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Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

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Bodhi, Maya, Esq. Reza Athari & Associates, PLLC 6235 S. Pecos Road, Suite 109 Las Vegas, NV 89120

OHS/ICE Office of Chief Counsel - LVG 3373 Pepper Lane Las Vegas, NV 89120

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Name: ALVES DA SILVA, DULCINEA

A 096-905-188

Date of this notice: 9/27/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DcrutL ct1/VU
Donna Carr Chief Clerk

Enclosure Panel Members: Creppy, Michael J.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Dulcinea Alves Da Silva, A096 905 188 (BIA Sept. 27, 2013)

U.S. Department of Justice

Executive Office ,for Immigration Review Falls Church, Virginia 2204 I

Decision ofthe Board of Immigration Appeals

File: A096 905 188 - Las Vegas, NV

In

Date:

SER 17 2013

re: DULCINEA ALYES DA SILVA

IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Maya Bodhi, Esquire

Peter Eitel Assistant Chief Counsel

CHARGE: Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Termination The respondent, a native and citizen of Brazil, appeals from the Immigration Judge's October 6, 2011, decision, which, by incorporation of a written decision dated June 22, 20 11, sustained the charge of removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(6)(A)(i).1 The appeal will be dismissed. We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de nova all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.l(d)(3)(ii). We affirm the Immigration Judge's determination that the respondent is removable as charged, as the respondent, who does not dispute her alienage, did not meet her burden to demonstrate by clear and convincing evidence that she is lawfully in the United States pursuant to a prior admission, or that she is clearly and beyond doubt entitled to be admitted to the United States and is not inadmissible as charged. See 8 C.F.R. 1240.8(c); sections 240(c)(2) and 291 of the Act, 8 U.S.C. 1229a(c)(2), 1361; Matter ofBenitez, 19 I&N Dec. 173, 178 (BIA 1984) ("the burden and presumption of section291 of the Act are applicable with respect to any charge of deportability which draws into question the time, place, or manner of the alien's entry into the United States"). Specifically, we agree with the Immigration Judge that the respondent did not present sufficient evidence to support her claim that she was inspected and admitted to the United States at the San Ysidro Port of Entry on October 16, 2004. We are not persuaded by the respondent's assertion that the Immigration Judge's adverse credibility finding was clearly erroneous (l.J. at 5-7). See 8 C.F.R. 1003.l(d)(3)(i); Mondaca Vega v. Holder, 718 F.3d 1075, 1083 (9th Cir. 2013) (a finding is not "clearly erroneous" unless,
1

All citations to the Immigration Judge's decision are to the June 22, 2011, decision.
Cite as: Dulcinea Alves Da Silva, A096 905 188 (BIA Sept. 27, 2013)
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A096 905 188

