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Cortez-Pineda v. Holder

July 2, 2010

MATEO CORTEZ-PINEDA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A094-086-105.

The opinion of the court was delivered by: Gould, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted May 7, 2010 -- Seattle, Washington

Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and James Ware, District Judge.*fn1

Mateo Cortez-Pineda petitions for review of a decision of the Board of Immigration Appeals ("BIA") dismissing his appeal of an Immigration Judge's ("IJ") denial of his applications for special rule cancellation of removal, asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

I.

Cortez-Pineda, born in 1955, is a native and citizen of El Salvador. The government initiated removal proceedings against Cortez-Pineda in December 2005 with the filing of a Notice to Appear. It alleged that Cortez-Pineda entered the United States on or about June 1, 1990, and that he was removable as an alien present in the United States without having been admitted or paroled. Cortez-Pineda admitted the allegations and conceded removability, but sought special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), which extends eligibility for relief from removal to Salvadoran nationals who, among other requirements not at issue here, "first entered the United States on or before September 19, 1990." Pub. L. No. 105-100, 111 Stat. 2193-2201 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644-45 (1997).

At a June 2006 hearing, Cortez-Pineda testified in support of his eligibility for special rule cancellation, stating that he entered the United States in June 1990. During cross-examination, the government asked whether Cortez-Pineda had admitted to immigration officers during a 1992 immigration fraud investigation*fn2 that, contrary to his claimed June 1990 entry, he "entered the United States in 1991." Cortez-Pineda answered, "No." The government also pressed an inconsistency between Cortez-Pineda's claimed June 1990 entry date and a statement in Cortez-Pineda's asylum application that he experienced problems in El Salvador "[t]owards the end of 1990." During the exchange, Cortez-Pineda's counsel stated in passing that the Notice to Appear stated that June 1990 was his entry date.

At the end of the June hearing, the government requested that an evidentiary hearing be set on the issue of Cortez-Pineda's date of entry if the government was able to secure evidence from the 1992 investigation. The IJ adopted that plan. On July 17, 2006, the government filed and served on Cortez-Pineda's counsel a memorandum in which it formally requested an evidentiary hearing concerning the "alleged date of entry into the United States." The IJ issued an order on July 19, 2006, notifying the parties that there would be a hearing concerning "the critical issue of whether the respondent entered this country in 1991 as opposed to the claimed entry from June, 1990." By later agreement of the parties, the IJ scheduled the evidentiary hearing for November 20, 2006.

At the November evidentiary hearing, the government offered testimony from the two immigration officers who had interviewed Cortez-Pineda during the 1992 investigation. The officers testified that during the interview, Cortez-Pineda had admitted to entering on January 4, 1991, and had retracted as false an earlier entry date indicated in his application for Temporary Protected Status. The government also introduced an affidavit prepared by the officers in which they had contemporaneously memorialized their interview with Cortez-Pineda. The IJ credited the testimony of the officers and determined that Cortez-Pineda was not eligible for special rule cancellation because he entered the United States after September 19, 1990.

Cortez-Pineda also sought relief from removal in the form of asylum, withholding of removal, and CAT protection, and the IJ denied these claims. The BIA, citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), adopted the IJ's decision and dismissed the appeal. Cortez-Pineda's timely petition for review followed.

II.

When, as here, the BIA adopts the IJ's decision citing Matter of Burbano, we review the IJ's decision as if it were the BIA's. Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc). We review findings of fact ...


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