U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Leyba, Gabriel Gomez OHS/ICE Office of Chief Counsel - EAZ
GGLEYBA PLLC Eloy Detention Ctr, 1705 E. Hanna Rd
400 W. Camelback Rd., STE 116 Eloy, AZ 85131
Phoenix, AZ 85013

Name: VASQUEZ-JACOBO, MARCO AN... A 070-719-141

Date of this notice: 8/24/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

; .
.
'I '

Userteam: Docket

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Cite as: Marco Antonio Vasquez-Jacobo, A070 719 141 (BIA Aug. 24, 2017)


U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A070 719 141-Eloy, AZ Date: AUG 2 4 2017

In re: Marco Antonio VASQUEZ-JACOBO a.k.a. Marco Anthony Vasquez

a.k.a. Marcos Anthony Vasquez

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Gabriel G. Leyba, Esquire

APPLICATION: Adjustment of status

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's decision
dated January 10, 2017, 1 finding him removable as charged and denying adjustment of status under
section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). The Department of
Homeland Security (DHS) has not filed a response to the appeal. The record will be remanded.

The respondent asserted in his written statement and in-court testimony that he was waved
through by an immigration officer at the Nogales, Arizona, port of entry when he presented himself
for admission in April 2008 (U at 3; Respondent's Br. at 1-5). The Immigration Judge found that
the respondent was not a credible witness (U at 5). On the basis of this finding, the
Immigration Judge determined that the respondent was removable as charged under section
212(a)(6)(A)(i) of the Act, 8 U.S.C. 1182(a)(6)(A)(i), because the DHS established the
respondent's alienage and because he did not establish his time, place, and manner of entry into
the United States (U at 3-5). The Immigration Judge further determined that the respondent was
not eligible to adjust his status under section 245(a) of the Act because he did not establish he had
been admitted or paroled into the United States (U at 5).

On review, we are persuaded that the Immigration Judge did not provide sufficient reasons for
finding that the respondent was not credible. In general, an Immigration Judge's credibility
assessment will be given significant deference, see, e.g., Singh-Kaurv. INS, 183 F.3d 1147, 1151
(9th Cir. 1999); Matter of A-S-, 21 I&N Dec. 1106, 1111 (BIA 1998), because an
Immigration Judge is in the best position to determine the accuracy, reliability, and truthfulness of
the testimony he or she hears, see Matter of Kulle, 19 l&N Dec. 318, 331 (BIA 1985); see also
Espinoza Ojeda v. INS, 419 F.2d 183 (9th Cir. 1969); Volianitis v. INS, 352 F.2d 766
(9th Cir. 1965). However, an Immigration Judge must offer specific, cogent reasons for finding a
respondent did not testify credibly. See Lei Liv. Holder, 629 F.3d 1154, 1157 (9th Cir. 2011);
Hartooniv. INS, 21 F.3d 336, 342 (9th Cir. 1994).

1 The Immigration Judge initially entered a decision on December 14, 2016. However, the
Immigration Judge issued an amended decision on January 10, 2017. The respondent's Notice of
Appeal challenges the amended decision (Notice of Appeal, at 1).

Cite as: Marco Antonio Vasquez-Jacobo, A070 719 141 (BIA Aug. 24, 2017)
A070 719 141

As the respondent contends, the Immigration Judge did not identify any inconsistencies
betWeen the respondent's testimony, his declaration, and other evidence of record; any portion of
the respondent's testimony that was non-responsive; or any issue with the respondent's demeanor
during his testimony (Respondent's Br. at 8-10). Instead, the Immigration Judge appears to have
based his adverse credibility finding exclusively on the absence of corroborating evidence without
having given the respondent notice of the need for additional evidence and the opportunity to

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provide the same or explain its absence. See Ren v. Holder, 648 F.3d 1079, 1091-92
(9th Cir. 2011) ("An applicant must be given notice of the corroboration required, and an
opportunity to either provide that corroboration or explain why he cannot do so."); see also
Lai v. Holder, 773 F.3d 966, 976 (9th Cir. 2014) ("[W]hen an U's other reasons for finding an
asylum applicant not credible are not supported by substantial evidence, the applicant, being
'otherwise credible,' is entitled to notice that he needs to produce corroborative evidence and an
opportunity to either produce the evidence or explain why it is unavailable.").

