26 I. & N. Dec. 765
BIA2016Background
- Respondent (Mexican national) applied for cancellation of removal and voluntary departure; IJ found him removable and denied relief; BIA dismissed appeal and denied motion to remand.
- On his cancellation application respondent disclosed one 2009 DUI conviction but omitted several other arrests/convictions.
- At the merits hearing respondent initially denied any convictions, then—after reminders—admitted one, and only admitted five additional arrests/convictions when DHS confronted him with each specific incident.
- IJ found respondent’s testimony false and him not credible; concluded he lacked good moral character under INA §101(f)(6) because he gave false testimony under oath with subjective intent to obtain immigration benefits.
- BIA affirmed: false oral statements under oath during immigration proceedings bar a finding of good moral character; respondent’s unexplained omissions and admissions when confronted supported an inference of intent to deceive.
- BIA also denied remand for ineffective assistance of counsel: respondent failed Lozada requirements, prior counsel’s performance was not shown deficient, and respondent had not established prima facie eligibility for other relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether false oral statements under oath during IJ proceedings bar a showing of good moral character under INA §101(f)(6) | Gomez-Beltran argued his inconsistent answers resulted from vague questions or confusion, not intent to deceive | DHS argued oral false testimony under oath, even if immaterial, disqualifies good moral character when made with subjective intent to obtain benefits | Held: False testimony under oath with subjective intent to obtain benefits bars good moral character; respondent’s denials and later admissions when confronted demonstrated intent to deceive |
| Whether respondent’s denials were mere memory lapses or due to interpreter/competency issues | Respondent claimed vague/open questions and interpreter mistakes caused inconsistencies | DHS maintained questions were clear, interpreter competent, and respondent understood proceedings | Held: Questions were clear; no indicia of incompetence or interpreter failure; denials not excused by confusion |
| Whether respondent merits discretionary relief despite statutory bar | Respondent argued equities (residence, family ties) support favorable discretion | DHS argued criminal history and dishonesty outweigh equities | Held: Discretionary denial affirmed—criminal history and untruthfulness outweigh equities |
| Whether remand for ineffective assistance of counsel was warranted | Respondent alleged prior counsel failed to discover criminal history and pursue administrative closure/alternate relief | DHS argued respondent failed Lozada requirements, counsel knew about visa petition but could not adjust status, and respondent hid crimes from counsel | Held: Motion to remand denied—procedural Lozada deficiencies, no showing of counsel deficiency or prejudice, and no prima facie entitlement to other relief |
Key Cases Cited
- Kungys v. United States, 485 U.S. 759 (1988) (§101(f)(6) bars applicants who gave false oral testimony with subjective intent to obtain immigration benefits)
- Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1982) (testimony defined as sworn statements to a tribunal)
- Hovsepian v. Obama, 422 F.3d 883 (9th Cir. 2005) (no subjective intent where inaccuracies stem from poor memory or vague questioning)
- Ramos v. INS, 246 F.3d 1264 (9th Cir. 2001) (false statements at asylum proceedings constitute false testimony)
- Bernal v. INS, 154 F.3d 1020 (9th Cir. 1998) (false sworn statements in naturalization context constitute false testimony)
- Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. 2010) (recantation offered only when confronted does not mitigate false testimony under §101(f)(6))
- Akwasi Agyei v. Holder, 729 F.3d 6 (1st Cir. 2013) (unexplained fear of truth can support inference of intent to obtain immigration benefits)
- Aragon-Salazar v. Holder, 769 F.3d 699 (9th Cir. 2014) (credibility and lack of truthfulness are relevant in discretionary determinations)