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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10901
________________________
Agency No. A077-888-948
KELVIN ORTIZ-BOUCHET,
a.k.a. Kelvin Ortiz,
EDITH CAROLINA MALPICA-ZAPATA,
a.k.a. Edith Malpica,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 23, 2013)
Before DUBINA, Chief Judge, BARKETT and KLEINFELD, * Circuit Judges.
PER CURIAM:
*
Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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Kelvin Ortiz-Bouchet (“Ortiz”) and his wife, Edith Malpica-Zapata
(“Malpica”), petition for review of an order by the Board of Immigration Appeals
(“BIA”) affirming the Immigration Judge’s (“IJ”) order of removal, pursuant to 8
U.S.C. § 1227(a)(1)(A), 1 on the grounds that they were inadmissible at the time of
their adjustment of status. First, the IJ found that Ortiz and Malpica were
inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because they were not in
possession of valid entry documents at the time of their adjustment of status.
Second, the IJ found that Ortiz was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i)
because he procured the immigration documentation he did have by fraud or
willful misrepresentation of a material fact. Finally, the IJ found that Malpica was
inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II) because she sought admission
into the United States within ten years of departing the United States after being
unlawfully present there for one year or more.2
1
An immigrant is subject to removal if, “at the time of entry or adjustment of status[, he]
was within one or more of the classes of aliens inadmissible by the law existing at such time.” 8
U.S.C. § 1227(a)(1)(A).
2
When, as here, the BIA summarily affirms the IJ’s decision without opinion, we review
the IJ’s opinion. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). Findings
of fact are reviewed under the substantial evidence test and “we must affirm the [IJ’s] decision if
it is supported by reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. (internal quotation omitted). We review questions of statutory interpretation de
novo. Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1365 (11th Cir. 2011). In conducting this
review, we look first to the language of the statute to determine whether it “has a plain and
unambiguous meaning with regard to the particular dispute in the case.” Id. (internal quotation
omitted). If the statutory language is unambiguous, “we accord no deference to the BIA’s
interpretation of” the statute. Id. at 1367 n.3. On the other hand, when the statute is silent or
2
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I. Inadmissibility Under 8 U.S.C. § 1182(a)(7)(A)(i)(I)
We initially find that the IJ erred as a matter of law in finding Ortiz and
Malpica inadmissible pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) because that
section only applies to applicants for admission and not to immigrants like Ortiz
and Malpica who sought post-entry adjustment of status while already in the
United States. Under § 1182(a)(7)(A)(i)(I), an immigrant is inadmissible if “at the
time of application for admission [he] is not in possession of a valid unexpired
immigrant visa . . . or other valid entry document [.]” 8 U.S.C. §
1182(a)(7)(A)(i)(I). We have previously held that the definition of “admission” in
8 U.S.C. § 1182(h) is unambiguous and “does not encompass a post-entry
adjustment of status.” Lanier, 631 F.3d at 1366. 3 We now hold the same in
regards to § 1182(a)(7)(A)(i)(I).
In this case, Ortiz and Malpica were not outside the United States seeking
entry, but rather already in the United States and seeking an adjustment of status
permitting them to remain. The IJ did not recognize this distinction and sustained
the § 1182(a)(7)(A)(i)(I) charge against them because they did not have valid
ambiguous with respect to a specific issue, “we are obliged to defer to the BIA’s interpretation . .
. if that interpretation is reasonable.” Cadet v. Bulger, 377 F.3d 1173, 1185 (11th Cir. 2004).
3
The government argues that we should defer to the BIA’s interpretation of “admission”
as encompassing post-entry adjustment of status. See Matter of Guillot, 25 I. & N. Dec. 653, at
*1-2 (BIA 2011). However, as we found in Lanier, the statutory language referencing
“admission” is unambiguous and we thus accord no deference to the BIA’s interpretation. See
Lanier, 631 F.3d at 1367 n.3.
3
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immigration documents at the time of their post-entry adjustment of status.
Because Ortiz and Malpica were not applicants for admission within the meaning
of § 1182(a)(7)(A)(i)(I), the IJ erred in applying this section to them as a basis for
removal. We grant Ortiz and Malpica’s petition for review as to this claim and
vacate the order of removal entered on this basis.
