1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0170p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

G OVINDBHAI K ANTILAL P ATEL ; V IDHYABEN P ATEL ; R INABEN P ATEL ; N ITINKUMAR G OVINDBHAI P ATEL , Petitioners ,

v

.

L ORETTA E. L YNCH , Attorney General, Respondent

. ┐ │ │ │ │ │ │ │ │ ┘ No. 15-3812

On Petition for Review of a Decision of the Board of Immigration Appeals. Nos. A072 169 666; A073 039 255; A098 516 094; A098 516 095
Decided and Filed: June 30, 2016 *
Before: CLAY, ROGERS, and McKEAGUE, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Michael E. Piston, Michele R. Re dburn, PISTON & CARPENTER PC, Troy, Michigan, for Petitioners. Julia J. Tyler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________ OPINION

_________________ PER CURIAM. Govindbhai Kantilal Patel, his wife Vidhyaben Patel, and their children Rinaben Patel and Nitinkumar Govindbhai Patel petiti on this court for review of an order of the

* This decision was originally issued as an “unpublished” opinion filed on June 30, 2016. The court has now designated the opinion as one recommended for full-text publication. 

### >No. 15-3812 Patel, et al. v. Lynch Page 2

Board of Immigration Appeals (BIA) dismissi ng their appeal from the denial of their applications for adjustment of status and denyi ng Rinaben Patel’s motion to sever and remand her removal proceedings.

Petitioner Govindbhai Patel has to ld the government two stories of how he came to this country: one, which he maintains here, is that he was smuggled across the border without being inspected, and the other, which he told the government in earlier immigration proceedings, is that
he entered the United States with a fraudulent vi sa. After the Department of Homeland Security charged him with multiple grounds of removab ility, Govindbhai Patel c onceded one of those grounds—that he was removable as an alien present without being admitted or paroled—and then applied to adjust status under INA § 245(i), a form of relief from removability available to him only if he entered without in spection. When the BIA denied his application and his family members’ derivative applications for § 245(i) relief because he did not prove that he had, in fact, entered without inspection (as opposed to having entered via a fraudulent visa), he cried foul— how could the BIA simultaneously hold that he is removable because he entered without inspection and that he is in eligible to adjust status under § 245(i) because he did not enter without inspection? The answer lies in the appl icable burdens of proo f: Govindbhai Patel bears the burden to prove that he satisfies all the requirements for adjustment of status, and his decision to concede a charge of re movability is not sufficient to meet his burden to affirmatively prove that he satisfies § 245(i)’s requirement of having entered the country without inspection.
The BIA’s denial of his and hi s family members’ applications to adjust status—with the exception of his daughter’s application, which the government agrees must be remanded—was
therefore not in error.

The Patels are natives and citizens of India. In 1994, Govindbhai Patel submitted an application for asylum and an application for employment authorizatio n, both of which stated
that he arrived in the United St ates at John F. Kennedy Internat ional Airport as a visitor on December 25, 1993. Vidhyaben Patel also submitted an asylum application, asserting that she arrived in New York as a visitor in February 1994 and that her husband had been in the United States for two years. In their asylum app lications, Govindbhai Patel and Vidhyaben Patel both denied traveling through a ny other country before ente ring the United States.No. 15-3812 Patel, et al. v. Lynch Page 3

In 1999, Jogmaya Corporation obtained an alien employment certification from the Department of Labor for a bookkeeper position. Jogmaya Corporation subsequently filed an immigrant petition for alien worker on behalf of Govindbhai Patel, which was approved in 2004.
Govindbhai Patel then submitted an a pplication for adjustment of stat us, in which he stated that
he arrived in the United States in New York as a B-2 visito r for pleasure on November 25, 1993, and that he was inspected by an immigration offi cer. Counsel’s cover le tter reiterated that
Govindbhai Patel “entered the US on November 25, 1993 as a B-2 visitor.” (AR 735). Vidhyaben Patel, Rinaben Patel, and Nitinkumar Pate l filed derivative adjustment applications. All four Patels filed supplements to their applica tions seeking adjustment of status under Section 245(i) of the Immigration and Nationality Act (I NA), 8 U.S.C. § 1255(i), in which they indicated that they entered the United States without inspection.
In an interview with an immigration offi cer in 2005, Govindbhai Patel stated under oath
that he entered the United States in New York with a visa on N ovember 23, 1993. In subsequent interviews, however, Govindbhai Patel stated under oath that he entered the United States on November 25, 1993, by crossing the border from Mexi co to California in a truck with a smuggler and that his family members also used smugglers to enter the United States.

