Acosta v. Lynch

United States Court of Appeals
For the First Circuit

No. 14-1810

JHONATAN ACOSTA,

Petitioner,

v.

LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Carlos E. Estrada, on brief for petitioner.
Lindsay M. Murphy, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Keith I. McManus, Senior Litigation Counsel,
on brief for respondent.

April 22, 2016

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta E.
Lynch is substituted for former Attorney General Eric H. Holder,
Jr. as respondent.
 TORRUELLA, Circuit Judge. Petitioner Jhonatan Acosta

("Acosta") petitions this court to review a decision of the Board

of Immigration Appeals ("BIA") affirming an Immigration Judge's

("IJ") decision that Acosta is removable as "[a]n alien present in

the United States without being admitted or paroled" under

Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8

U.S.C. § 1182(a)(6)(A)(i). He contends that the BIA and IJ erred

in their determinations that his testimony before the IJ was not

credible. In addition, he asserts that the BIA erred by summarily

affirming the IJ's decision to give no weight to his favorable

polygraph test. For the reasons that follow, we deny the petition.

I. Factual and Procedural Background

A native and citizen of Colombia, Acosta is twenty-seven

years old and currently resides in Boston, Massachusetts. He is

married to a United States citizen and is a stepfather to her two

children. In June 2010, Acosta sought to register permanent

residence or adjust status before the United States Citizenship

and Immigration Services ("USCIS"). In support of his application,

he submitted evidence that he was legally admitted to the United

States in Miami, Florida, on August 27, 2001, when he was thirteen

years old. This evidence included his visa and Form I-94.1

1 The Form I-94 is a document that provides the arrival and
departure record of aliens who are admitted to the United States.

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 In August 2011, USCIS denied his application on the basis

that his visa and Form I-94 were fraudulent. That same day, Acosta

was placed in removal proceedings upon receiving a Notice to Appear

("NTA") from the Department of Homeland Security ("DHS") as an

alien "present in the United States without being admitted or

paroled." Before the IJ, Acosta argued that he need not show that

his documents are authentic to prove that he was admitted to the

United States. Rather, the BIA has interpreted "admitted" to

include situations where "an alien . . . physically presents

[himself] for questioning and makes no knowing false claim to

citizenship . . . even though [he] volunteers no information and

is asked no questions by the immigration authorities."2 Matter of

Quilantan, 25 I. & N. Dec. 285, 293 (BIA 2010). Emphasizing his

young age at the time of his alleged admission in 2001, Acosta

asserts that he was unaware that his documents were fraudulent.

A. Acosta's Evidence

Acosta appeared twice for hearings before the IJ, in

July and October 2012. To support his argument that he was

admitted to the United States, Acosta submitted affidavits from

himself, his father, and his uncle, and Acosta testified during

the July hearing. At the hearing, he explained that he had entered

2 Neither party disputes this interpretation of "admitted."

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the United States, at the age of thirteen, on August 27, 2001.

According to Acosta's testimony, his uncle and primary caretaker

at the time, Julio César Acosta-Salinas ("Julio César"), had

obtained a visa and passport for him. Julio César later escorted

Acosta to the airport in Medellín, Colombia. There, Julio César

met with a man identified in Julio César's affidavit as the travel

agent responsible for providing Acosta's travel documents.3 Acosta

testified that he then bid farewell to his uncle and met a female

airline attendant who accompanied him onto the plane. During this

process, he at no point had possession of his passport; rather,

the airline attendant was responsible for his travel documents.

Julio César's affidavit largely corroborates this testimony.

Acosta stated that he landed in Miami that afternoon.

Upon arrival, the airline attendant escorted him to an immigration

official and gave the official Acosta's documents for inspection.

Acosta was not questioned by the official, who communicated with

the airline attendant instead. Another airline attendant then

accompanied Acosta on a flight from Miami to Boston,

Massachusetts.4 Acosta stated that, after he landed in Boston,

3 As discussed herein, Acosta did not mention this individual in
his affidavit.
4 Whereas Acosta's testimony from his direct examination seems to
suggest that the same flight attendant accompanied him from
Medellín to Miami and then from Miami to Boston, during his cross-
examination and in his affidavit, Acosta stated that a different

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his father, Omar Alberto Acosta-Salinas ("Acosta, Sr."), who was

residing in Massachusetts at the time, greeted him at the airport.

Acosta testified that the flight attendant held his travel

documents on the second flight and gave these papers to his father

upon their arrival. Acosta, Sr.'s affidavit is consistent with

this testimony.