Accordingly, we will remand the record for further fact-finding regarding the respondent's
credibility and for further proceedings on the respondent's removability and/or eligibility for relief
from removal. On remand, the Immigration Judge should consider anew whether the respondent
made a lawful entry into the United States after inspection and authorization by an immigration
officer within the meaning of section 101(a)(13)(A) of the Act, whether he is removable under
section 212(a)(6)(A)(i) of the Act, and, if necessary, whether he is eligible for adjustment of status
under section 245(a) of the Act, in light of his new credibility findings. Accordingly, the record
will be remanded. The following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings and for
the entry of a new decision.

2
Cite as: Marco Antonio Vasquez-Jacobo, A070 719 141 (BIA Aug. 24, 2017)
'

l
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
ELOY, ARIZONA

IN THE MATTER OF: ) IN REMOVAL PROCEEDINGS

)
VASQUEZ-JACOBO, Marco A070-719-141

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) FILE NO.:
)
)
RESPONDENT DATE: January 10, 2017
- >

CHARGE: INA 212(a)(6)(A)(i): an alien present in the United States without being admitted
or paroled, or who arrive in the United States at any time or place other than as
designated by the Attorney General.

APPLICATIONS: INA 245(a), Adjustment of Status of an alien inspected and admitted into
the United States to that of an alien lawfully admitted for permanent
residence.

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT:

Gabriel Gomez Leyba, Esquire Assistant Chief Counsel

GGLeyba PLLC Department of Homeland Security
400 W. Camelback Road, Ste. 116 1705 East Hanna Road
Phoenix, Arizona 85013 Eloy, Arizona 85131

MEMORANDUM DECISION AND ORDER OF THE IMMIGRATION COURT

I. PROCEDURAL msTORY

The above-named respondent is a male, native and citizen of Mexico. (Exh. 1, Form 1-
862.) Removal proceedings were commenced against him on April 9, 2016, when the
Department of Homeland Security ("OHS" or "the Department") filed a Notice to Appear
("NTA") against him. (/d.)1 In the NTA, the Department alleged the following:

1. [The respondent is] not a citizen or national of the United States;

2. [He is] a native of Mexico and a citizen of Mexico;

1 The filing of the NTA commenced proceedings and vested jurisdiction with this Court. 8 C.F.R. I003.l4(a).
The respondent conceded proper service of the NTA. In removal proceedings, the NTA shall be served in person on
the alien or, if personal service is not practicable, through service by mail to the alien or the alien's counsel of
record. INA 239; 8 C.F.R. 1003.13. Based upon the respondent's admissions, and the certificate of service
contained in the NTA, the Court finds that the NTA was properly served.
VASQUEZ-JACOBO
A0?0-719-141

, 3. [He] entered in the United States at an unknown location, on an unknown

date;
4. [He] was not then admitted or paroled after inspection by an Immigration
Officer.

(Exh. 1, Form I-862.)

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Based on these allegations, the respondent was charged as subject to removal under
section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or "the Act") as an alien
present in the United States without being admitted or paroled, or, who arrived in the United
States at any time or place other than as designated by the Attorney General. (Id.)

