Beltran-Resendez v. Immigration & Naturalization Services

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-60469

AMERICO BELTRAN-RESENDEZ,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICES,

Respondent,

Petition for Review of an Order of the
Board of Immigration Appeals
April 3, 2000

Before KING, Chief Judge, REAVLEY, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This case involves a petition to review the Board of Immigration Appeals (“BIA”) ruling

which affirmed the Immigration Judge’s denial of the petitioner’s request for registry. For reasons

assigned below, we deny the petition.

FACTUAL AND PROCEDURAL HISTORY

Americo Beltran-Resendez (“Beltran-Resendez”) is a 30 year-old native and citizen of

Mexico. He entered the United States in 1970 without being inspected by an immigration officer.

He married a United States citizen, and has three children who are United States citizens.

In 1995, the Immigration and Naturalization Services (“INS”) issued Beltran-Resendez an

order to show cause why he should not be deported. The order alleged that Beltran-Resendez was

deportable as a native and citizen of Mexico who entered the United States in 1970 without being

inspected by an immigration officer. Beltran-Resendez conceded his deportability, but notified the

Immigration judge that he intended to file an application for registry under § 249 of the Immigration

and Nationality Act, 8 U.S.C. § 1259.
In response to Beltran-Resendez’s application for registry, the INS submitted documents

indicating that Beltran-Resendez was sentenced to 65 days in jail in March 1987 for possession of

PCP, and was convicted for felony robbery and sentenced to 150 days in jail and 36 months

probation. Furthermore, the immigration judge received documents indicating that Beltran-Resendez

pleaded guilty in 1996, approximately a year after the order to show cause was filed, to four counts

of falsely claiming to be a United States Citizen and four counts of using a false social security

number on an Employment Eligibility Verification form in violation of 18 U.S. C. § 911, 42 U.S.C.

§ 408. At the order to show cause hearing, Beltran-Resendez did not challenge the submission of the

documentation into evidence nor did he contest the underlying convictions.

The immigration judge determined that Beltran-Resendez failed to sustain his burden of proof

that he was nonineligible for citizenship due to his criminal record. The immigration judge also

pretermitted Beltran-Resendez from introducing testimony to demonstrate his “good moral character”

due to his convictions for giving false information on an Employment Verification Form.

Consequently, the immigration judge denied Beltran-Resendez’s application for registry and issued

an order for his deportation. Beltran-Resendez appealed the immigration judge’s decision to the BIA,

which affirmed the immigration judge in a per curiam opinion. Beltran-Resendez now seeks review

of the rulings below.

DISCUSSION

Beltran-Resendez claims that the immigration judge erroneously denied his application for

registry. Specifically, he claims that the immigration judge improperly pretermitted him from

presenting evidence to demonstrate his good moral character.

A. Jurisdiction

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-

132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

(“IIRIRA”), Pub. L. No. 194-208, 110 Stat. 2009, have placed significant limitations on appellate

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jurisdiction to review final orders of the BIA. See Witter v. INS, 113 F.3d 549, 552, n.4 (5th Cir.

1997). However, those limitations are not applicable to deportation proceedings initiated before April

1, 1997. See IIRIRA § 309 (c) ( “§ 309(c)” or “section 309(c)”). Because Beltran-Resendez

deportation proceedings commenced before April 1, 1997, the “new rules” do not apply, but rather

the transitional rules govern. Under the transitional rules, petitions for review from final orders of

deportation entered more than 30 days after enactment of the new rules (October 30, 1996) “must

be filed not later than 30 days after the date of the final order of . . . deportation.” Id. § 309

(c)(4)(C). The record indicates that Beltran-Resendez filed his petition within the 30-day time period.

As such, Beltran-Resendez’s petition is timely, and this court has jurisdiction to review the order

below.

