United States Court of Appeals

For the First Circuit

No. 13-1208

ANOLDO URIZAR-CARRASCOZA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

John P. Garan on brief for petitioner.

Sabatino F. Leo, Trial Attorney, Office of Immigration

Litigation, Civil Division, U.S. Department of Justice, Stuart F.

Delery, Principal Acting Assistant Attorney General, Civil

Division, and Ernesto H. Molina, Jr., Assistant Director, on brief

for respondent.

August 12, 2013
LYNCH, Chief Judge. On September 27, 2010, an

immigration judge (IJ) denied Anoldo Urizar-Carrascoza's

applications for a waiver of inadmissibility pursuant to 8 U.S.C.

§ 1182(i); permission to reapply for admission pursuant to 8 U.S.C.

§ 1182(a)(9)(A); and a waiver of his unlawful presence pursuant to

8 U.S.C. § 1182(a)(9)(B)(v). Urizar-Carrascoza had sought this

relief in support of his adjustment of status petition pursuant to

8 U.S.C. § 1255(a).

Urizar-Carrascoza appealed the IJ's decision, and on

January 11, 2013, the Board of Immigration Appeals (BIA) dismissed

his appeal. Urizar-Carrascoza now timely petitions for review of

BIA's decision. We deny the petition.

I.

A. Factual Background and Procedural History

Urizar-Carrascoza is a native and citizen of Guatamela

who first entered the U.S. without inspection in 1995 through

Tucson, Arizona. Urizar-Carrascoza was apprehended by immigration

officials at that time and detained in El Paso, Texas, where he was

held in custody for thirteen days. He then posted a $1,500 bond

and was released from custody; as he was released from custody, he

was personally served with a notice to appear (NTA). However,

Urizar-Carrascoza did not appear at any proceedings related to this

NTA; he alleged that he "never received any notices," though he

gave his address to the authorities upon his release from custody

-2-
and continued living at that address for a year and a half. 

Urizar-Carrascoza conceded that he knew there were proceedings

against him to remove him from the U.S., and that he was due back

in court at some point, but he stated that he never contacted the

immigration authorities to find out when his next court date would

be. Urizar-Carrascoza was ordered deported in absentia on July 27,

1995, though he was never actually deported from the U.S. He

claimed that he did not learn he had been ordered removed until he

applied to adjust his status and appeared for an immigration

interview in 2004.

In 1997, Urizar-Carrascoza married a legal permanent

resident in Providence, Rhode Island, and in 1998 his wife gave

birth to their first child, a U.S. citizen, in Providence. UrizarCarrascoza returned to Guatemala in 1999. In 2000, he applied in

person at the U.S. embassy in Guatemala for a visa to return to the

U.S. Urizar-Carrascoza testified that he was interviewed by a U.S.

government official, and that he did not tell the official that (1)

he had been detained by U.S. immigration authorities; (2) he had

been ordered removed from the U.S.; or (3) he was married. UrizarCarrascoza stated that no official asked him for this information,

and that he was not required to fill out a visa application in

order to apply for a visa. Urizar-Carrascoza was awarded the visa

and used it to travel to the U.S. several times between 2000 and

2002. He stated that in the course of using this visa, he never

-3-
told any U.S. government officials that he had been detained or

ordered deported by U.S. immigration authorities, or that he was

married.

Urizar-Carrascoza most recently entered the U.S. in

August 2002, and has not left the U.S. since that entry. He stated

that he decided to overstay his visa because his wife was due to

give birth to their second child in October 2002, and he did not

want to leave her alone. Urizar-Carrascoza's wife gave birth to a

second child in 2002 and to a third child in 2009, both in

Providence, Rhode Island.

On December 3, 2001, Urizar-Carrascoza's wife became a

U.S. citizen. In May 2003, she filed a petition for alien relative

on Urizar-Carrascoza's behalf (Form I-130), and Urizar-Carrascoza

filed an application to adjust his status (Form I-485). In his

Form I-485, Urizar-Carrascoza disclosed that he had been arrested

in Arizona in 1995 by immigration authorities, but did not disclose

that he had been ordered removed from the United States. UrizarCarrascoza had an immigration interview regarding his application

on June 3, 2004, and testified that he learned for the first time

at this interview that he had been ordered deported in absentia in

1995.

That day, the Department of Homeland Security (DHS)

served Urizar-Carrascoza with an NTA charging that he was removable

as an alien who "procured [his] admission, visa, adjustment, or

-4-
other documentation or benefit by fraud or by willfully

misrepresenting a material fact, to wit: Being ordered deported

from the United States on 07/27/1995," pursuant to 8 U.S.C.

§ 1227(a)(1)(A). At removal proceedings on November 17, 2004,

Urizar-Carrascoza, by counsel, admitted these allegations and

conceded the charge of removability. The following exchange

occurred between Urizar-Carrascoza's attorney and the IJ:

Judge: It says here he, he's charged with entry by fraud. Okay. 

