On June 27, 2016, the Board of Immigration Appeals (BIA or Board) held that a Mexican citizen who knowingly lied about his criminal history before the Immigration Judge (IJ) in an attempt to obtain cancellation of removal [INA §240(A)(b)(1)] or voluntary departure cannot show good moral character (GMC) under INA §101(f)(6), dismissed his appeal and denied his motion to reopen and remand. (The BIA also noted in a footnote that, subsequent to filing the appellate brief, respondent’s attorney had moved to withdraw; the Board also denied that motion because no adequate reason to permit withdrawal had been given.)
In his cancellation application, respondent stated he had only one criminal conviction but, in Immigration Court, testified initially that he had never been convicted, only correcting himself upon being reminded by his attorney; he then denied any other arrests or convictions. Yet on cross-exam inaction, after first reaffirming this claim, he was confronted by DHS with a series of dates and offenses, eventually admitting five additional incidents. The IJ found respondent had given false testimony which affected his credibility, concluding he lacked GMC and was therefore statutorily ineligible for cancellation or voluntary departure.
The BIA, in a fairly lengthy analysis, first noted that to qualify for cancellation, a respondent must establish, among other things, GMC for at least ten years immediately preceding the date of the application. INA §101(f)(6) states that no one can show GMC if, during the required period, he or she gives false testimony (oral statement under oath) for the purpose of obtaining immigration benefits. The Board noted the misrepresentation need not be material. Citing to several 9th Circuit appellate court opinions and its own precedent decision, Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988), the opinions reiterated that fake statements under oath in Immigration Court may run afoul of INA §(f)(6).
Stating that truthful testimony is critical to the effective operation of the immigration court system, the Board found that respondent had been given ample opportunity to disclose all arrests and convictions, understood the questions, and had not shown there had been faulty interpretation or objected to the interpreter’s performance. Nor had he made a timely recantation of his false testimony. The BIA could only conclude that respondent had lied to hide his criminal history from the IJ, e.g., made false statements with a subjective intent to deceive the court. Thus, the Board held, the respondent was properly precluded from establishing GMC under §101(f)(6) and is statutorily ineligible for cancellation of removal and voluntary departure. Additionally, weighing his equities, the Board agreed respondent did not merit a favorable exercise of discretion.
Finally, the Board denied the motion to remand based on in effective assistance of counsel because respondent had not substantially complied with the procedural requirements of Matter of Lozada; had failed to present a clear and obvious case of such ineffective assistance; or, shown his first attorney’s performance was deficient. (Respondent had lied to his attorney about his criminal history.) Matter of Gomez-Beltran, 26 I&N Dec. 765 (BIA 2016).
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