IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60680

GHANSHYAMBBHAI PATEL,

Petitioner,

v.

ERIC HOLDER, United States Attorney General,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A096-041-199

Before DAVIS, DeMOSS, and ELROD, Circuit Judges.

PER CURIAM:*

This case involves an appeal from a decision of the Board of Immigration 

Appeals. Petitioner argues that the BIA erred in making factual 

determinations that he was not present in the United States prior to the year 

2000, and was thus not grandfathered into eligibility for an adjustment of his 

immigration status under 8 U.S.C. § 1255. We review the BIA’s factual 

determinations under the deferential substantial evidence standard. Because 

* Pursuant to Fifth Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in Fifth 

Cir. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 4, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-60680 Document: 00512824965 Page: 1 Date Filed: 11/04/2014
No. 13-60680

there is substantial evidence supporting the BIA’s determination, we DENY 

Patel’s petition. 

I.

In October 2004, Ghanshyambbhai Patel, a native and citizen of India, 

was charged in a notice to appear (NTA) with removability for illegally 

entering the United States. The NTA alleged that Patel entered this country 

“on or about 2002.” At his removal hearing Patel informed the immigration 

court that the NTA was incorrect, he had arrived in the United States in 2000, 

not 2002. Patel received his labor certification and filed an I-140 petition for 

an immigrant worker to be eligible for adjustment of status, which was 

approved. Patel then filed an I-485 application to adjust his status to a 

permanent resident.

Under 8 U.S.C. § 1255, qualifying aliens who entered the United States 

without inspection may nevertheless obtain lawful permanent resident status 

from within the United States. This immigration benefit is only available to 

those who are “grandfathered” in under § 1255(i)(1). To be grandfathered, the 

alien must meet several conditions, including, for relevant purposes here, that 

the alien was physically present in the United States on December 21, 2000. 8 

U.S.C. § 1255(i)(1)(C). 

At his removal hearing in 2011, Patel offered his own testimony, which 

contained several contradicting statements, an affidavit from a coworker, “Joe” 

or “Jose” Fernandez, and at least one letter from a member of the clergy. The 

government argued that Patel was not present prior to December 21, 2000 and 

relied on the following: Patel’s testimony was inconsistent and he could not 

explain why he did not indicate a date of entry on his I-485; Patel could not 

explain why his Form I-213 indicated he entered the United States in 2002; 

Joe Fernandez’s affidavit was signed “Jose Fernandez” and did not specify how 

he knew Patel was in the United States during the relevant time period; the 

2

 Case: 13-60680 Document: 00512824965 Page: 2 Date Filed: 11/04/2014
No. 13-60680

letter from the clergy member was unclear as to how he was associated with 

Patel; Patel did not provide any documentation from his previous employer, 

who assisted him when he first came to the United States.

Based on the evidence, the Immigration Judge found that Patel had not 

demonstrated by a preponderance of the evidence that he was physically 

present in the United States prior to December 21, 2000, and ordered him 

removed to India. Patel appealed to the BIA, which dismissed his appeal, 

concluding that Patel had not demonstrated that the IJ’s finding that he failed 

to meet his burden of proof was clearly erroneous. Patel now petitions this 

court to review the BIA determination.

II.

Both parties submit that we have jurisdiction to review the BIA’s 

determination under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA agrees 

with the factual determinations of the Immigration Judge, we review both the 

decision of the IJ and the BIA. Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 

2002). We review factual determinations under the substantial evidence 

standard, reversing only when the evidence compels a contrary conclusion. 

Nakimbugwe v. Gonzales, 475 F.3d 281, 283 (5th Cir. 2007). We must treat 

the BIA’s factual determinations as “conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 

1252(b)(4)(B).

III.

Patel asks us to overturn the BIA’s factual determination that he was 

not physically present in the United States prior to December 21, 2000. At his 

removal hearing in 2011, Patel bore the burden of proof by a preponderance of 

the evidence standard. See 8 C.F.R. § 1245.10(n). The IJ, and the BIA, found 

that Patel did not meet his burden. The evidence supporting this 

determination is: Patel’s inconsistent testimony; Patel’s inability to explain 

3

 Case: 13-60680 Document: 00512824965 Page: 3 Date Filed: 11/04/2014
No. 13-60680

why his Form I-213 bore an entry date of 2002; the absence of an entry date on 

Patel’s I-485; the inadequacy of Patel’s supporting documentation; Patel’s 

failure to produce testimony from his previous employer. We cannot say that 

this evidence is insubstantial. 

Because the BIA’s determination is supported by substantial evidence, 

we DENY Patel’s petition1. 

 

1 Petitioner’s motion to file a supplemental letter brief out-of-time is GRANTED.

4

 

 Case: 13-60680 Document: 00512824965 Page: 4 Date Filed: 11/04/2014