So you're admitting that he did enter by fraud --

Counsel: Yes, Your Honor.

Judge: -- but you want a waiver.

Counsel: Yes, Your Honor.

Later at the same hearing, the following exchange occurred:

Judge: . . . And you, you didn't know that he'd been previously

ordered deported?

Counsel: No. I could find, I could find no evidence of that and

he was unclear of the circumstances.

At further removal proceedings on February 15, 2006,

Urizar-Carrascoza's attorney stated that "I'm not convinced that

[Urizar-Carrascoza's I-130 application] is going to get approved,

given the history of the case. He attained his nonimmigrant visa

by fraud." At continued removal proceedings on April 8, 2009,

Urizar-Carrascoza's attorney stated that Urizar-Carrascoza was

applying for permission to reapply for admission (Form I-212) and

for a waiver of inadmissibility (Form I-601): "[t]he I-212 covering

the previous deportation and the I-601 for the unlawful presence

-5-
and for any type of . . . . misrepresentation on the B-2 visa." In

April 2009, Urizar-Carrascoza filed these applications.

On October 26, 2009, DHS lodged an additional charge

against Urizar-Carrascoza, alleging that he was removable pursuant

to 8 U.S.C. § 1227(a)(1)(B), because he "remained in the United

States beyond the period of [his] authorized stay." At removal

proceedings held that day, Urizar-Carrascoza by counsel admitted

these allegations and conceded the additional charge of

removability.

A merits hearing was held in Urizar-Carrascoza's removal

proceedings on September 27, 2010, at which Urizar-Carrascoza

testified as described above. He did not, however, withdraw his

concessions that he was removable on the basis of fraud and

unlawful presence. The government, likely in reliance upon UrizarCarrascoza's admission of fraud, did not submit into evidence a

copy of Urizar-Carrascoza's 1995 deportation order, nor did it

submit any nonimmigrant visa application filed by UrizarCarrascoza. 

B. The IJ's Decision and the BIA's Affirmance Thereof

On September 27, 2010, the IJ denied Urizar-Carrascoza's

applications for waivers of inadmissibility relating to fraud and

unlawful presence, and also denied his application for permission

to reapply for admission. The IJ also denied Urizar-Carrascoza's

application to adjust status. The IJ granted voluntary departure

-6-
to Urizar-Carrascoza, but issued an alternate order of removal to

Guatemala in the event Urizar-Carrascoza failed to comply with the

voluntary departure order.

The IJ found that when Urizar-Carrascoza applied for a

U.S. visa in 2000, he did not reveal to the consular officer that

he had a wife and a U.S. citizen child, both of whom were in the

United States. The IJ also found that Urizar-Carrascoza failed to

reveal to U.S. consular officials that he had previously been in

the U.S. for four years, and that he had been ordered removed from

the U.S. The IJ acknowledged that the government had not submitted

any nonimmigrant visa application filed by Urizar-Carrascoza, but

stated that he was "entitled to take judicial notice of the fact

that a nonimmigrant visa application is required of all applicants

who come to the United States with a visitor's visa, except for

those perhaps who come under the Visa Waiver Program." The IJ also

found that "it is likely that the respondent came to the United

States [in 2002] with the intention of remaining in this country

for the purpose of becoming a permanent resident."

The IJ noted "that the respondent has conceded his

fraudulent behavior" and that "[t]he respondent's admission of

fraud is well grounded." The IJ stated that Urizar-Carrascoza's

"efforts to minimize his fraud are particularly disturbing." The

IJ then found:

[I]t is extremely doubtful if any set of circumstances

exist in which the respondent would have been allowed to

-7-
come to the United States as a visitor if he had revealed

that he had been in the United States for four years

illegally, that he was married and that his wife was in

the United States, likely as a permanent resident, and

that he had a United States citizen child.

The IJ stated that if either the fraud waiver or the

unlawful presence waiver were the only waiver Urizar-Carrascoza was

applying for, he might be entitled to have his application granted. 

However, the IJ found that "[t]he respondent says that he never

received notice [of his 1995 removal proceedings] and this is

highly unlikely, in that he indicated he lived at that address for

a year and a half and he was ordered to be deported in July of

1995." The IJ thus found "a culmination of factors which reflect

an intention and plan on the part of the respondent to circumvent

the Immigration laws in order to gain permanent residence in this

country," and that Urizar-Carrascoza had "gained all of the

equities which he contends should allow him to be excused from his

fraud by virtue of having engaged in that fraud." Finding that

Urizar-Carrascoza's wife had support systems in the U.S. and was

"young and healthy," and that Urizar-Carrascoza would be able to

"participate in the orderly Immigration process" after removal, the

IJ denied Urizar-Carrascoza's applications for waivers and for

permission to reapply as a matter of discretion, and granted

voluntary departure.