Acosta avers that he has not left the United States since

his arrival in 2001. Acosta testified that he first learned that

his travel documentation was fraudulent when he met with USCIS to

discuss his application for permanent residence. Following the

hearing before the IJ, Acosta submitted a supplemental memorandum

indicating that he took a favorable polygraph examination that

corroborated his account of being inspected and admitted to the

United States in Miami in August 2001.

B. The Government's Evidence

The Government sought to show that Acosta was not

admitted to the United States in 2001 through the testimony of two

expert witnesses, Robert Murray, an Enforcement Officer with

United States Customs and Border Protection, and Heather Hoover,

a forensic document examiner.

flight attendant escorted him on his second flight. While we note
this discrepancy, it has no bearing on our decision today.

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 Murray's Testimony

Murray testified that he searched DHS's systems and

found no record of Acosta's original Form I-94, which "would

suggest that the document was not lawfully issued." He explained

that, typically, after an alien is admitted to the United States,

his Form I-94 is sent to a centralized processing center and

manually entered into the system. He also acknowledged that a

Form I-94 could be lost before being entered into the system.5

Reviewing Acosta's visa, Murray determined that the visa

number was valid but that it was associated with a different

individual who entered the United States in November 2001. When

asked how Acosta's name and biographical information were

transposed onto the visa, Murray reasoned that the visa may have

been "washed," a process by which biographical data is removed

from the visa and new data reprinted. Based on his analysis of

Acosta's visa and his understanding of DHS systems, Murray attested

that he did not believe there is "any plausible way" that Acosta

5 Acosta testified that, at some point during these proceedings,
he applied for a replacement Form I-94. The Form I-94 sent by
immigration authorities indicated that he entered the United
States on August 7, 2000. Acosta could not account for the
discrepancy in entry dates. Murray testified that the Form I-94
was associated with another individual by the name of Jhonatan
Acosta, who is a citizen of Mexico. Murray described this mistake
as "a clerical error."

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could have used this visa to be inspected or admitted to the United

States.

Murray also reviewed a May 2002 visa application for

Acosta created in Bogotá, Colombia, and submitted to the State

Department. The record reveals that the application was refused

on May 29, 2002. On direct examination, Murray stated that, to

the best of his knowledge, Acosta would have needed to be present

in Colombia in 2002 to apply for the visa. On cross-examination,

however, Murray conceded that he did not know whether a thirteen-

to fourteen-year old individual would have been required to appear

in person to apply for a visa in 2002.

Hoover's Testimony

Hoover testified that the admission stamps on Acosta's

Form I-94 and passport were counterfeit based on an analysis of

the ink. She noted that the stamp typically used on Form I-94s

should flash under ultraviolet light and that the stamp on Acosta's

form had no such ultraviolet reaction. Similarly, Hoover explained

that the stamp on Acosta's passport, when viewed under ultraviolet

light, suggested that "the fluorescing feature of this stamp was

simulated by brushing or placing a substance on top of the stamp

impression to give it the appearance of fluorescing."

Hoover also attested that Acosta's visa was a genuine

visa that had been modified. The visa number, which is impressed

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into the paper, was unaltered. The original biographical

information, however, would have been imprinted in black toner ink

which "rests on top of the document" rather than being absorbed

into the paper. Accordingly, visas such as Acosta's are

"susceptible to being washed." Using an infrared light, Hoover

could detect previous entries under Acosta's information. Based

on this analysis, Hoover testified that Acosta's biographical data

had been printed onto the visa after the previous information was

erased.

C. The IJ's and BIA's Decisions

The IJ determined that Acosta had failed to establish

that he is lawfully present in the United States following a prior

admission. 8 U.S.C. § 1229a(c)(2). The IJ acknowledged that

Acosta's testimony was corroborated by the affidavits of Acosta,

Sr. and Julio César. But he declined to give any weight to Acosta's

polygraph examination and noted an "internal discrepancy" between

Acosta's testimony and affidavit: whereas Acosta testified that

Julio César had met a gentleman outside the airport, he made no

mention of this individual in his affidavit.