II. Inadmissibility Under 8 U.S.C. § 1182(a)(6)(C)(i)
An immigrant who has procured a visa, other documentation, or admission
into the United States “by fraud or willfully misrepresenting a material fact” is
inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). The IJ found that an individual named
Marciel Cordero was recommended to Ortiz as someone who could “solve [his and
Malpica’s] status problem” by filing a religious petition. Ortiz hired Cordero and
Cordero then filed a petition for a religious visa on Ortiz’s behalf that included
several fraudulent documents indicating that Ortiz was an ordained minister, which
he was not. During the removal proceedings, Ortiz presented an un-rebutted
statement that he had never seen the documents that Cordero filed and that his
signature on the documents was forged. The IJ found that Ortiz did not personally
willfully misrepresent a material fact. Nonetheless, after stating that “the Court
was unable to sustain by clear and convincing evidence any allegation or charge
that [Ortiz] willfully misrepresented a material fact,” the IJ held that Ortiz must be
4
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deemed to have had full knowledge of the fraudulent documentation Cordero
submitted and was, thus, inadmissible under § 1182(a)(6)(C)(i).
The term “fraud” is not defined in the Immigration and Nationality Act
(“INA”), but the BIA has held that fraud “consist[s] of false representations of a
material fact made with knowledge of its falsity and with intent to deceive the
other party.” Matter of G-G-, 7 I. & N. Dec. 161, 164 (BIA 1956). Additionally,
for a representation to constitute fraud, “[t]he representation must be believed and
acted upon by the party deceived to his disadvantage.” Id. The BIA has defined
“willful misrepresentation” in almost identical terms, except that willful
misrepresentation does not require proof “that the person to whom the
misrepresentation was made was motivated to action because of the
misrepresentation,” id., and does not require “intent to deceive,” Matter of Kai
Hing Hui, 15 I. & N. Dec. 288, 290 (BIA 1975). Because willful
misrepresentation is an essential element of both fraud and willful
misrepresentation and because the IJ found that Ortiz did not make any willful
misrepresentation, Ortiz is not inadmissible under § 1182(a)(6)(C)(i).
The government argues that it must be presumed that Ortiz had knowledge
of the fraudulent petition filed by Cordero and that fact is sufficient to sustain the §
1182(a)(6)(C)(i) charge. However, the BIA has made clear that fraud requires an
5
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actual misrepresentation. See Matter of G-G-, 7 I. & N. Dec. at 164.4 There is not
substantial evidence in the record taken as a whole that Ortiz made, knew of, or
authorized Cordero’s misrepresentation on Ortiz’s behalf. Accordingly, we grant
Ortiz’s petition as to this claim and vacate the order of removal entered on this
basis.
III. Inadmissibility Under 8 U.S.C. § 1182(a)(9)(B)(i)(II)
An immigrant who is not a lawful permanent resident, has been unlawfully
present in the United States for one year or more, and seeks admission to the
United States within ten years of the immigrant’s departure or removal from the
United States is inadmissible. 8 U.S.C. § 1182(a)(9)(B)(i)(II). In Matter of
Arrabally, which was decided while this appeal was pending before this Court, the
BIA held “that an alien who has left and returned to the United States under a grant
of advance parole has not made a ‘departure . . . from the United States’ within the
meaning of [§ 1182(a)(9)(B)(i)(II)].” 25 I. & N. Dec. 771, 779 (BIA 2012). 5
4
The government argues that defining fraud as requiring a willful misrepresentation
would render the term “fraud” superfluous because the statute permits a finding of
inadmissibility if the immigrant has obtained immigration documents “by fraud or willfully
misrepresenting a material fact.” 8 U.S.C. § 1182(a)(6)(C)(i) (emphasis added). However, when
a term is ambiguous – as “fraud” is in this statute – we must defer to the BIA’s interpretation.
See Cadet, 377 F.3d at 1185.
5
Generally, when the BIA has not had an opportunity to consider an issue that a
petitioner puts before it, we should remand the case to the BIA for further examination. Calle v.
U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007). However, in “rare circumstances” where
the issue is a purely legal one, a remand is not necessary. Id. at 1330 (declining to remand where
the undecided issue was a legal question and presented “an objective, procedural inquiry”).
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The IJ found that Malpica was removable under § 1182(a)(9)(B)(i)(II)
because she had left the United States on July 18, 2003. However, she left
pursuant to a grant of advance parole, and was paroled back into the United States
on July 31, 2003. Under Matter of Arrabally, her exit pursuant to a grant of
advance parole does not qualify as a “departure” within the meaning of §
1182(a)(9)(B)(i)(II) and Malpica is, thus, not inadmissible under this section.
Thus, this charge of removability cannot be sustained.
Accordingly, we grant Ortiz and Malpica’s petition and vacate the BIA’s
order of removal.
PETITION GRANTED.
Because the statutory interpretation at issue here is a purely legal question, we need not remand
the case to the BIA.
7