Urizar-Carrascoza appealed the IJ's decision, and on

January 11, 2013, the BIA dismissed his appeal. The BIA rejected

-8-
Urizar-Carrascoza's claim that DHS failed to establish that he was

inadmissible by virtue of fraud and that he therefore did not

require a fraud waiver; it also rejected his contention that the IJ

failed to explain his decision, as a matter of discretion, to deny

Urizar-Carrascoza's applications.

II.

Where the BIA issues its own opinion, we review both that

opinion and any portion of the IJ's opinion that the BIA adopted. 

Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004). Where we have

jurisdiction to review the BIA's decisions, we subject its factual

determinations to deferential review under the substantial evidence

standard, id. at 5, meaning that we uphold these determinations

unless "any reasonable adjudicator would be compelled to conclude

to the contrary," 8 U.S.C. § 1252(b)(4)(B).

Urizar-Carrascoza makes two arguments in his petition for

review: (1) the BIA erred in finding that he was removable due to

having gained admission to the U.S. by fraud; and (2) the BIA erred

in concluding that the IJ properly analyzed the facts in denying

his applications for waivers of inadmissibility and permission to

reapply for admission.

A. The Agency's Finding of Removability Due to Fraud

The Immigration and Nationality Act (INA) provides that

"[a]ny alien (including an alien crewman) in and admitted to the

United States shall, upon the order of the Attorney General, be

-9-
removed if the alien is within one or more of the following classes

of deportable aliens," which includes "[a]ny alien who at the time

of entry or adjustment of status was within one or more of the

classes of aliens inadmissible by the law existing at such time is

deportable." 8 U.S.C. § 1227(a)(1)(A). The INA classifies as

inadmissible "[a]ny alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure (or has sought to

procure or has procured) a visa, other documentation, or admission

into the United States or other benefit provided under this chapter

is inadmissible." 8 U.S.C. § 1182(a)(6)(C)(i).

In removal proceedings, the government has the burden of

"establish[ing] the facts supporting deportability by clear,

unequivocal, and convincing evidence." Woodby v. INS, 385 U.S.

276, 277 (1966). However, "[i]f the respondent admits the factual

allegations and admits his or her removability under the charges

and the immigration judge is satisfied that no issues of law or

fact remain, the immigration judge may determine that removability

as charged has been established by the admissions of the

respondent." 8 C.F.R. § 1240.10(c).

Substantial evidence supported the agency's determination

that Urizar-Carrascoza was removable as an alien who procured a

visa by fraud. Urizar-Carrascoza twice conceded, by counsel, that

he was removable on the basis of fraud. Urizar-Carrascoza argues

that the first concession, at the November 17, 2004 hearing, was

-10-
"de facto withdrawn just moments after it was made," when his

counsel said that Urizar-Carrascoza "was unclear of the

circumstances." However, reading this statement in context makes

clear that his client was unclear about the circumstances of the

order of deportation, and not his concession of fraud in procuring

a visa.

Urizar-Carrascoza does not claim that he ever explicitly

withdrew his concession to the charge of fraud. Notwithstanding

Urizar-Carrascoza's testimony at the September 27, 2010 merits

hearing, the IJ was entitled to "rel[y] upon [his] concession to

the facts alleged in the NTA in determining that he was removable

as charged." Karim v. Mukasey, 269 F. App'x 5, 8 (1st Cir. 2008).

B. The Agency's Denial of Urizar-Carrascoza's Applications

for Waivers and for Permission to Reapply

The INA provides that "[n]o court shall have jurisdiction

to review a decision or action by the Attorney General regarding a

waiver" relating to fraud or unlawful presence. 8 U.S.C.

§ 1182(a)(9)(B)(v), 1182(i)(2). Urizar-Carrascoza concedes that

this court likewise has no jurisdiction over decisions regarding

permission to reapply for readmission to the United States. See

Andrade v. Attorney Gen. of U.S., 312 F. App'x 452, 454 (3d Cir.

2008) (concluding that court lacks jurisdiction over agency's

denial of petitioner's application to reapply for admission).

However, 8 U.S.C. § 1252(a)(2)(D) also provides that:

-11-
Nothing in subparagraph (B) or (C), or in any other

provision of this chapter (other than this section) which

limits or eliminates judicial review, shall be construed

as precluding review of constitutional claims or

questions of law raised upon a petition for review filed

with an appropriate court of appeals in accordance with

this section.

Urizar-Carrascoza identifies no "constitutional claims or questions

of law" implicated by the agency's decisions regarding his

applications for waivers and for permission to reapply for

admission. Instead, he relitigates whether the factors relevant to

this discretionary relief were appropriately weighed by the IJ and

BIA, and whether the agency's factual findings were accurate. We

lack jurisdiction to entertain these arguments.

III.

Urizar-Carrascoza's petition for review is denied.

-12-