UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1526

FRANCIS D. COOPER,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A46830567)

Argued: November 28, 2006 Decided: February 7, 2007

Before NIEMEYER and MICHAEL, Circuit Judges, and Joseph R. GOODWIN,

United States District Judge for the Southern District of West

Virginia, sitting by designation.

Petition denied by unpublished per curiam opinion.

ARGUED: Randy Olen, Providence, Rhode Island, for Petitioner.

Scott Anton Chutka, UNITED STATES DEPARTMENT OF JUSTICE, Office of

Justice Programs, Washington, D.C, for Respondent. ON BRIEF: Peter

D. Keisler, Assistant Attorney General, Civil Division, Cindy S.

Ferrier, Senior Litigation Counsel, Office of Immigration

Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Francis D. Cooper, a Liberian, came to the United States

when he was fourteen years old after being adopted by two U.S.

citizens. Less than a year later, his adoptive parents sent Cooper

back to Liberia, where he remained for two and one-half years.

When Cooper attempted to reenter the United States, he was detained

and charged as an inadmissible alien under 8 U.S.C.

§§ 1182(a)(6)(C), (7)(A) because he lied to immigration officials

and did not have a visa. The charges were sustained by the

immigration judge (IJ) and the Board of Immigration Appeals

(Board), and Cooper petitions for review. We deny the petition,

concluding that Cooper was correctly classified as an alien seeking

admission, see 8 U.S.C. § 1101(a)(13)(C)(ii), and that the evidence

supports both grounds of inadmissibility. 

I.

Cooper is a 21-year-old native and citizen of Liberia.

In 1998 Cooper and his sister, Deena, were adopted by Christian and

Cherine Smith, both U.S. citizens. Cooper was admitted to the

United States as a legal permanent resident (LPR) on November 25,

1998. According to Cooper, his and his sister’s relationship with

the Smiths deteriorated shortly after their arrival. Cooper

contends that the Smiths became angry after his sister wrote an

essay at school criticizing the Smiths’ treatment of her and
3

Cooper. Certain documents in the administrative record, however,

indicate that the Smiths came to believe rather quickly that the

Cooper children’s biological mother never intended to relinquish

her parental rights. In any event, in June 1999 the Smiths

purchased two airline tickets to Liberia for Cooper and his sister.

Cooper believed that he was going to Liberia for summer vacation

and that he would return to the United States for the start of the

fall semester. Cooper departed without his green card, and the

Smiths told him the card was still in the process of being issued.

The government states that a green card was actually issued to

Cooper while he was in this country. The Smiths apparently

retained possession of the card.

In August 1999 Cooper called the Smiths to arrange his

return trip to the United States. The Smiths said that he could

not return until the (former) INS finished processing his green

card. Cooper called five more times over the next few months.

Each time, the Smiths told him the same story. Finally, in March

2000 the Smiths told Cooper that the U.S. authorities would not

issue a green card. Cooper did not speak with the Smiths again.

Cooper remained in Liberia for another 18 months. He

lived with his maternal aunt and completed his high school

education. In November 2001 Cooper obtained a transportation

letter from the United States Consulate in Liberia. (A

transportation letter functions as a temporary replacement for a
4

green card and permits a legal permanent resident who has lost his

card to travel to the United States.) Cooper then purchased a

ticket to the United States.

Cooper arrived in Baltimore, Maryland, on December 19,

2001, where he was detained and questioned by immigration

officials. After being placed under oath, Cooper maintained that

he lost his green card while dancing at a club in Monrovia,

Liberia. He also told the officials that he had last been in the

United States on August 15, 2001. The INS issued Cooper a Notice

to Appear (NTA) and initiated removal proceedings. The NTA alleged

that Cooper was an inadmissible alien on the grounds that he (1)

willfully misrepresented a material fact in order to gain

admission, see 8 U.S.C. § 1182(a)(6)(C)(i), and (2) did not possess

a valid unexpired immigrant visa, see § 1182(a)(7)(A)(i)(I). 

After a hearing the IJ sustained both charges in the NTA

and ordered Cooper removed to Liberia. The Board adopted the IJ’s

decision and added limited discussion of its own. We therefore

review both decisions. See Kataria v. INS, 232 F.3d 1107, 1112

(9th Cir. 2000).

II.

We may overturn a final order of removal only if it is

“manifestly contrary to law,” 8 U.S.C. § 1252(b)(4)(C), or is not

supported by substantial evidence, Gandziami-Mickhou v. Gonzales,
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445 F.3d 351, 354 (4th Cir. 2006). With this standard of review in

mind, we consider the agency determinations that (1) Cooper was an

alien seeking admission to the United States, and (2) that he was

inadmissible under both charges in the NTA. 

