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Patel v. Lynch

United States Court of Appeals, Sixth Circuit

June 30, 2016

Govindbhai Kantilal Patel; Vidhyaben Patel; Rinaben Patel; Nitinkumar Govindbhai Patel, Petitioners,
v.
Loretta E. Lynch, Attorney General, Respondent.

         On Petition for Review of a Decision of the Board of Immigration Appeals. Nos. A072 169 666; A073 039 255; A098 516 094; A098 516 095

         ON BRIEF:

          Michael E. Piston, Michele R. Redburn, PISTON & CARPENTER PC, Troy, Michigan, for Petitioners.

          Julia J. Tyler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: CLAY, ROGERS, and McKEAGUE, Circuit Judges.

          OPINION

          PER CURIAM.

         Govindbhai Kantilal Patel, his wife Vidhyaben Patel, and their children Rinaben Patel and Nitinkumar Govindbhai Patel petition this court for review of an order of the Board of Immigration Appeals (BIA) dismissing their appeal from the denial of their applications for adjustment of status and denying Rinaben Patel's motion to sever and remand her removal proceedings.

         Petitioner Govindbhai Patel has told the government two stories of how he came to this country: one, which he maintains here, is that he was smuggled across the border without being inspected, and the other, which he told the government in earlier immigration proceedings, is that he entered the United States with a fraudulent visa. After the Department of Homeland Security charged him with multiple grounds of removability, Govindbhai Patel conceded one of those grounds-that he was removable as an alien present without being admitted or paroled-and then applied to adjust status under INA § 245(i), a form of relief from removability available to him only if he entered without inspection. When the BIA denied his application and his family members' derivative applications for § 245(i) relief because he did not prove that he had, in fact, entered without inspection (as opposed to having entered via a fraudulent visa), he cried foul- how could the BIA simultaneously hold that he is removable because he entered without inspection and that he is ineligible to adjust status under § 245(i) because he did not enter without inspection? The answer lies in the applicable burdens of proof: Govindbhai Patel bears the burden to prove that he satisfies all the requirements for adjustment of status, and his decision to concede a charge of removability is not sufficient to meet his burden to affirmatively prove that he satisfies § 245(i)'s requirement of having entered the country without inspection. The BIA's denial of his and his family members' applications to adjust status-with the exception of his daughter's application, which the government agrees must be remanded-was therefore not in error.

         The Patels are natives and citizens of India. In 1994, Govindbhai Patel submitted an application for asylum and an application for employment authorization, both of which stated that he arrived in the United States at John F. Kennedy International Airport as a visitor on December 25, 1993. Vidhyaben Patel also submitted an asylum application, asserting that she arrived in New York as a visitor in February 1994 and that her husband had been in the United States for two years. In their asylum applications, Govindbhai Patel and Vidhyaben Patel both denied traveling through any other country before entering the United States.

         In 1999, Jogmaya Corporation obtained an alien employment certification from the Department of Labor for a bookkeeper position. Jogmaya Corporation subsequently filed an immigrant petition for alien worker on behalf of Govindbhai Patel, which was approved in 2004. Govindbhai Patel then submitted an application for adjustment of status, in which he stated that he arrived in the United States in New York as a B-2 visitor for pleasure on November 25, 1993, and that he was inspected by an immigration officer. Counsel's cover letter reiterated that Govindbhai Patel "entered the U.S. on November 25, 1993 as a B-2 visitor." (AR 735). Vidhyaben Patel, Rinaben Patel, and Nitinkumar Patel filed derivative adjustment applications. All four Patels filed supplements to their applications seeking adjustment of status under Section 245(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i), in which they indicated that they entered the United States without inspection.

         In an interview with an immigration officer in 2005, Govindbhai Patel stated under oath that he entered the United States in New York with a visa on November 23, 1993. In subsequent interviews, however, Govindbhai Patel stated under oath that he entered the United States on November 25, 1993, by crossing the border from Mexico to California in a truck with a smuggler and that his family members also used smugglers to enter the United States.

         In 2008, the United States Citizenship and Immigration Services (USCIS) denied Govindbhai Patel's application for adjustment of status, as well as his family members' derivative applications. Govindbhai Patel's "continued conflicting responses" left the USCIS "trying to determine when or if [he] might be telling the truth ever." (AR 817).

         In 2009, the Department of Homeland Security (DHS) initiated removal proceedings against the Patels by filing notices to appear, charging them with removability as aliens present in the United States without being admitted or paroled in violation of INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Appearing before an immigration judge (IJ), the Patels conceded removability as charged and sought relief in the form of adjustment of status pursuant to INA § 245(i). The DHS subsequently filed additional charges against Govindbhai Patel, asserting that he sought to procure an immigration benefit by fraud or by willfully misrepresenting a material fact in violation of INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and that he was not in possession of a valid travel document at the time of application for admission in violation of INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Govindbhai Patel denied the new charges. At a hearing before the IJ, all four Patels testified that they were smuggled into the United States-Govindbhai Patel and Vidhyaben Patel from Mexico to California and Rinaben Patel and Nitinkumar Patel from Canada to Michigan.

         After considering the testimony of the witnesses and the documents in the record, the IJ denied the Patels' applications for adjustment of status and ordered their removal to India. The IJ found that Govindbhai Patel was not a credible witness based on the inconsistencies in his testimony and the documents, including his inconsistent representations about his manner and date of entry into the United States, and on his demeanor during his testimony, frequently failing to answer questions or delaying his responses. The IJ determined that "the evidence in total demonstrates that [Govindbhai Patel] came to the United States with a fraudulent visa" and that "he then changed his theory that he came to the United States without inspection so that he could qualify for an adjustment under" INA § 245(i). (AR 223). The IJ found that Govindbhai Patel failed to satisfy his burden of establishing eligibility for adjustment of status, that the DHS had proved removability under INA § 212(a)(6)(A)(i) based on Govindbhai Patel's concession to entering without inspection and ...


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