United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2004
Charles R. Fulbruge III
Clerk
No. 03-60385
Summary Calendar
MANUELA GONZALEZ-DE VIEZCA; FELIX VIEZCA-SALAZAR; FELIX
VIEZCA-GONZALEZ; MELISSA VIEZCA-GONZALEZ,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A74 375 385
A74 374 998
A74 375 387
A74 375 389
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Petitioners Manuela Gonzalez-De Viezca (“Manuela”), Felix
Viezca-Salazar (“Felix”), and their two minor children petition
this court for review of the Board of Immigration Appeal’s (“BIA”)
summary affirmance of the immigration judge’s (“IJ”) denial of
their requests for suspension of deportation. The BIA made the
IJ’s decision the final agency determination, so we review the IJ’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
findings and conclusions. See Efe v. Ashcroft, 293 F.3d 899, 903
(5th Cir. 2002).
Manuela and the children argue that the IJ erred in concluding
that they had not established eligibility for deportation because
they had failed to establish the required seven years of continuous
physical presence in the United States. Manuela first argues that
her admission of the facts alleged in the order to show cause,
particularly the alleged date of entry, conclusively establishes
those facts. We are unpersuaded by her arguments, and we also note
that the order to show cause alleged only that she and the children
had entered the United States “on or about” a specified date. We
conclude that this admission did not establish the actual date she
and the children entered the United States.
Manuela next argues that her own testimony was sufficient to
establish the date of entry and that the IJ erred by discounting
her testimony because it was “self-serving.” The BIA has held that
an alien’s testimony should not be disregarded simply because it is
“self-serving.” See, e.g., Matter of S-A-, 22 I. & N. Dec. 1328,
1332 (2000) (citing cases). The BIA also has held, however: “We
not only encourage, but require the introduction of corroborative
testimonial and documentary evidence, where available.” Id. The
alien bears the burden of demonstrating eligibility for suspension
of deportation. See Hernandez-Cordero v. INS, 819 F.2d 558, 560
(5th Cir. 1987) (en banc). Our review of the record suggests that,
contrary to Manuela’s assertion, the IJ was more concerned with the
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lack of corroborating evidence than with the “self-serving” nature
of her testimony. Manuela has not shown that the evidence in the
record compels the contrary conclusion that she established the
required seven years of continuous presence. See Carbajal-Gonzalez
v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (under “substantial
evidence” standard, findings will be affirmed unless the “evidence
compels a contrary conclusion”).
As the rest of the family was ineligible for suspension of
deportation, the IJ concluded that Felix could not establish that
he would suffer “extreme hardship” if he too were denied suspension
of deportation. We lack jurisdiction to review this conclusion.
See Moosa v. INS, 171 F.3d 994, 1012-13 (5th Cir. 1999) (denials of
suspension based on the “extreme hardship” element are
discretionary decisions not subject to review).
All members of the family challenge the BIA’s summary
affirmance of the IJ’s decision, using the “streamlining”
provisions now found at 8 C.F.R. § 1003.1(e)(4)(i). We have held
that the use of the summary affirmance procedures does not raise
the inference that the BIA did not conduct the required review.
See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003). In
addition, summary affirmance without opinion is not permitted to
include a discussion of the IJ’s reasoning or a discussion of the
arguments raised on appeal. See 8 C.F.R. § 1003.1(e)(4)(ii)
(stating that an affirmance without opinion “does not necessarily
imply approval of all of the reasoning of” the decision below and
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that Board members are prohibited from including their own
explanation or reasoning in the order).
The petition for review includes requests for costs and
attorney’s fees pursuant to the Equal Access to Justice Act (EAJA).
See 28 U.S.C. § 2412 (EAJA). An application for attorney’s fees
under the EAJA must be accompanied by proof that the applicant has
prevailed. See 5TH CIR. R. 47.8.2(a). As we deny the petition for
review, the petitioners do not qualify for an award of attorney’s
fees.
PETITION FOR REVIEW DENIED; REQUEST FOR COSTS AND FEES DENIED.
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