In 2008, the United States Ci tizenship and Immigration Services (USCIS) denied Govindbhai Patel’s application for adjustment of status, as well as his family members’ derivative applications. Govi ndbhai Patel’s “continue d conflicting responses ” left the USCIS “trying to determine when or if [he] might be telling th e truth ever.” (AR 817).
In 2009, the Department of Homeland Securi ty (DHS) initiated removal proceedings against the Patels by filing notices to appear, char ging them with removabil ity as aliens present in the United States without being admitted or paroled in violation of INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Appearing before an immigration judge (IJ), the Patels conceded removability as charged and sought relief in the fo rm of adjustment of status pursuant to INA § 245(i). The DHS subsequently f iled additional charges against G ovindbhai Patel, asserting that he sought to procure an immigration benefit by fr aud or by willfully misr epresenting a material fact in violation of INA § 212(a)(6)(C)(i), 8 U. S.C. § 1182(a)(6)(C)(i), and that he was not in possession of a valid travel docum ent at the time of application for admission in violation of INANo. 15-3812 Patel, et al. v. Lynch Page 4

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Govindbhai Pa tel denied the new charges. At a hearing before the IJ, all four Patels te stified that they were smuggled into the United States—Govindbhai Patel and Vidhyaben Patel from Mexico to California and Rinaben Patel and Nitinkumar Patel from Canada to Michigan.
After considering the testimony of the witnesses and the docum ents in the record, the IJ denied the Patels’ applications for adjustment of status and ordered their removal to India. The
IJ found that Govindbhai Patel was not a credible witness based on the inconsistencies in his testimony and the documents, including his incons istent representations about his manner and date of entry into the United States, and on hi s demeanor during his testimony, frequently failing to answer questions or delaying his responses. The IJ determined that “the evidence in total demonstrates that [Govindbhai Patel] came to th e United States with a fraudulent visa” and that “he then changed his theory that he came to the United States without inspection so that he could qualify for an adjustment under” INA § 245(i). (AR 223). The IJ found that Govindbhai Patel failed to satisfy his burden of establishing eligibility for adjustment of status, that the DHS had proved removability under INA § 212(a)(6)(A)(i ) based on Govindbhai Pa tel’s concession to entering without inspection and under INA § 212(a)(7)(A)(i)(I) base d on Govindbhai Patel’s entry with a fraudulent visa, a nd that the DHS had proved the f actual allegation that Govindbhai Patel willfully misrepresented his manner of en try to the immigration officers who interviewed
him.
The Patels appealed the IJ’s decision to the BIA. While the appeal was pending, Rinaben
Patel filed a motion to sever and remand her cas e, asserting that she had married a lawful permanent resident who had file d a petition for alien relative on her behalf. The BIA dismissed the appeal and denied Rinabe n Patel’s motion. The BIA conc luded that the IJ’s adverse credibility determination was not clearly err oneous and that, given that determination,
Govindbhai Patel had failed to meet his burden of demonstrating en try without inspection to be eligible for adjustment of st atus pursuant to INA § 245(i).
The Patels petitioned this court for review of the BIA’s order. The government filed an unopposed motion to the BIA for clar ification of its decision, whic h we granted. On remand, the BIA again dismissed the appeal a nd denied Rinaben Patel’s motion. The BIA determined that itNo. 15-3812 Patel, et al. v. Lynch Page 5

was unnecessary to address whether Govindbhai Patel was removable under INA § 212(a)(7)(A)(i)(I) because he was removable under INA § 212(a)(6)(A)(i) based on his concession to entering without inspection. The BI A reiterated that the IJ ’s adverse credibility determination was not clearly erroneous and conc luded that Govindbhai Pate l had failed to carry his burden to show his manner of entry into the United States and demonstrate his eligibility for adjustment of status pursuant to INA § 245(i).
This timely petition for review followed. “Where the BIA reviews the immigration judge’s decision and issues a se parate opinion, rather than summ arily affirming the immigration judge’s decision, we review th e BIA’s decision as the final agency determination.” Khalili v.
Holder , 557 F.3d 429, 435 (6th Cir. 2009) . We review questions of law de novo but give substantial deference to the BIA’s interpreta tion of the INA and acco mpanying regulations, upholding that interpretation unless it is “arbitrary, capricious, or manifestly contrary to the
statute.” Id. at 435 (quoting Morgan v. Keisler , 507 F.3d 1053, 1057 (6th Cir. 2007)). Factual findings are reviewed for substantial eviden ce and “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Khozhaynova v. Holder , 641 F.3d 187, 191 (6th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)).
Govindbhai Patel applied for adju stment of status pursuant to INA § 245(i), which allows “an alien physically present in the United St ates” who “entered the United States without inspection” and who is the beneficiary of an a pplication for a labor certification to apply for adjustment of status. 8 U.S.C. § 1255(i)(1); see Cika v. Holder , 344 F. App’x 208, 216 (6th Cir. 2009). The application for a labor certification must have been filed on or before April 30, 2001, and the alien must have been physically pres ent in the United States on December 21, 2000. 8 U.S.C. § 1255(i)(1). The alien bears the burden of proving statutory eligibility for adjustment of status. 8 U.S.C. § 1229a(c)(4)(A)(i); Lockhart v. Napolitano , 573 F.3d 251, 254 (6th Cir. 2009). The BIA concluded that Govindbhai Patel ha d failed to satisfy his burden of proving his manner of entry into the United States. Given Govindbhai Patel’s inconsis tent representations
about his manner of entr y—initially claiming that he entered with a vi sitor visa and later claiming that he entered without inspection—the record does not compel a contrary conclusion.No. 15-3812 Patel, et al. v. Lynch Page 6

