Case: 13-12791   Date Filed: 05/09/2014   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                         No. 13-12791; 13-14411
                         Non-Argument Calendar
                       ________________________

                        Agency No. A201-214-116


YUSONG CUI,

                                                                      Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petitions for Review of a Decision of the
                        Board of Immigration Appeals
                        ________________________

                               (May 9, 2014)

Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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       Yusong Cui, a Chinese national, petitions for review of the Board of

Immigration Appeals’ final order affirming the Immigration Judge’s finding that

he is removable under 8 U.S.C. § 1182(a)(6)(A)(i) and (a)(7)(A)(i)(I). He also

petitions for review of the BIA’s denial of his motion to reconsider that final

order. 1

                                                  I.

       In March 2010 a Florida state court convicted Cui of petit theft, resisting an

officer without violence, and carrying a concealed firearm. Those convictions

brought Cui to the attention of the Department of Homeland Security, which ran

his fingerprints through a national database and found that he had not been

“admitted, inspected, or paroled” in the United States. The DHS documented that

finding in a Form I-213 Record of Deportable/Inadmissible Alien and charged Cui

as removable because he had entered the country at an unknown place and time

without being inspected or admitted, in violation of 8 U.S.C. § 1182(a)(6)(A)(i),

and because he lacked a valid travel or entry document, in violation of 8 U.S.C.

§ 1182(a)(7)(A)(i)(I).

       At a hearing before the IJ, Cui conceded his alienage but contested his

removability, alleging that he had been properly inspected and admitted at the Los

Angeles International Airport in May 1998. To support that allegation, he offered


       1
           Cui filed two separate petitions which are consolidated here.
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only testimony — his own and that of two acquaintances. He presented no

passport, no visa, no I-94 Arrival/Departure Form, no airline tickets, or any other

documentation. Cui testified that his mother had made all of his travel

arrangements, and that she had paid a man named Jang $10,000 to get a visa for

him. He said Jang flew with him to the airport in Los Angeles in May 1998, after

which Jang walked him through the immigration inspection and dealt with the

immigration officials on his behalf. Cui testified that once he had passed through

the inspection Jang took his passport and other immigration documents and left.

Cui’s first acquaintance then testified that he had picked up Cui from the airport in

May 1998, and the second testified that he did not know when Cui arrived but had

heard that it was in May 1998.

      The IJ found that Cui was removable because he had not shown that he had

been inspected and admitted into the United States. The IJ noted that Cui had no

documentation to substantiate his story and found that his testimony was not

credible and that the testimony of his acquaintances merited little weight. The IJ

also found that the Form I-213 showing that there was no record of Cui’s

inspection or admission was inherently trustworthy and admissible because Cui

had neither objected to its admission as evidence nor offered other documentary

evidence suggesting it was inaccurate. The BIA affirmed. Cui asked the BIA to

reconsider its final order, and the BIA denied his motion because he had failed to

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identify any material error of fact or law in its prior decision. Cui now petitions for

review of the BIA’s final order and its denial of his motion to reconsider.

                                               II.

       We review only the BIA’s final order except to the extent that the BIA

expressly adopted the IJ’s decision or findings. See Wu v. U.S. Att’y Gen., 

, 492 (11th Cir. 2013). In this context, we review factual determinations

“under the highly deferential substantial evidence test,” and “we must affirm the

BIA’s decision if it is supported by reasonable, substantial, and probative evidence

on the record considered as a whole.” 

omitted). To reverse

the IJ and BIA’s factfindings, we must find that the record not only supports

reversal, but that it compels it. See Sanchez Jimenez v. U.S. Att’y Gen., 

, 1230 (11th Cir. 2007).

       Cui was charged as removable based on inadmissibility under 8 U.S.C.

§ 1182, and when that is the charge, the BIA uses a burden-shifting test to

determine removability. See 8 C.F.R. § 1240.8(c). DHS bears the initial burden

of proving alienage, after which the alien bears the burden of proving that he was

inspected and admitted into the United States. 2 See id.; 8 U.S.C. § 1229a(c)(2)(B);

see also Garces v. U.S. Att’y Gen., 

, 1345–46 (11th Cir. 2010). Cui

conceded his alienage before the IJ, so we must determine only whether the record

       2
          An alien may contest his inadmissibility under 8 U.S.C. § 1182 on other grounds, but
this is the only ground at issue here.
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compels the conclusion that he was previously inspected and admitted into the

United States. The record does not compel that conclusion.

      First, Cui did not prove that he had been inspected or admitted. He failed to

present a single document to support his claim. The IJ found that his testimony

was not credible, a finding we must defer to because it is supported by substantial

evidence in the record. See D-Muhumed v. U.S. Att’y Gen., 

, 818

(11th Cir. 2004) (“Credibility determinations . . . are reviewed under the

substantial evidence test.”). And the IJ found that the testimony of his two

acquaintances merited little weight, another finding supported by substantial

evidence in the record. Second, the Form I-213 also shows that Cui was never

inspected or admitted to the United States. That form is considered to be

inherently trustworthy, and Cui did not challenge its admission or accuracy. See

Gutierrez-Berdin v. Holder, 

, 653 (7th Cir. 2010) (holding that “Form

I-213 is a presumptively reliable administrative document” that is “inherently

trustworthy” when its accuracy is not challenged). Because the record does not

compel the conclusion that Cui was inspected and admitted into the United States,

we must deny his petition for review of the BIA’s final order.

                                         III.

      “We review the BIA’s denial of a motion to reconsider for abuse of

discretion.” Calle v. U.S. Att’y Gen., 

, 1328 (11th Cir. 2007)

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(quotation marks omitted). A motion asking the BIA to reconsider its decision

must specify the errors of law or fact in the original decision. See 

(citing 8 C.F.R. § 1003.2(b)(1)). A motion that merely reiterates earlier arguments

fails to specify those kinds of legal or factual errors. 

motion to

reconsider merely reiterated arguments already presented, the BIA did not abuse its

discretion in denying that motion. And to the extent that Cui based his motion to

reconsider on new legal arguments that could have been raised in the underlying

proceedings, the BIA also properly denied his motion. See Matter of O-S-G-, 24 I.

& N. Dec. 56, 58 (BIA 2006).

      PETITIONS DENIED.




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