09-5315
Ali v. Holder
BIA
USCIS AAO
A073 646 265
A093 081 239
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of August, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_______________________________________
MD ARSHED ALI, AKA MOHAMMAD ARSHED ALI,
Petitioner,
v. 09-5315
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Anthony W. Norwood, Senior
Litigation Counsel, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Mohammad Arshed Ali, a native and citizen of
Bangladesh, seeks review of a December 8, 2009 order of the
BIA ordering Ali’s removal and, in that review, see 8 U.S.C.
§ 1255a(f)(4)(A), seeks review of an April 28, 2009 order of
the Administrative Appeals Office (“AAO”) of the United
States Citizenship and Immigration Services (“USCIS”)
denying his application for status as a permanent resident
under the Legal Immigration Family Equity Act of 2000 (“LIFE
Act”), Pub. L. 106-553, 114 Stat. 2762 (2002). In re MD
Arshed Ali, No. A073 646 265 (B.I.A. Dec. 8, 2009); In re
Mohammad Arshed Ali, No. A093 081 239 (USCIS AAO Apr. 28,
2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
The AAO denied Ali’s application for legalization under
the LIFE Act because it found that his 1994 asylum
application contradicted his claim that he entered the
United States in 1981. Ali argues that this was error
because the facts alleged in his asylum application were
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false. Ali further argues that the AAO failed to consider
the fact that he applied for legalization under the LIFE Act
before he applied for asylum.
To establish his eligibility for legalization under the
LIFE Act, Ali was required to establish that he entered the
United States before January 1, 1982. See 8 U.S.C. §
1255a(a)(2)(A). “[T]he findings of fact and determinations
contained in [the administrative] record shall be conclusive
unless the applicant can establish abuse of discretion or
that the findings are directly contrary to clear and
convincing facts contained in the record considered as a
whole.” 8 U.S.C. § 1255a(f)(4)(B).
In this case, the AAO did not err in concluding that
the documents that Ali submitted to the AAO to show that he
entered the United States in 1981 were contradicted by his
asylum application, which stated that he left Bangladesh in
1989 and described Ali’s activities in Bangladesh throughout
the 1980s. The AAO additionally did not err in concluding
that Ali’s admission that his asylum application was false
called into question the reliability of the documents he
submitted in support of his legalization application. Cf.
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.
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2007) (relying on the doctrine falsus in uno, falsus in
omnibus to conclude that the BIA does not abuse its
discretion in declining to credit documentary evidence
submitted by an alien who was found not credible by an IJ).
Contrary to Ali’s claim that the AAO decision fails to
accord collateral estoppel effect to the IJ’s decision that
Ali’s statements were false, the falsity of his previous
asylum application does not establish the truth of his
legalization claim.
Additionally, while Ali argues that the AAO failed to
consider the fact that he first applied for legalization
before he filed his application for asylum, the record does
not support this claim. Cf. Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 338 n. 17 (2d Cir. 2006) (presuming
that an administrative adjudicator has taken into account
evidence in the record unless the record compellingly
suggests otherwise).
Accordingly, the AAO did not err in concluding that Ali
failed to prove that he entered the United States before
January 1, 1982, and therefore that he did not establish his
eligibility for legalization under the LIFE Act. See 8
U.S.C. § 1255a(f)(4)(B). For this reason, the petition for
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review is DENIED. As we have completed our review, the
pending motion for a stay of removal in this petition is
DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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