On May 23, 2016, an initial master calendar hearing was held in the respondent's case.
(Hr'g (May 23, 2016).) The respondent admitted factual allegations (1) and (2), but denied
factual allegations (3) and (4), as well as the charge of removability. (Id.) The respondent
expressed no fear of return to his home country and designated Mexico as the country of
removal. (Id.) A prove-up hearing on the contested factual allegations and charges was
scheduled. At the prove-up hearing on July 25, 2016, the Department requested a continuance to
review additional documents submitted by the respondent. (Hr'g (July 25, 2016).) At the prove
up hearing on September 13, 2016, the Department asked for a continuance to research other
information and because it had failed to note that the hearing was a prove-up hearing. (Hr'g
(Sept. 13, 2016).) At the rescheduled prove-up hearing on September 22, 2016, the respondent's
counsel objected the Department's submission of Tab E of Exhibit 2, asserting that its reliability
was undercut by the fact that it erroneously listed alien registration numbers associated with the
respondent, has an incorrect re-entry date, and other errors. (Hr'g (Sept. 22, 2016).) The
Department argued that although it could not bring such evidence to the Court, all the alien
registration numbers present on that document had been verified. (Id) The Court admitted the
document into evidence. (Id.) After hearing the respondent's testimony, the Court found factual
allegations (3) and (4) and sustained the charge of removability. (Id) The respondent again
designated Mexico as the country of removal. (Id.) At a hearing on November 21, 2016, The
Court allowed the respondent to file an application for adjustment of status pursuant to INA
245(a) so that the respondent could maintain arguments for appeal. (Hr'g (Nov. 21, 2016).)

The Court denies the respondent's application for adjustment of status finding that the
respondent did not meet his burden to prove lawful entry into the United States.

II. EVIDENTIARY RECORD

A. Documentary Evidence

The Court carefully considered the entire record of proceeding, even if not specifically
mentioned herein, which includes exhibits one (1) through four (4), containing the parties'
motions, briefs, arid arguments as formally submitted to the Court and as contained in the
Court's file.

I Exh. l I Form I-862, Notice to Appear

VASQUEZ-JACOBO
A070-719-t41

Exh.2 OHS Documents- Immilzration History Documents

Exh. 3 Resp't Proof of Lawful Entry
Exh.4 1-485 Aoolication

B. Testimonial Evidence

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In addition to the documentary evidence submitted to the Court, the Court also carefully
considered respondent's testimony taken on September 22, 2016.

i. Respondent's Testimony

a. Direct Examination

The respondent testified that he first entered the United States in 1982 when he was
approximately five years old. The respondent testified that on April 16, 2007 he appeared before an
Immigration Judge, accepted an order for voluntary departure, and left the United States for Mexico.
The respondent testified that he remained in Mexico for approximately one year and returned to the
United States in April 2008. The respondent entered the United States through the Nogales, Arizona
port of entry and showed the immigration officer his Arizona identification card. The respondent
testified that the officer asked him where he was coming from and where he was going and then let
him enter. The respondent testified that he never implied he was a United States citizen and the
officer never asked him if he was a United States citizen. The respondent testified that he has lived
in the United States since re-entering in 2008.

b. Cross-Examination

On cross-examination, the respondent testified that he does not remember the exact date in
2008 that he re-entered the United States but it was approximately mid-April. The respondent
testified that it was about six p.m.and the sun had begun setting. The respondent testified that he
was the only person at the port of entry other than three immigration officers. The respondent
testified that he could not remember what the officers were wearing or what color their uniforms
were, but he did remember that they had badges with their names on them. The respondent testified
that during his removal proceedings in 2007, he did not claim to have been lawfully admitted in
1982. The respondent conceded that he may have stated that his dad was filing paperwork on his
behalf. The Department asked the respondent why, when he was apprehended in 2016, he claimed
that he was a lawful permanent resident. The respondent explained that "his head wasn't right" and
he had a lot going through his mind due to his wife's condition.

ID. ALIENAGE AND REMOVABILITY

A. Alienage

The respondent makes no claim to United States citizenship, but admitted that he is a
native and citizen of Mexico. (Exh. l, Form 1-862.) Based on the respondent's admissions and
testimony, which is in all material respects corroborated by the evidence of record, (Hr'g (May
23, 2016); Exh. 4, Form 1-485, at l; Exh. 1, Form 1-862), the Court finds that the respondent's
alienage has been established by clear and convincing evidence.

