Filed: May 20, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1600 Cohen v. Lynch BIA Montante, IJ A072 584 817 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 NO
Summary: 15-1600 Cohen v. Lynch BIA Montante, IJ A072 584 817 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 NOT..
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15-1600
Cohen v. Lynch
BIA
Montante, IJ
A072 584 817
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
TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 20th
day of May,two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
_____________________________________
ROGER COHEN,
Petitioner,
v. 15-1600
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jeffrey A. Devore, Devore Law Group,
P.A., Palm Beach Gardens, Florida.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Blair T.
O’Connor, Assistant Director; Juria
L. Jones, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Roger Cohen, a native of Egypt and citizen of
Canada, seeks review of an April 14, 2015, decision of the BIA
affirming a June 28, 2013, decision of an Immigration Judge
(“IJ”) ordering Cohen removed to Canada. In re Roger Cohen, No.
A072 584 817 (B.I.A. Apr. 14, 2015), aff’g No. A072 584 817
(Immig. Ct. Buffalo June 28, 2013). We assume the parties’
familiarity with the underlying facts and procedural history in
this case, which we reiterate only as necessary to explain our
views of this case.
We review the IJ’s opinion as supplemented by the BIA. See
Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We
review the IJ’s factual findings under the substantial evidence
standard, upholding those findings “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). We review de novo questions of law and
the agency’s application of law to undisputed fact. Yanqin Weng
v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
An alien in removal proceedings who seeks admission bears
the burden of establishing that he “is clearly and beyond doubt
entitled to be admitted and is not inadmissible under” 8 U.S.C.
2
§ 1182. 8 U.S.C. § 1229a(c)(2)(A). An “alien seeking admission
at a . . . port of entry must present whatever documents are
required and must establish to the satisfaction of the
inspecting officer, that [the alien] is . . . entitled . . . to
enter the United States.” 8 C.F.R. § 235.1(f)(1). “Any alien
who, by fraud or willfully misrepresenting a material fact,
seeks to procure . . . a visa, other documentation, or admission
into the United States or other benefit provided [by the INA] is
inadmissible.” 8 U.S.C. § 1182(a)(6)(c)(i).
It is abundantly clear that this case stems from an
unfortunate incident prompted by Mr. Cohen’s attempted use of a
copy, rather than the original, of Form I-185, a Non-Resident
Alien Canadian Border Crossing Card. This attempted use may
seem a trivial matter to the untutored eye. In the immigration
context, however, seemingly trivial missteps can have serious
consequences which may well be beyond the alien’s contemplation
and which may seem disproportionate to the offense.
There is no question, based on the record in this case,
that the form at issue here, whether it was an original or a
copy of the original, accurately reflected information that was
also contained in the files of the Department of Homeland
Security, to wit: that Mr. Cohen had permission to enter the
3
United States notwithstanding a prior conviction.1
Mr. Cohen approached the Lewiston Bridge Port of Entry and
presented the copy of Form I-185. At that point, he claimed he
was presenting the original I-185. As a result, he was placed
in removal proceedings for making a willful misrepresentation to
procure admission.
Petitioner’s first argument is that he was not seeking “to
procure . . . a visa, other documentation, or admission into the
United States or other benefit provided [by the INA].” 8 U.S.C.
§ 1182(a)(6)(C)(i). Instead, he was merely seeking information
as to how to replace his stolen I-185. Mr. Cohen, however,
presented no evidence, other than his own testimony, to show
that he was not seeking admission. Moreover, the IJ found his
testimony not to be credible and instead credited the testimony
of Border Patrol Officer Matthew Sundlov that Mr. Cohen had
sought admission to the United States using a copy of a Form I-
185. There is no evidence in the record that compels the
conclusion that the IJ’s credibility finding was erroneous. See
8 U.S.C. § 1252(b)(4)(B); Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 333-34 (2d Cir. 2006). Officer Sundlov testified
1
It is not clear from the record why Mr. Cohen no longer had
the original Form I-185 that had been issued to him, but it
appears he had either lost it or it was stolen from his boat.
There is no indication in the record of these proceedings,
however, that the copy was anything other than a duplicate of
his original Form I-185, which, if presented by Mr. Cohen,
entitled him to entry into the United States.
4
in accord with the Record of Deportable/Inadmissible Alien, the
I-213, that Mr. Cohen admitted he would have continued using the
copy of the I-185 if he had successfully gained admission.
“Form I-213 [is a record] made by public officials in the
ordinary course of their duties, and accordingly evidence[s]
strong indicia of reliability.” Felzcerek v. INS, 75 F.3d 112,
116 (2d Cir. 1996).
Moreover, an IJ is not required to credit an alien’s
explanations for inconsistencies unless a reasonable fact finder
would be compelled to credit the explanation. Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Here, Mr. Cohen’s
explanation that he was merely seeking information is belied by
the I-213, Sundlov’s testimony, and an internal Border Patrol
memorandum stating that Mr. Cohen tried to pass off the copy as
an original until confronted with evidence that Border Patrol
agents knew the I-185 was a copy. The IJ’s conclusion is
further supported by evidence that Mr. Cohen had previously
sought information on how to replace his I-185 in 2010, and that
he had previously been provided a form and instructions on how
to obtain a replacement. Given these facts, the IJ reasonably
concluded that it was implausible that Mr. Cohen would travel to
the border to seek the same information again.
Mr. Cohen’s second argument is that, assuming arguendo he
misrepresented that the I-185 was an original, his
5
misrepresentation is immaterial for two reasons. First, he had
a valid waiver of inadmissibility; any misrepresentation,
therefore, had no effect on his admissibility. Second, Border
Patrol was not deceived by the copy; the misrepresentation thus
did not materially affect a decision as to his admissibility. A
“misrepresentation is material if it ‘has a natural tendency to
influence or was capable of influencing, the decision of the
decisionmaking body to which it was addressed.’” Monter v.
Gonzales, 430 F.3d 546, 553 (2d Cir. 2005) (quoting Kungys v.
United States,
485 U.S. 759, 770 (1988)). Although it is true
that Mr. Cohen had a valid waiver of inadmissibility, an alien
seeking admission must still possess a valid entry document. 8
U.S.C. § 1182(a)(7)(B)(i)(II). Here, he presented a copy of
Form I-185 but claimed that it was the original. We have never
held that a misrepresentation can be immaterial because it did
not, in fact, deceive the relevant decision maker. We decline
to do so now. Moreover, submission of a misleading entry
document certainly had a “natural tendency to influence” Border
Patrol agents in their determination as to whether Mr. Cohen was
in possession of a valid entry document, as required for
admission.
Monter, 430 F.3d at 553.
Ultimately, Mr. Cohen bore the burden of establishing that
he was admissible to the United States. 8 U.S.C. §
1229a(c)(2)(A). Considering his acknowledgement that he used a
6
copy of the I-185 and the evidence in the record from multiple
sources showing that he tried to pass off the I-185 as genuine,
we cannot find error in the IJ’s conclusion that Mr. Cohen
failed to meet his burden of showing admissibility. See Crocock
v. Holder, 670 F.3d 400, 403 (2d Cir. 2012) (holding that, where
alien presents no evidence other than his own testimony
disputing claim that he did not intend to deceive immigration
authorities, there is no error in concluding alien failed to
meet burden of showing admissibility).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
7
