Filed: Aug. 22, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-22-2008 Patel v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2685 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Patel v. Atty Gen USA" (2008). 2008 Decisions. Paper 628. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/628 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-22-2008 Patel v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2685 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Patel v. Atty Gen USA" (2008). 2008 Decisions. Paper 628. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/628 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-22-2008
Patel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2685
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Patel v. Atty Gen USA" (2008). 2008 Decisions. Paper 628.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/628
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2685
AMRISHBHAI CHIMANBHAI PATEL;
MAYABEN AMRISHBHAI PATEL,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A73-575-122 & A97-436-283
on May 10, 2007
Immigration Judge: Daniel Meisner
Submitted Under Third Circuit LAR 34.1(a)
June 25, 2008
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed: August 22, 2008)
OPINION
PER CURIAM
Amrishbhai Chimanbhai Patel and his wife, Mayaben Amrishbhai Patel, both
natives and citizens of India, petition for review of the decision of the Board of
Immigration Appeals (BIA) affirming the Immigration Judge’s (“IJ”) order of removal.
For the reasons set forth below, we will deny the petition.
I.
The facts are well known to the parties and will not be repeated at length here. Mr.
Patel arrived in the United States in the early 1990s without a valid entry document and
was placed in removal proceedings upon service of a notice to appear on March 4, 2004.
Patel’s wife, who entered the United States in 1997 without a valid entry document, was
also placed in removal proceedings. Mr. Patel filed an asylum application in 1994. After
obtaining counsel, he withdrew the asylum application and applied for cancellation of
removal pursuant to 8 U.S.C. § 1229b(b). He claimed that he had established continuous
physical presence in the United States for at least ten years, that he was of good moral
character, that he had no criminal record, and that his deportation would constitute
exceptional and extremely unusual hardship on his two minor, American-born children.
Mrs. Patel applied for voluntary departure.
Upon completion of removal proceedings that occurred in 2005 and early 2006, the
IJ pretermitted Mr. Patel’s application for cancellation of removal, denied Mrs. Patel’s
2
request for voluntary departure, and ordered that the couple be removed to India.1 The
Patels appealed to the BIA. In May 2007, the BIA dismissed the appeal, adopting and
affirming the reasoning and conclusions of the IJ.
The Patels petition for review of the BIA’s decision. They argue that the IJ erred
in pretermitting Mr. Patel’s application for cancellation of removal and in denying
voluntary departure for Mrs. Patel without a hearing. They maintain that the IJ unduly
relied on Mr. Patel’s asylum application, his I-765 application, and his G3-35A form
(referred to collectively as the “1994 applications”) in making an adverse credibility
determination against him. They also contend that the IJ should have heard testimony and
considered other evidence demonstrating that Mr. Patel’s removal would cause extreme
hardship on the Patels’ two American-born, minor children.
II.
We have jurisdiction to review a final order of removal. 8 U.S.C. § 1252(a).
Where, as here, the BIA expressly adopts the IJ’s decision and reasoning pursuant to
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), we review the decisions of both
the IJ and the BIA to determine whether the BIA’s decision to defer to the IJ was
appropriate. Shehu v. Gonzales, 482 F.3d 652, 657 (3d Cir. 2007). We review the factual
findings of the IJ, including adverse credibility findings, for substantial evidence.
1
The IJ also denied voluntary departure for Mr. Patel, although there is nothing in the
record to indicate that Mr. Patel requested it.
3
Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). We will uphold the findings
if they are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS,
143 F.3d 157, 161 (3d Cir. 1998)
(internal quotations marks and citation omitted). Moreover, “the BIA’s finding must be
upheld unless the evidence not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001).
Substantial evidence supports the IJ’s conclusion that Mr. Patel’s testimony was
not credible as to whether he had shown ten years of continuous presence in the United
States.2 The IJ correctly noted that Patel’s 1994 applications, all of which were signed
under penalty of perjury, state that he arrived in the United States on October 16, 1994.