based on the entire evidence, the reviewing court is left with "the definite and firm conviction that a mistake has been committed"); see also Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) (where a court is presented with two permissible views of the evidence, its choice between them cannot be clearly erroneous); Matter ofD-R-, 25 I&N Dec. 445, 455 (BIA 20 11). The Immigration Judge found that the respondent's testimony was inconsistent with her affidavit presented to U.S. Citizenship and Immigration Services in support of her application adjustment of status, Form 1-485. The respondent stated in her affidavit that after crossing the border at the San Ysidro Port of Entry, she realized that her passport was not stamped, and so she asked her companions in the car, who had picked her up in Mexico, whether the officer should have stamped it, and that her companion Jorge replied that had it been necessary, the officer would have done so (I.J. at 6; Tr. at 84-86; Ex. 6 at 3). At her hearing, however, the respondent testified that, while just a few meters away from the port of entry, she asked Jorge to turn around so she could obtain a stamp, but that he refused and said that he was not going to return to the port of entry (l.J. at Tr. at 84-85). When confronted with this omission from her affidavit that Jorge refused to return to the port of entry, the respondent provided an unresponsive and vague explanation (Tr. at 86-88). The Immigration Judge properly determined that this omission together with her unpersuasive explanations undermined her credibility (l.J. at 6). We are not persuaded by the respondent's contention that this omission was minor, and that her statements were not inconsistent with each other, as both statements went to the same concept that she was upset that her passport had not been stamped. See Resp. Br. at 15. Even a minor inconsistency or omission may be considered under the REAL ID Act. See section 240(c)(4)(C) of the Act; Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010) (under the REAL ID Act, an Immigration Judge "may consider any inconsistency," so long as the inconsistencies are considered in light of the "totality of the circumstances, and all relevant factors" (emphasis in original; citation omitted)). Moreover, even if the respondent's interpretation of the facts were a possible view of the record, that alone would not render the Immigration Judge's factual finding clearly erroneous. See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007); see also Anderson v. Bessemer City, supra, at 574; Matter ofD-R-, supra, at 455. In making the adverse credibility finding, the Immigration Judge also relied upon the respondent's implausible, evasive and inconsistent testimony as it relates to her past activities in the United States, such as being aware of the conditions of her nonimmigrant visa and whether she had knowledge of having violated the immigration laws by overstaying the visa, as well as the reasons given as to why she initially traveled to the United States (I.J. at 6-7). Notably, the respondent has not challenged these findings as being clearly erroneous. The Immigration Judge also found that the respondent provided no evidence corroborating her testimony that she was inspected and admitted in 2004. In particular, the Immigration Judge drew a negative inference from the fact that the respondent's companions, Jorge and Maria, refused to testify on her behalf out of fear of their concern that they had assisted the respondent to retwn to the United States unlawfully (I.J. at 5). The respondent has not shown this finding to be clearly erroneous. The Immigration Judge also found that the respondent did not present any evidence from other knowledgeable individuals, which the respondent has not disputed on appeal.

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Cite as: Dulcinea Alves Da Silva, A096 905 188 (BIA Sept. 27, 2013)

tJ- .>

A096 905 188

On appeal, the respondent has not presented convmcmg arguments to disturb the Immigration Judge's finding. See Resp. Br. at 6. Based on this record, we conclude that the Immigration Judge's finding not to credit the respondent's testimony was not clearly erroneous as it was a permissible view of the evidence.2 See 8 C.F.R. 1003.l(d)(3)(i); Matter of D-R-, supra, at 455. These issues diminished the respondent's credibility and undercut the persuasive value of her overall claim that she was inspected and admitted. See section 208(b)(1)(B)(iii) of the Act; Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) ("[E]ven where an [Immigration Judge] relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential by the fact-finder" (citation omitted)). We also agree with the Immigration Judge's evaluation of the respondent's corroborative evidence, which did not sufficiently rehabilitate her discredited testimony or independently satisfy her burden of proof (l.J. at 5). See section 240(c)(4)(C) of the Act. The respondent's assertion that the Immigration Judge erred in finding that she did not provide corroborating evidence because she did in fact present her passport and copies of her plane tickets is not persuasive. See Resp. Br. at 14. While this evidence supports the respondent's claim that she flew from Brazil to Mexico City and then from Mexico City to Tijuana on October 16, 2004, it does not corroborate her claim that she was inspected and admitted at the border. We discern no reason to disturb such findings. Because the respondent's testimony was not credible, and no other evidence independently established her burden of proof, the Immigration Judge correctly determined that she did not meet her burden to establish by clear and convincing evidence that she was inspected and admitted to the United States on October 16, 2004, and is not inadmissible to the United States as charged. See 8 C.F.R. 1240.S(c). Finally, we are not persuaded by the respondent's contention that her due process rights were violated because she has not been able to obtain a recording of her removal proceedings. See Resp. Br. at 17. She contends that she did not provide evasive and nonresponsive testimony, and that the interpreter made material errors that can only be verified by listening to the audio recording of the hearing. On appeal, the respondent has provided no evidence of any requests made to the Immigration Court to listen to the audio recording, and, more importantly, she has not identified any specific instances in the certified transcript of the proceedings in which the Immigration Judge found she was being evasive or unresponsive that she claims is clearly erroneous. For these reasons, we conclude that the respondent has not shown prejudice to support her due process claims. See Robleto-Pastora v. Holder, 591 F.3d 1051, 1062 (9th Cir. 20 10) ("In order to show a due process violation, an applicant must show prejudice," i.e., "the violation potentially affected the outcome of the proceedings"). 2 We note that even if the Immigration Judge erred in finding that the respondent provided evasive and nonresponsive testimony as part of his adverse credibility fmding analysis, the adverse credibility finding, nevertheless, is not clearly erroneous because the finding is otherwise supported by permissible considerations in the record that are not clearly erroneous (I.J. at 5-7).
3

