page: 6 of 6
(quotation marks omitted). A motion asking the BIA to reconsider its decision
must specify the errors of law or fact in the original decision. See id. at 1329
(citing 8 C.F.R. § 1003.2(b)(1)). A motion that merely reiterates earlier arguments
fails to specify those kinds of legal or factual errors. Id. Because Cui’s motion to
reconsider merely reiterated arguments already presented, the BIA did not abuse its
discretion in denying that motion. And to the extent that Cui based his motion to
reconsider on new legal arguments that could have been raised in the underlying
proceedings, the BIA also properly denied his motion. See Matter of O-S-G-, 24 I.
& N. Dec. 56, 58 (BIA 2006).
PETITIONS DENIED.
6