11-4260-ag
Davila-Abarca v. Holder
                                                                                                                     BIA
                                                                                                             A088 189 897

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             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,
          JOSÉ A. CABRANES,
          ROBERT A. KATZMANN,

                               Circuit Judges.
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AURELIO DAVILA-ABARCA,

                               Petitioner,

          v.                                                                               No. 11-4260-ag

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

                               Respondent.

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FOR PETITIONER:                                                          Glenn L. Formica, New Haven, CT.

FOR RESPONDENT:                                                          Stuart F. Delery, Acting Assistant Attorney
                                                                         General; Derek C. Julius, Senior Litigation
                                                                         Counsel; Benjamin Mark Moss, Trial
                                                       Attorney, Office of Immigration Litigation,
                                                       United States Department of Justice,
                                                       Washington, DC.

        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, 

, 237 (2d Cir. 2008)
(quoting Wangchuck v. DHS, 

, 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, 

, 624 (2d Cir. 1999) (quoting
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 

, 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 “knowingly” presented the fraudulent green card. See Waldron v. INS, 

, 515 n.7 (2d
Cir. 1994).
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        Davila-Abarca’s argument that his presentation of the fraudulent green card was not willful
lacks merit because it is belied by his own sworn testimony indicating that his conduct was deliberate
and voluntary. See Emokah v. Mukasey, 

, 116-17 (2d Cir. 2008). Davila-Abarca testified
that when government agents asked him for his identification, he gave them his fraudulent green
card, while his authentic Peruvian passport was hidden in a box. Under these circumstances, the
agency reasonably determined that Davila-Abarca’s presentation of his false green card to the ICE
agents was “willful” within the meaning of 8 U.S.C. § 1182(a)(6)(C)(i). See id.; see also Matter of Kai
Hing Hui, 15 I&N Dec. 288, 289-90 (B.I.A. 1975). Because the agency did not err in determining
that Davila-Abarca made a willful misrepresentation of a material fact, and because an alien is
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for either fraud or willfully misrepresenting a material
fact, we do not address whether Davila-Abarca’s conduct was also fraudulent. See INS v. Bagamasbad,

, 24 (1976).


                              B. Seeking to Procure an Immigration Benefit
        The BIA found that an alien, such as Davila-Abarca, who presents a fraudulent green card to
immigration officials to prevent the initiation of removal proceedings, has sought to procure an
immigration “benefit” within the meaning of § 1182(a)(6)(C)(i). Davila-Abarca argues only that he
was not seeking to procure an immigration benefit when he presented his fraudulent green card to
ICE agents because he did not seek to enter the country, receive work authorization, or attempt to
adjust status with the fraudulent green card. Contrary to this narrow reading, however, 8 U.S.C.
§ 1182(a)(6)(C)(i) applies to an alien who seeks to procure, or does procure, a visa, other
documentation, admission into the United States, or “other benefit[s].” Davila-Abarca does not
contend that avoiding the initiation of removal proceedings is not a “benefit” under the INA, nor
does he present any legal argument for why the statute should be circumscribed in the manner he
suggests.


                                         II. Waiver of Inadmissibility
        Under 8 U.S.C. § 1182(i), an alien inadmissible under § 1182(a)(6)(C)(i) may be granted a
waiver “in the discretion of the Attorney General . . . [if he] is the [son] of [aliens] lawfully admitted
for permanent residence . . . [and] establishe[s] to the satisfaction of Attorney General that the
refusal of admission . . . would result in extreme hardship to the [lawful permanent resident
parents].” Davila-Abarca challenges the agency’s finding that his removal would not cause “extreme
hardship” to his lawful permanent resident parents. Davila-Abarca also contends that he raises a
question of law because the agency “seriously mischaracterized” his parents’ health issues and the
important role he plays in their lives. The BIA’s decision, however, accurately notes his mother’s
health conditions, as well as the supportive role he plays in his parents’ lives; it neither overlooked
nor seriously mischaracterized his parents’ testimony. See Mendez v. Holder, 

, 323 (2d
Cir. 2009).

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          Even though Davila-Abarca disagrees with the agency’s determination that the level of
hardship his parents would suffer upon his removal would not be “extreme,” his arguments amount
to nothing more than a “quarrel . . . over the correctness of . . . factual findings or justification
for . . . discretionary choices,” Xiao Ji Chen v. U.S. Dep’t of Justice, 

, 329 (2d Cir. 2006),
and do not raise a question of law or constitutional claim. We therefore lack jurisdiction to review
the agency’s denial of his application for a waiver of inadmissibility under § 1182(i). See INA
§ 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(I).


         For the foregoing reasons, the petition for review is DISMISSED IN PART AND
DENIED IN PART. As we have completed our review, any stay of removal that the Court
previously granted in this petition is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit
Local Rule 34.1(b).


                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




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