Ultimately, the IJ was persuaded by the Government's

argument that Acosta was not admitted to the United States. He

credited the Government's evidence that Acosta's visa had been

used to enter the United States in November 2001, which suggests

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that Acosta could not have used this visa to enter the United

States three months earlier, in August 2001. The IJ also

acknowledged a report submitted by Hoover in which she observed

that the "2001" in the United States Consulate Bogotá stamp on

Acosta's passport had been changed from "2002." This evidence

corroborated the Government's argument that Acosta had applied for

a visa in 2002, and not 2001, and that he therefore was in Colombia

in 2002 (although the IJ acknowledged that there was some

uncertainty as to whether an individual of Acosta's age would have

needed to appear in person to apply for a visa). In addition, the

IJ credited the Government's evidence that the admission stamps on

Acosta's Form I-94 and passport were counterfeit and therefore did

not indicate whether Acosta had been inspected and admitted. Based

on this evidence, the IJ determined that Acosta had failed to

demonstrate that he was inspected and admitted to the United States

on August 27, 2001.6

Acosta appealed the IJ's conclusion that he was

removable to the BIA. The BIA affirmed the IJ's decision.

Providing a thorough overview of the Government's evidence, the

BIA concluded that the IJ had not clearly erred in finding Acosta's

6 The IJ also determined that Acosta was statutorily ineligible
for an adjustment of status under INA § 245(a) and failed to meet
his burden of proof in demonstrating that he merits voluntary
departure. Neither of these conclusions are at issue on appeal.

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testimony not credible. Further, the BIA found no error in the

IJ's decision to accord no weight to Acosta's favorable polygraph

test, noting that such a determination was within the IJ's

discretion. Acosta now petitions for judicial review under 8

U.S.C. § 1252(b)(2).

II. Analysis

A. Standard of Review

"[W]e review the agency's factual findings, including

credibility determinations, under the deferential substantial

evidence standard." Jabri v. Holder, 675 F.3d 20, 24 (1st Cir.

2012). Under this standard, we "uphold[] that decision if it is

'supported by reasonable, substantial, and probative evidence on

the record considered as a whole.'" Mihaylov v. Ashcroft, 379

F.3d 15, 17 (1st Cir. 2004) (quoting INS v. Elías-Zacarías, 502

U.S. 478, 481 (1992)). Where "the BIA has written separately while

deferring to and affirming the decision of an IJ, we review both

the BIA's decision and the relevant portions of the IJ's decision."

Kartasheva v. Holder, 582 F.3d 96, 106 (1st Cir. 2009) (quoting

Lutaaya v. Mukasey, 535 F.3d 63, 70 (1st Cir. 2008)).

B. Adverse Credibility Determination

Under INA § 212(a)(6)(A)(i), "[a]n alien present in the

United States without being admitted or paroled . . . is

inadmissible." 8 U.S.C. § 1182(a)(6)(A)(i). Here, Acosta bears

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the burden of establishing, by clear and convincing evidence, that

he is lawfully present in the United States following a prior

admission. Id. § 1229a(c)(2)(B).

Acosta contends that the IJ erred in determining that

Acosta's testimony was not credible and giving inordinate weight

to Murray's and Hoover's expert testimony.7 To be sure, "[a]n

alien's credible testimony, standing alone, may sustain his burden

of proving eligibility for withholding of removal. But evidence

that the factfinder supportably characterizes as incredible may be

either disregarded or discounted." Pan v. González, 489 F.3d 80,

86 (1st Cir. 2007) (citation omitted). Here, the IJ's and BIA's

determinations were based on considerable evidence regarding the

validity of Acosta's travel documents: indeed, "[t]he IJ did not

deal in broad generalizations but relied on a specific and well-

articulated litany of identified inconsistencies in the

petitioner's story." Id. This evidence included substantial

testimony and reports suggesting that Acosta's travel documents

7 As the IJ noted, the REAL ID Act, Pub. L. No. 109-13,
§ 105(d)(2)(4)(C), 119 Stat. 231, 304 (2005), applies here because
Acosta's application was filed after the effective date of the
Act. Kartasheva, 582 F.3d at 104 n.7. "Under the Real ID Act, a
trier of fact may base an adverse credibility determination on any
inconsistency in the record that has a bearing on the petitioner's
veracity, 'without regard to whether the inconsistency goes to the
heart of the applicant's claim.'" Jabri, 675 F.3d at 24
(alterations omitted) (quoting 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1231(b)(3)(C)).

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were falsified, as well as information that directly contradicted

Acosta's claim that he entered the United States in August 2001,

including a 2002 visa application and evidence that another

individual used his visa to enter the United States in November

2001.

Nor has Acosta "provide[d] a meritorious explanation for

the inconsistencies." Conde Cuatzo v. Lynch, 796 F.3d 153, 156

(1st Cir. 2015). The IJ and BIA did not err in disregarding

Acosta's unsubstantiated argument that these many inconsistencies

were due to administrative error. Indeed, the IJ gave Acosta an

additional opportunity to explain the inconsistent documentation.