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Cite as: Dulcinea Alves Da Silva, A096 905 188 (BIA Sept. 27, 2013)

.. -

A096 905 188

The following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security ("DHS"). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. 1229c(b); see also 8 C.F.R. 1240.26(c), (f). In the event the respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge's order. NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act. WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R. 1240.26(e)(l). WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. 1240.26(i).

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Cite as: Dulcinea Alves Da Silva, A096 905 188 (BIA Sept. 27, 2013)
-.1

UNITED ST AT ES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED ST A T ES IMMIGRAT ION COURT Las Vegas, File No. : Nevada October 6,

A 096 905 188

2011

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of DULCINEA ALVES DASILVA Respondent CHARGE: Section 212(a) (6) (A) (i) Nationality Act (Act), of the Immigration and as amended - an alien IN REMOVAL PROCEEDINGS

present in the United States without admission or parole1or who arrived in the United States at any time or place other than as designated by the Attorney General.

APPLICAT ION:

Post-conclusion voluntary departure.

ON BEHALF OF RESPONDENT : Maya Bodhi, Esquire

ON BEHALF O F OHS: Peter Eitel Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRAT ION JUDGE It was on October 6,

2011

that a hearing most recently was On this occasion the

convened regarding this removal proceeding.

Immigration Court observed that a contested inadmissibility/

removability issue has recently been resolved by the Immigration

Court with a determination that the respondent indeed is inadmissible/removable with reference to the aforementioned charge. Exhibits 2 through 7.

(
2011 that the respondent should

Moreover,

it was on October 6,

designated for herself Brazil,

the country of citizenship,

removal from the United States prove necessary.

Immigrant & Refugee Appellate Center | www.irac.net

Further,

during the October 6,

2011 hearing the Immigration

Court learnd there is no form of relief from removal currently sought by the respondent other than post-conclusion voluntary departure. The Department of Homeland Security does not oppose

the respondent receiving post-conclusion voluntary departure. Consequently, it is the decision of the Immigration Court

that the respondent be granted post-conclusion voluntary departure with the conditions that follow. The respondent must

post a $500 voluntary departure bond with the Department of Homeland Security no later than October 13, 2011. If the

respondent fails to timely post this voluntary departure bond her period of voluntary departure will end on October 6, 2011,

after which she will become the subject of an alternate order of removal from the United States to Brazil. If the respondent departure bond

succeeds in timely posting the same voluntary

with this she will be provided a 60-day period of voluntary departure ending December 5, 2011. Where the respondent fails to 2011,

voluntarily depart from the United States by December 5, thereafter again

she will become the subject of an alternate

order of removal from the United States to Brazil. ORDER IT IS HEREBY ORDERED that the respondent shall be granted

A 096 905 188

October 6,

2011

(
'

post-conclusion voluntary departure consistent with the terms of this decision.

Immigrant & Refugee Appellate Center | www.irac.net

States Immigration Judge

A 096 905 188

October 6,

2011

(
CERTIFICATE PAGE

hereby

certify

that

the

attached

proceeding

before

JUDGE RONALD L.

MULLINS,

in the matter of:

DULCINEA ALVES DASILVA

Immigrant & Refugee Appellate Center | www.irac.net

096 905 188

Nevada

Las Vegas, is an accurate,

verbatim transcript of the recording as provided by that this is the

the Executive Office for Immigration Review and original transcript thereof for the for Immigration Review.

file of the Executive Office

A-./7L
Susan A. Copes, Transcribe f Inc. Free State Reporting, December 19, 2011 (completion date)

By

submission of

this

CERTI FICATE

PAGE,

the Contractor certifies

that a Sony BEC/T-147, 4-channel transcriber or equivalent and/or CD, as described in Section C, paragraph C. 3. 3. 2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.