VASQUEZ-JACOBO
A070-]19-141

B. Removability Under Section 212(a)(6)(A)(i)

As the Department established the respondent's alienage, the burden is now on the
respondent to demonstrate by clear and convincing evidence that he entered the United States
lawfully.

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The record shows that the respondent accepted an order of voluntary departure on April
16, 2007. (Exh. 2, Tab B.) The only evidence of the means of the respondent's subsequent entry
is the respondent's own affidavit and testimony, and an employment authorization card and
social security card in the respondent's name. (Hr'g (Sept. 22, 2016); Exh. 3.) The alien
registration number on the employment authorization card, however, does not match any of the
multiple alien registration numbers associated with the respondent. (See Exh. 2, Tab E at 4.)
The respondent claims that he was allowed to cross into the United States solely by showing his
Arizona identification card, and no immigration related documents. (Hr'g (Sept. 22, 2016); Exh.
3.) Based on the above evidence, the Court does not find that the respondent met his burden of
proof to show by clear and convincing evidence that he entered the United States lawfully.

Therefore the Court finds that the respondent's removability pursuant to section
212(a)(6)(A)(i) of the Act has been established by clear and convincing evidence.

IV. RELIEF FROM REMOVAL

A. Burden and Credibility

i. Legal Standard

An alien applying for relief or protection from removal has the burden of establishing
that he or she is eligible for any requested benefit or privilege and that it should be granted in
the exercise of discretion. INA 240(c)(4). If the evidence indicates that one or more of the
grounds for mandatory denial of the application for relief may apply, the alien shall have the
burden of proving by a preponderance of the evidence that such grounds do not apply. 8 C.F.R.
1240.8(d). Generally, the burden to establish by a "preponderance of evidence" is met where
it is established to be probably true. Matter ofE-M-, 20 l&N Dec. 77 (BIA 1989).

As the respondent initially filed an application for adjustment of status after May 11,
2005, the REAL ID Act of 2005 governs these proceedings. Pub. L. 109-13, 119 Stat. 231
(2005) (codified at INA 208(b) & 240(c)(4)(C)); Aden v. Holder, 589 F.3d 1040, 1044 (9th
Cir. 2009); Matter ofJ-Y-C-, 24 I&N Dec. 260, 262 (BIA 2007); Matter of S-B-, 24 l&N Dec.
42, 45 (BIA 2006). Under the REAL ID Act, the testimony of an applicant may be sufficient to
sustain the applicant's burden if "(l) the applicant's testimony is credible; (2) the applicant's
testimony is persuasive; and (3) the applicant's testimony refers to facts sufficient to
demonstrate [the grounds for the relief sought]." Aden, 589 F.3d at 1044. Nonetheless,
"[c]orroborating evidence 'must' be provided where the trier of fact determines that it should
be, 'unless the applicant does not have the evidence and cannot reasonably obtain the
evidence.'" Id at 1045. Thus, the failure to produce such reasonably available corroborating

4
VASQUEZ-JACOBO
AO?O- 719-141

evidence can lead to a finding that the applicant has failed to meet his or her burden of proof.
Id

Under the first prong, the REAL ID Act requires that credibility determinations be made
on the basis of the "totality of the circumstances, and all relevant factors." Shrestha v. Holder,
59 0 F.3d 10 34, 104 0 (9th Cir. 2010); INA 24 0(c)(4)(C), 208(b)(l)(B)(iii). Factors that may
be considered include "demeanor ... candor . . . responsiveness ... plausibility ...

