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Aurelio Davila-Abarca v. Eric H. Holder

September 26, 2012

AURELIO DAVILA-ABARCA, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



BIA A088 189 897

11-4260-ag

Davila-Abarca v. Holder

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 26th day of September, two thousand twelve.

PRESENT: PIERRE N. LEVAL, JOSE A. CABRANES, ROBERT A. KATZMANN, Circuit Judges.

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of the September 15, 2011 decision of the Board of Immigration Appeals ("BIA") is DISMISSED IN PART AND DENIED IN PART.

Aurelio Davila-Abarca, a native and citizen of Peru, seeks review of a September 15, 2011, order of the BIA affirming the September 3, 2010, decision of an Immigration Judge ("IJ") that denied his applications for adjustment of status and a waiver of inadmissibility, In re Aurelio Davila- Abarca, No. A088 189 897 (B.I.A. Sept. 15, 2011), aff'g No. A088 189 897 (Immig. Ct. Hartford, Sept. 3, 2010). We assume the parties' familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have considered both the IJ's and the BIA's opinions "'for the sake of completeness.'" Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008)

(quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006)). We review the BIA's legal conclusions de novo, "with the caveat that the BIA's interpretations of ambiguous provisions of the [Immigration and Nationality Act] are owed substantial deference unless 'arbitrary, capricious, or manifestly contrary to the statute.'" Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir. 1999) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).

I. Adjustment Application

"Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible." INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). The agency found Davila-Abarca inadmissible, and thus ineligible for adjustment of status, based on his presentation of a fraudulent green card to government agents. Davila-Abarca challenges that determination on two grounds: (1) that the presentation was neither "fraudulent" nor a "willful" misrepresentation of a material fact; and (2) that he was not seeking to procure an immigration benefit by presenting the fraudulent document.

A. Fraudulent or Willful Misrepresentation of a Material Fact

Davila-Abarca contends that his presentation of a fraudulent green card to government agents was not willful because he was "ordered" to produce proof of his immigration status. While Davila-Abarca failed to raise this argument before the agency, we may review it because the BIA independently addressed it by agreeing with the IJ's conclusion that Davila-Abarca "consciously" and ...


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