A.

The IJ first determined that Cooper was seeking admission

to the United States when he arrived in Baltimore. As a general

rule, legal permanent residents are presumptively entitled to enter

the United States without “seeking an admission” under 8 U.S.C.

§§ 1181, 1182. See 8 U.S.C. § 1101(a)(13)(C). There are six

exceptions to this rule, however, and a returning LPR must seek

admission if he falls within any one of them. Id.

§ 1101(a)(13)(C)(i)-(vi); see also In re Collado-Munoz, 21 I. & N.

Dec. 1061, 1064 (BIA 1998); Tineo v. Ashcroft, 350 F.3d 382, 386

(3d Cir. 2003). One of the exceptions is when the LPR has “been

absent from the United States for a continuous period in excess of

180 days.” Id. § 1101(a)(13)(C)(ii). There is no dispute that

Cooper was absent from this country continuously for more than 180

days because he concedes that he remained in Liberia from June 1999

to December 2001, almost two and a half years. Accordingly, the IJ

did not err in concluding that Cooper was seeking admission to the

United States.
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B.

As an alien seeking admission, Cooper could be excluded

on any of the grounds listed in 8 U.S.C. § 1182 (“Inadmissible

Aliens”). The IJ determined, and the Board agreed, that Cooper was

inadmissible for two reasons: he lacked a valid immigrant visa,

§ 1182(a)(7)(A)(i)(I), and he made material misrepresentations to

the immigration officials, § 1182(a)(6)(C)(i).

1.

An alien is inadmissible if at the time of application

for admission he does not possess “a valid unexpired immigrant

visa, reentry permit, border crossing identification card, or other

document required by this Act.” 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Cooper does not contest the government’s assertion that he arrived

in Baltimore without a visa. Nor does Cooper dispute that his Form

I-551 (green card) expired in June 2001, one year after he left the

United States. See 8 C.F.R. § 211.3 (A Form I-551 “shall be

regarded as unexpired . . . before the first anniversary of the

date on which [the alien] departed from the United States.”).

Cooper did not renew his green card while he was in Liberia, and he

did not acquire any other visa before arriving in the United

States. The undisputed facts thus support the IJ’s (and the

Board’s) conclusion that Cooper is inadmissible under

§ 1182(a)(7)(A)(i)(I).
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2.

The IJ also concluded, and the Board again agreed, that

Cooper was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). This

provision states, “Any alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure . . . a visa,

other documentation, or admission into the United States . . . is

inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). Cooper made at least

two misrepresentations in order to gain admission to the United

States. During his interview with the immigration officials in

Baltimore, Cooper stated (1) that he lost his green card while

dancing at a club in Monrovia, Liberia, and (2) that he was last in

the United States on August 15, 2001. Both statements were

misrepresentations of fact. The only question is whether the

misrepresentations were willful and material.

A misrepresentation is willful if the alien voluntarily

spoke with the knowledge that the statement was false. See Forbes

v. INS, 48 F.3d 439, 442 (9th Cir. 1995). Cooper admits that he

acted on his own volition, knowing that both statements were false.

The falsehoods were also material. The test for materiality is

whether “(1) the alien is [inadmissible] under the true facts, or

(2) the misrepresentation tends to shut off a line of inquiry which

is relevant to the alien’s eligibility.” Matter of Boromand, 17 I.

& N. Dec. 450, 452 (BIA 1980). Cooper argues that the

misrepresentations were not material because he was entitled to
*

It is not necessary for us to reach Cooper’s argument that

the IJ and the Board erred in determining that he had abandoned his

LPR status. Even if Cooper retained his LPR status, he was still

absent from the country for more than 180 days and therefore

properly classified as an alien seeking admission. Cooper was, of

course, inadmissible for the reasons stated in part II.B, supra.

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enter this country as a legal permanent resident. This argument

fails. As we have already determined, Cooper was inadmissible

under “the true facts” because his green card had expired. See 8

U.S.C. § 1182(a)(7)(A)(i)(I). Accordingly, the misrepresentations

were both material and willful, and the IJ’s finding of

inadmissibility under § 1182(a)(6)(C)(i) is supported by

substantial evidence. 

III.

In sum, Cooper was an alien seeking admission to the

United States because he was absent from the country for more than

180 days. There is sufficient evidence to support the

determination of the IJ and the Board that Cooper was inadmissible

on two alternative grounds, that he did not possess a valid

immigrant visa and that he made willful and material

misrepresentations in order to obtain admission.*

PETITION DENIED