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inconsistency ... inaccuracy ... falsehood ... lack of detail ... but this list is not exhaustive."
Shrestha, 59 0 F.3d at l 04 6. The Court may look "to any 'relevant factor' in assessing credibility
under the 'totality of the circumstances."' Id at 104 0. Accordingly, the Ninth Circuit has held
that in assessing an applicant's credibility an Immigration Judge may consider any evidence in
the record that provides a "legitimate articulable basis to question the [applicant's] credibility."
Singh v. Holder, 6 38 F.3d 1264, 127 2(9th Cir. 2011).

In this regard, the Ninth Circuit has found that an Immigration Judge has a legitimate
basis to question an applicant's credibility if there is evidence in the record that demonstrates
that the applicant has a "history of dishonesty." Sarvia-Quintanilla v. INS, 7 6 7 F.2d 138 7, 139 2
(9th Cir.198 5) (criminal conviction for alien smuggling and lying to INS officials is a legitimate
basis for questioning the credibility of an alien's testimony); see also Enying Li v. Holder, 7 38
F.3d 116 0 (9th Cir. 2013), (holding that an immigration judge may use the maxim "falsus in uno,
falsus in omnibus (i.e. false in one thing, false in everything) " in assessing credibility). The
Ninth Circuit has also determined that "lies and fraudulent documents when they are no longer
necessary for the immediate escape from persecution do support an adverse inference." Singh v.
Holder, 6 38 F.3d 1264, 127 2 (9th Cir. 2011). Furthermore, to determine the consistency of
accounts presented, a Court may look at the following relevant documents:

written and oral statements (whenever made, whether or not under oath, and
considering the circumstances under which such statements were made), the
internal consistency of each statement, the consistency of such statements with
other evidence of record . . . , and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant's claim, or any other relevant factor.

Sections 208(b)(l)(B)(iii), 24 0(c)(4)(C) of the Act.

ii. Credibility Findings

In this instance, the Court has observed the demeanor, candor, and responsiveness of the
respondent in this matter. The Court does not find that the respondent is credible. The
respondent claims that he was able to enter the United States without showing immigration
officers any immigration documents, but only his Arizona identification card. Moreover, the
respondent does not provide any evidence to support this claim. The Court does not find the
respondent's claim that he was allowed to enter the United States without any document save for
an Arizona identification card, in 20 08, credible. Based on the totality of the circumstances and
considering the record of proceeding as a whole, the Court finds that the respondent is not
credible. See Singh v. Gonzales, 491F.3d 1019, 10 24-25 (9th Cir. 20 0 7).

5
,, ' VASQUEZ-JACOBO
A0?0-719-141

B. djustment of Status

Section 245(a) of the Act provides that "[t]he status of an alien who was inspected and
admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe to that of an alien lawfully admitted for
permanent residence if ...the alien is eligible to receive an immigration visa and is admissible to the
United States for permanent residence, and an immigrant visa is immediately available to him at the
time his application is filed".INA 245(a).

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This Court finds that the respondent has not satisfied his burden to prove that he is eligible to
adjust status under INA 245(a). The respondent has failed to demonstrate the very first element of
section 245(a), that he was admitted or paroled-into the United States. Therefore, the respondent is
not eligible to adjust status pursuant to INA245(a).

IV. CONCLUSION

For the above stated reasons, this Court denies the respondent's applications for adjustment
of status under INA 245(a).

Accordingly, the Court will enter the following Orders:

ORDER: IT IS HEREBY ORDERED THAT the respondent's application for adjustment of

status pursuant to INA 245(a) be DENIED;

IT IS FURTHER ORDERED T

ohn W. Davis
United States Immigration Judge

APPEAL RIGHTS: Both parties have the ght to appeal the decision of the Immigration Judge
in this case. Any appeal is due in the s of the Board of Imm igration Appeals on or before
thirty calendar days from the date of service of this decision.

2 The Court previously issued a decision sustaining the charge of removability against the respondent and denying hi
application for adjustment of status on December 14, 2016. The Court, although having ordered the respondent
removed orally at a hearing on November 21, 2016, did not include such an order it in its December 14, 2016,
written decision. This is an amended decision that includes a written order of removal.