Kelvin Ortiz-Bouchet v. U.S. Attorney General
714 F.3d 1353
| 11th Cir. | 2013Background
- Ortiz-Bouchet and Malpica-Zapata sought review of a BIA removal order.
- IJ held Ortiz and Malpica inadmissible under §1182(a)(7)(A)(i)(I) for lacking valid entry documents at adjustment.
- IJ held Ortiz inadmissible under §1182(a)(6)(C)(i) due to fraud by a third party with Ortiz’s knowledge.
- IJ held Malpica removable under §1182(a)(9)(B)(i)(II) for leaving and re-entering within ten years after unlawful presence.
- Appeals court concluded §1182(a)(7)(A)(i)(I) applies to admissions, not post-entry adjustment; held error.
- Court vacated removal order on all challenged grounds and granted petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1182(a)(7)(A)(i)(I) applies to post-entry adjustment. | Ortiz/Malpica: statute applies to admission, not adjustment. | BIA/State: section covers admission broadly, including post-entry. | §1182(a)(7)(A)(i)(I) inapplicable to adjustment; petition granted on this ground. |
| Whether Ortiz's §1182(a)(6)(C)(i) charge fails for lack of willful misrepresentation. | Ortiz did not personally misrepresent or know of fraud. | Ortiz is deemed to know of fraud due to Cordero’s filing. | No actual misrepresentation by Ortiz; charge vacated. |
| Whether Malpica's departure under advance parole negates ‘departure’ under §1182(a)(9)(B)(i)(II). | Malpica’s advance parole departure should count as absence triggering inadmissibility. | Arrabally doctrine excludes parole-based entries from a departure. | Departure not satisfied; §1182(a)(9)(B)(i)(II) not applicable. |
Key Cases Cited
- Lanier v. U.S. Att'y Gen., 631 F.3d 1363 (11th Cir. 2011) (defines admission as excluding post-entry adjustment; governs deference to BIA.)
- Cadet v. Bulger, 377 F.3d 1183 (11th Cir. 2004) (deference to BIA where statute is ambiguous.)
- Matter of G-G-, 7 I. & N. Dec. 161 (BIA 1956) (fraud requires false representation of a material fact with knowledge of falsity.)
- Matter of Kai Hing Hui, 15 I. & N. Dec. 288 (BIA 1975) (willful misrepresentation generally similar to fraud but lacking requirement of intent to deceive.)
- Matter of Arrabally, 25 I. & N. Dec. 771 (BIA 2012) (advance parole exit does not constitute a 'departure' under §1182(a)(9)(B)(i)(II).)
- Matter of Guillot, 25 I. & N. Dec. 653 (BIA 2011) (BIA interpretation of admission may be unpersuasive on deference grounds when language is unambiguous.)