The 1994 applications, however, conflict with Patel’s later application for cancellation of
removal (also signed under penalty of perjury) and his sworn testimony at the hearing,
which state that he entered the country on March 13, 1993.3 Mr. Patel described the 1994
applications as “inaccurate,” attributing the error to the fact that someone else prepared
the applications for him. But the 1994 applications themselves were not co-signed by a
2
In addition to discrepancies in the documentary evidence and testimony pertaining to
Patel’s date of entry, the IJ also pointed to Patel’s mis-representation in his 1994
applications that he was not married. In the cancellation of removal application upon
which he now relies, Patel swore that he was married to his wife, Mayaben, in India in
1991.
3
Patel withdrew his asylum application because it was inaccurate. But it appears that
he did not withdraw or attempt to correct the I-765 application or the G3-35A form, even
though they, too, recorded his date of entry as October 1994.
4
third party preparer.
In deciding that Mr. Patel’s testimony was questionable, the IJ also pointed to the
lack of record evidence corroborating Patel’s assertion that he entered the country on
March 13, 1993. As we have previously acknowledged, the IJ may require corroborating
documentation even where an applicant is credible, and such corroboration is required
“where it is reasonable to expect such proof from a witness and there is no satisfactory
explanation for its absence.” Obale v. Att’y Gen., 453 F.3d 151, 163 (3d Cir. 2006).
Here, the IJ found that Patel had sufficient time (twenty-two months) to provide
corroborating evidence supporting his claim of entry in March 1993, such as a letter from
one of the friends with whom he shared a room in 1993, employment papers, or utility
and phone bills. Mr. Patel offered no excuse for failing to provide such documentation.
The IJ rejected Mr. Patel’s tax returns for tax years 2004, 2005, and 2006, because they
had all been completed in 2005 or 2006, and thus, were not probative of his date of entry.4
Although Patel testified that he was fingerprinted when he entered the country in March
1993, he also testified that he used a different name that he no longer remembered.5
4
It appears that, even if Patel had filed his tax returns at the appropriate time each
year, the evidence tended to show that he arrived in the country in 1994 at the earliest, the
first tax year for which he submitted a return.
5
The IJ also noted that Patel acknowledged that his children received Medicaid from
1998 to 2000 and from 2004 “to the present” in his cancellation of removal application,
but failed to provide any information about his assets in the United States. Moreover, the
IJ observed that Patel completed a labor certification that was filed in 2001, stating that
he was qualified as a chef, yet there was no record evidence that he held such a
qualification. Patel argues that he should have had an opportunity to explain these
5
Without that name, the government could not verify when Patel’s fingerprints were entered
into their database. We conclude that the inconsistencies between the 1994 applications and
Mr. Patel’s sworn testimony, alone, support the IJ’s adverse credibility determination as to
Mr. Patel. Moreover, the lack of any record evidence corroborating Mr. Patel’s asserted
date of entry in March 1993 convinces us that a reasonable adjudicator would not be
compelled to conclude that Mr. Patel’s testimony was credible.
Substantial evidence thus supports the IJ’s decision to pretermit Patel’s application
for cancellation of removal, on the basis that Patel failed to satisfy his burden of showing
continuous physical presence in the United States for ten years prior to the date upon which
he was served with a notice to appear, pursuant to 8 U.S.C. §§ 1229b(b)(1) and 1229b(d).
Because Patel failed to show ten years of continuous physical presence, further testimony
regarding the extreme hardship prong, however compelling it might have been, or on his
good moral character, would not have changed the result.
III.
Mayaben Patel challenges the IJ’s denial of her request for voluntary departure. We
lack jurisdiction over this claim because it does not involve “constitutional claims or
questions of law.” See 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D).
Accordingly, we will deny the petition for review filed by Amrishbhai and Mayaben
Patel.
discrepancies. This argument is misplaced, as the discrepancies go to Patel’s good moral
character and are not probative of whether Patel satisfied the continual presence standard
for cancellation of removal.
6