Govindbhai Patel contends that the BIA’s fi nding by clear and convincing evidence that he is removable under INA § 212(a)(6)(A)(i) estab lishes by a preponderance of the evidence that he entered without inspection to establish his eligibility for adjustment of status under INA § 245(i). The BIA stated that this result may appear “somew hat incongruous” but involved a proper application of the burdens of proof se t forth in the INA and accompanying regulations.

In a removal case where an alien has been char ged as being in the Un ited States without being admitted or paroled, as in this case, the DHS must first establish alienage. 8 C.F.R. § 1240.8(c). The DHS satisfied this burden when Govindbhai Patel conceded that he was not a
citizen or national of the United States and that he was a native and citi zen of India. “Once alienage has been established, unless the respondent demonstr ates by clear and convincing evidence that he or she is lawfully in the United States pursuant to a prior admission, the respondent must prove that he or she is clearl y and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged.” Id .; see 8 U.S.C. § 1229a(c)(2). Here, Govindbhai Patel did not attempt to satisfy this evidentiary burden and instead conceded the charge of removability.
With removability establishe d, Govindbhai Patel then requested relief from removal in the form of adjustment of status pursuant to INA § 245(i). An a pplicant for relief from removal “has the burden of proof to establish that [the applicant] satisfies the applicable eligibility requirements . . . and merits a favorable exerci se of discretion.” 8 U.S.C. § 1229a(c)(4)(i); see 8 C.F.R. §§ 1240.8(d), 1240.11(e). Govindbhai Patel asse rted that he was eligible for adjustment of status under INA § 245(i) as an alien who “en tered the United States without inspection” and was the beneficiary of an application for a la bor certification. Theref ore, Govindbhai Patel had the burden of proof to establish that he entered the United States without inspection. The BIA
determined that Govindbhai Pate l’s testimony, which lacked credib ility, and the lack of other
evidence failed to meet this burden. Giving deference to the BI A’s interpretation of the INA andNo. 15-3812 Patel, et al. v. Lynch Page 7

accompanying regulations, we conclude that the BIA’s decision involved a proper application of the different burdens of proof. 1

The government agrees that remand is necessary with respect to Rinaben Patel’s motion to sever and remand in light of the fact that the record shows that Govindbhai Patel’s labor certification was filed before April 30, 2001, and was approved. (A.R. 739).
For the foregoing reasons, we DENY the petition for review in part and REMAND for
further consideration of Rinaben Pa tel’s motion to sever and remand.

1 Govindbhai Patel also argues for the fi rst time in his reply brief that he is qualified to adjust status under INA § 245(i) as an applicant “who seeks adjustment of status to that of an immigrant under section 1153(b) and is not in a lawful nonimmigrant status.” See 8 U.S.C. § 1255(i)(1)(A)(ii); see also 8 U.S.C. § 1255(c). Beyond the fact that arguments presented for the fi rst time in a reply brief are waived, see, e.g. , Sanborn v. Parker , 629 F.3d 554, 579 (6th Cir. 2010), this argument is unavailing. While it is true that an applicant “who seeks adjustment of status to that of an immigrant under section 1153(b) and is not in a lawful nonimmigrant status” may adjust status under INA § 245(i), see § 1255(i)(1)(A)(ii) and § 1255(c), such an alien must also be admissible in order to adjust status, see § 1255(i)(2)(A). However, if Govindbhai Patel entered with a fraudulent visa, then the fraud would render him inadmissible, see 8 U.S.C. § 1182(a)(6)(C)(i). Thus, in order to adjust status under INA § 245(i), he needed to prove that he entered without inspection and that he did not enter with a fraudulent visa.