Tuesday, November 9, 2010

Burden on Admission: Clearly and Beyond Doubt

Valadez-Munoz v. Holder
No. 06-72510
United States Court of Appeals for the Ninth Circuit
Oct. 28, 2010

Mr. Valadez-Munoz first entered illegally into the United States December 1987 at the age of 16.  He visited his family in Mexico three times between 1988 and 1992.  All three visits were for less than a month and each time he entered illegally back into the United States. In 1994, he used an U.S. birth certificate belonging to Robert Moreno to obtain a drivers license. 

In early 1997 Mr. Valadez-Munoz travelled to Mexico to introduce his fiancée to his family.  The couple returned by plane to the Huston Airport where Mr. Valadez-Munoz tried to re-enter using Robert Moreno’s birth certificate.  When he was confronted with biographical information about the real Roberto Moreno at Secondary Inspection, Valadez-Munoz confessed his true identity.   The officer found Mr. Valdez-Munoz excludable and gave him the option to either see an immigration judge (IJ) or withdraw his application for admission and voluntarily return to Mexico.  Mr. Valadez-Munoz agreed to withdraw his admission and returned to Mexico that same day.  A few days later he re-entered the United States without inspection.

 Mr. Valadez-Munoz married his wife in 1998 and had two children.  In 2001, Mr. Valadez-Munoz applied for adjustment of status through his U.S. citizen wife.  The U.S. Citizenship and Immigration Service (USCIS) denied the petition based on a false claim of U.S. citizenship and Mr. Valadez-Munoz was placed in removal.

In removal proceedings, Mr. Valadez-Munoz renewed his application for adjustment and in the alternative requested cancellation of removal pursuant to 8 USC §1229b.  The IJ ruled that Mr. Valadez-Munoz was inadmissible because he had claimed to be a U.S. citizen when he attempted to enter the U.S. at the Huston airport, and that he did not qualify because he did not meet the ten year presence requirement.  The court held that Mr. Valadez-Munoz’s agreement to voluntarily withdraw his application for admission broke his continuous presence.   The BIA affirmed the IJ’s decision.

On appeal to the Ninth Circuit, Mr. Valadez-Munoz argued that he had not signed any documents admitting that he had falsely claimed citizenship and that the agreement to withdraw his request for admission was insufficient to find him inadmissible.  However, the burden of proof is on the applicant for admission, therefore Mr. Valadez-Munoz needed to show that he is not inadmissible “clearly and beyond doubt.”   Yet, he did not provide the court any proof to rebut the inference that his behavior at the airport constituted anything else than an attempt to enter the U.S. using the identity of a U.S. citizen.  Moreover, Mr. Valadez-Munoz’ recantation of his citizenship claim did not come until he had been caught, therefore amelioration was not available.

The Ninth Circuit also found that his agreement to voluntarily withdraw his application for admission and subsequent departure constituted a break in continuous presence.  There was nothing in the record to question that his agreement to do so was knowing and voluntary.



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