VELEZ v. ATTORNEY GENERAL OF U.S.
MARIO ALEXANDER RENDON VELEZ, Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES.
No. 10-2515.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit LAR 34.1(a) July 13, 2011.
Opinion filed: July 18, 2011.
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges.
NOT PRECEDENTIALOPINIONPER CURIAM.
Mario Alexander Rendon Velez, a native and citizen of Colombia, petitions for review of the order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's order pretermitting Velez's application for an adjustment of status under 8 U.S.C. § 1255, and denying his application for asylum and other relief.
Velez originally entered the United States in 1994 without inspection, admission, or parole. He filed an asylum application in April 1994, and married Latricia Sherell Delaine, a United States citizen, in December 1994. Delaine filed a Form I-130 petition on Velez's behalf, which was approved in 1995. Velez paid an agency to help him complete his Immigrant Visa application; he then travelled to the United States Embassy in Bogota, Colombia, in January 1996, to complete the visa process. On his return to the United States in May 1996, Velez applied for admission as an intending immigrant with an immigrant visa. The Immigration and Naturalization Service ("INS"), however, determined that he was excludable, charging him with inadmissibility under 8 U.S.C. §§ 1182(a)(6)(C)(i) [INA § 212(a)(6)(C)(i)] (fraud or willful misrepresentation of a material fact), 1182(a)(7)(A)(i)(I) [INA § 212(a)(7)(A)(i)(I)] (no valid immigrant visa or entry document), and 1182(a)(2)(A)(i)(II) [INA § 212(a)(2)(A)(i)(II)] (conviction on a violation of state law relating to a controlled substance). The INS alleged that Velez did not disclose his prior arrests for shoplifting and for drug trafficking in 1994 and 1995 in Question No. 34 of his sworn immigration visa application.1 The exclusion hearing was held in New York over the course of three days in October 1996, and March and July 1997. When Velez failed to appear at the hearing in July 1997 (he appeared one hour after the hearing had ended), the Immigration Judge ("IJ") ordered him excluded in absentia. Velez continued to live in the United States. He divorced his first wife in 2005, and, later that year, he married a naturalized citizen, Jackeline Ospina, with whom he has four children. In 2008, the IJ granted Velez's motion to reopen the exclusion proceedings. During the pendency of reopening proceedings, Velez's second wife filed an I-130 petition, which was approved in 2009. Velez then filed with the United States Citizenship and Immigration Services ("USCIS") a Form I-485 application for adjustment of status and a Form I-601 application for waiver of grounds for inadmissibility under INA § 212(h) and (i). The USCIS denied both applications on April 29, 2009. For relief from exclusion, Velez applied in Immigration Court for an adjustment of status and for asylum, withholding of removal, and for protection under the Convention against Torture ("CAT"), claiming that he feared returning to Colombia because he feared the "guerillas who cause violence." The Government proceeded on its charges that Velez fraudulently or willfully misrepresented a material fact—his prior arrests—to gain entry to the United States, and that he arrived in the United States without a valid passport or any form of identification. It did not proceed, however, on excludability under § 1182(a)(2)(A)(i)(II) (excludable based on his Maryland controlled substance charge), a charge that the Government had withdrawn in March 1997. (See A.R. at 892.)
After a hearing at which Velez testified,2 the IJ rendered a written decision on January 5, 2010, pretermitting Velez's application for an adjustment of status for lack of jurisdiction, and denying asylum and other relief. The IJ found Velez to be inadmissible pursuant to § 1182(a)(6)(C)(i), based on his misrepresentation about prior arrests on his visa immigration form. In doing so, the IJ rejected Velez's argument that his failure to disclose his prior arrests on Question No. 34 of the immigrant visa application was neither willful nor material. See Pet'r's App. Vol. I at A-46. Specifically, the IJ found that Velez spoke Spanish fluently, the application was written in both Spanish and English, and that Velez knew that he had been arrested before he completed the application in 1995 and when he swore to the truth of the application in 1996.3 Id. The IJ also found that the misrepresentation was material because Velez's failure to disclose his arrests "shut off a line of inquiry" that was relevant to his eligibility for admission and would have provided a ground for his exclusion. Id. at A-46-47. The IJ concluded that Velez was also inadmissible under § 1182(a)(7)(A)(i)(I), finding that the 1996 immigrant visa was not valid because Velez divorced his first wife in 2005, and thus, he no longer qualified as "an immediate relative" for immigration purposes. Id. at A-47. As for Velez's application for adjustment of status, the IJ pretermitted the application for lack of jurisdiction because Velez had not returned to the United States in 1996, after being granted advance parole. Id. at A-52.
1. Velez was arrested for shoplifting in Wayne Township, New Jersey, on September 22, 1994, and in Morristown, New Jersey, on November 22, 1995. Pet'r's App. Vol. 2 at A-323. He was convicted of both shoplifting charges in 1997, and ordered to pay fines. Id. at A-350-51. On July 8, 1995, he was arrested in Maryland for "distribution of cocaine," which the State of Maryland dismissed by nolle prosequi a month later. Id. at A-322 & A-353.
2. We need not recite the facts regarding his asylum claim as Velez concedes that "[t]he IJ fact-finding is correct and appears impartial." Pet'r Br. at 9; see IJ fact-findings, Pet'r's App. Vol. 1 at A-48-49.
3. Velez completed his immigrant visa application on January 26, 1995, well after his 1994 arrest for shoplifting in Wayne Township, New Jersey. Pet'r's App. Vol. 2 at A-211. By the time he swore to the truth of the application on February 5, 1996, he knew that he had been arrested for shoplifting twice and for the Maryland drug charge.
4. "In the case of an arriving alien who is placed in removal proceedings, the [IJ] does not have jurisdiction to adjudicate any application for adjustment of status filed by the arriving alien unless: (A) The alien properly filed the application for adjustment of status with USCIS while the arriving alien was in the United States; (B) The alien departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue the previously filed application for adjustment of status; (C) The application for adjustment of status was denied by USCIS; and (D) DHS placed the arriving alien in removal proceedings either upon the arriving alien's return to the United States pursuant to the grant of advance parole or after USCIS denied the application." (emphasis added) 8 C.F.R. § 1245.2(a)(1)(ii).
5. We note that although the attorney who filed Velez's motion to reopen in April 2008 affirmed that he attached a copy of a grant of advance parole as "Exhibit H," there is no such document or "Exhibit H" attached to his affirmation. (see Affirmation of Jorge Guttlein, Esq.[in support of motion to reopen], A.R. 825; Pet'r's App. at A-675.) Counsel stated further in his affirmation that Velez "supports his motion to reopen with declarations and other evidentiary materials. . . . See Exhibits A though G," (see A.R. 828) with no mention of an "Exhibit H." (A.R. at 828; Pet'r's App. at A-678.) Velez does not argue in his brief that there is documentation of a grant of advance parole, and we find none, in the administrative record.
6. Velez did not apply for any type of waiver before the IJ. He did, however, raise the question of a waiver under INA § 212(i) during the course of the hearing on his fraudulent misrepresentation charge held on September 2, 2009. Pet'r's App. at A-213. The IJ declined to consider the "theoretical" issue of a waiver, reasoning that because no jurisdiction existed to consider Velez's adjustment of status, the IJ lacked jurisdiction to consider the waiver question. Id.
7. Velez has not challenged the denial of withholding of removal or of CAT relief in this Court. Hence, we will not review the BIA's decisions as to these forms of relief.