Following the October hearing, the IJ had the government locate

the immigration official associated with the stamp number on

Acosta's Form I-94 to confirm that the official was not involved

in smuggling or any other wrongdoing. Only after the Government

found this official, who submitted an affidavit averring that he

had not engaged in misconduct and did not recall admitting Acosta

in 2001, did the IJ issue its decision.

Acosta faults the IJ and BIA for considering his

inconsistency in testifying that his uncle met a man from the

travel agency at the airport but omitting this individual from his

affidavit. Standing alone, such an inconsistency likely would be

insufficient to support a finding that Acosta was removable. See

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Jabri, 675 F.3d at 25 (remanding where inconsistencies identified

by the IJ were "not direct inconsistencies"); Kartasheva, 582 F.3d

at 106 (remanding where the petitioner "did not change her story

during the asylum interview but simply omitted small details").

But the IJ did not err in considering an otherwise minor

inconsistency in the broader context of substantial evidence that

Acosta's documentation was fraudulent. See Pan, 489 F.3d at 86

("Some of these inconsistencies, in isolation, may seem like small

potatoes. What counts, however, is that their cumulative effect

is great.").

Acosta also contends that, having entered the United

States at thirteen, he cannot explain how he was admitted using

these documents and asserts that his own testimony, consistent

with his father's and uncle's accounts, should carry the day. This

court is sympathetic to Acosta's argument. The events at issue

took place when Acosta was only thirteen, and his testimony, along

with that of his uncle and father, suggest that he was not

responsible for his travel documentation. But Acosta's age at the

time of entry cannot relieve him of his burden of showing that he

was admitted to the United States, and -- as the IJ and BIA noted

-- his failure to explain the holes in his story is fatal to his

claim.

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C. Favorable Polygraph Examination

Next, Acosta faults the BIA for summarily affirming the

IJ's decision to disregard his favorable polygraph examination.

Acosta's argument is without merit. The BIA provided a reasoned

explanation for its determination that the IJ did not err in

weighing the polygraph evidence, noting that the IJ "was in the

best position to observe the respondent and make determinations

regarding his credibility." The BIA also explained that decisions

as to the weight of the evidence fall well within the IJ's

discretion.

This reasoning is well-supported under our law. As the

BIA noted, the IJ has "broad discretion over the conduct of

immigration court proceedings." Condo Cuatzo, 796 F.3d at 156.

And while a due process violation may arise from an IJ's decision

to exclude evidence, "the trial judge must be accorded some

flexibility in his efforts to ensure that speculation and surmise

do not become proxies for probative evidence." Pulisir v. Mukasey,

524 F.3d 302, 311 (1st Cir. 2008). Polygraph results have long

been considered of dubious value, and the IJ did not err in

declining to give Acosta's polygraph examination any significance

in his weighing of the evidence. Cf. United States v. Rodríguez-

Berríos, 573 F.3d 55, 73 (1st Cir. 2009) ("Polygraph results are

rarely admissible at trial."); deVries v. St. Paul Fire & Marine

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Ins. Co., 716 F.2d 939, 944-45 (1st Cir. 1983) (finding that the

district court did not err in granting motion to exclude evidence

regarding the refusal to take a polygraph as "polygraph evidence

has long been considered of dubious scientific value").

III. Conclusion

Standing alone, Acosta's testimony, corroborated by

affidavits from his father and his uncle, supports his version of

events that he was admitted to the United States in Miami in 2001.

But Acosta has failed to explain the many inconsistencies in his

travel documentation, and neither the IJ nor BIA erred in crediting

the Government's substantial evidence rebutting Acosta's own

account. The petition is denied.8

Denied.

8 We nevertheless believe that this petition presents an instance
where the Government should consider whether to exercise its
prosecutorial discretion to avoid the harsh result that Acosta now
faces. Although the law compels us to deny Acosta's petition, we
note our discomfort with this result. The IJ himself noted that
the Government "seem[ed] to be spending a lot of effort regarding
the entry of a 13-year-old in the United States" and asked why DHS
had devoted so much energy to this case. We too question the
Government's commitment to ensuring that Acosta, who has a clean
record and has formed a family here since his arrival over a decade
ago, can likely never return to his adopted home. While it need
not take our suggestion, we encourage the Government to reconsider
its position in this case.

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