A. Standard of review

Generally, in immigration cases, we review only the decision of the BIA, not that of the

immigration judge. Carbajal-Gonzalez v. INS, 78 F.3d 194 196 (5th Cir. 1997)(citation omitted). We

consider the immigration judge’s decision only to the extent that it affects the BIA’s decision. Id.

We will not disturb a factual finding made below if that finding is supported by substantial evidence.

Fonseca-Leiter v. INS, 961 F.2d 60, 62 (5th Cir. 1992). “The substantial evidence standard requires

only that the [BIA]’s conclusion be based upon the evidence presented and that it be substantially

reasonable.” Wilson v. INS, 43 F.3d 311, 213 (5th Cir. 1995). However, we review questions of law

de novo. Fonseca-Leiter, 961 F.2d at 61.

B. Denial of registry

Beltran-Resendez sought relief below from deportation by applying for registry. “Registry”

permits the Attorney General, in her discretion, to record the lawful permanent residency of eligible

aliens. See 8 U.S.C. § 1259. An applicant seeking registry must demonstrate that (1) he entered the

United States prior to January 1, 1972; (2) he has had his residence in the United States continuously

since such ent ry; (3) he is a person of good moral character, (4) he is nonineligible for citizenship

under 8 U.S.C. § 1182(a)(3)(E) or under 8 U.S. C. § 1182(a) insofar as it relates to criminals,

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procurers and other immoral persons, subversives, violators of the narcotic laws, or smugglers of

aliens, and is not deportable under 8 U.S. C. § 1227(a)(4)(B). See id. The applicant bears the burden

of proving that he satisfies the requirements for registry. See Opie v. INS, 66 F.3d 737, 739 (5th Cir.

1995). The issues before us pertain to the “good moral character” and “nonineligible for citizenship”

requirements.

Good moral character is defined in 8 U.S.C. § 1101(f) (“section 1101(f)” or “§ 1101(f)”).

Section 1101(f) identifies eight categories of conduct that pretermit a finding of good moral

character. Pertinent to this case, § 1101(f) provides that conduct that involves giving false testimony

for the purposes of obtaining any benefits under the Immigration and Nationality Act pretermits a

finding of good moral character. The BIA found that the immigration judge correctly determined that

Beltran-Resendez “lacks good moral character because he attested, under penalty of perjury, that he

is an American citizen on his employment I-9 form.” The immigration judge found that Beltran-

Resendez’s false claim of United States citizenship on his Employment Verification Form was

tantamount to false testimony under § 1101(f). To the extent that the BIA’s conclusion was based

on the immigration judge’s express finding that Beltran-Resendez’s false claim of United States

citizenship on the employment form was tantamount to false testimony under § 1101(f), we disagree

that the false testimony provision under § 1101(f) includes false written statements. The Supreme

Court has construed the term “testimony” to be limited to oral statements made under oath. Kungys

v. United States, 485 U.S. 759, 780, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). Furthermore, in a

recent case the Ninth Circuit observed that “statements [] written on [an] application for suspension

of deportation [] were not statements ‘made by a witness under oath to establish proof of a fact to

a court or tribunal,’ and therefore [do] not qualify as false testimony within the meaning of the

statute.” Bernal v. INS, 154 F.3d 1020, 1023 (9th Cir. 1998)(quoting Phinpathya v. INS, 673 F.2d

1013, 1019 (9th Cir. 1981), rev’d on other grounds, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401

(1984)). As such, we find that a false written statement is not false testimony under § 1101(f).

Nonetheless, we find this error harmless. Beltran-Resendez failed to challenge

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documentation the INS introduced into evidence regarding prior criminal convictions. Therefore, the

BIA correctly concluded that Beltran-Resendez failed to sustain his burden of proof that he was

nonineligible for citizenship under 8 U.S.C. § 1182(a). As such, the BIA’s order, which affirmed the

immigration judge’s pretermission of Beltan-Resendez’s efforts to introduce evidence of good moral

character, is supported by substantial evidence.

CONCLUSION

Petition for review DENIED.