Matter of Gomez-Beltran: Good Moral Character Bar for Giving False Testimony in Immigration Proceedings
Introduction: The Matter of Gomez-Beltran
On June 27, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision titled the Matter of Gomez-Beltran, 26 I&N Dec. 765 (BIA 2016) [PDF version]. The case concerned whether an alien who was applying for cancellation of removal was barred from establishing good moral character because the government alleged, during the period for which he was required to establish good moral character, he had given false testimony under oath in immigration proceedings before an immigration judge with the subjective intent of obtaining immigration benefits. Ultimately, the Board held that if an alien, during the period for which he or she is required to establish good moral character, gives false testimony under oath in proceedings before an immigration judge with the subjective intent of obtaining immigration benefits, the alien is barred from establishing good moral character under section 101(f)(6) of the Immigration and Nationality Act (INA).
Although the Matter of Gomez-Beltran addresses the issue in the cancellation of removal context, the establishment of good moral character is required for other forms of immigration relief and for naturalization. In this article, we will discuss the facts of the case, the Board's reasoning in reaching its decision, and the effects of the decision going forward. To learn about the conditional bars to good moral character, please see our full article [see article].
Facts of Gomez-Beltran
The respondent in the Matter of Gomez-Beltran was a native and citizen of Mexico. He had last entered the United States on January 1, 2007. He was subsequently placed in removal proceedings for being present in the United States without being admitted or paroled. The applicant sought relief in the form of cancellation of removal [see article]. The following is a list of the key events from his immigration proceedings:
In the respondent's application for cancellation of removal, he claimed that he had only one criminal conviction.
When the respondent testified before the Immigration Judge, he initially stated that he had never been convicted of a criminal offense. The respondent admitted that he had one criminal conviction after his counsel reminded him that he had listed it on his application for cancellation of removal.
In response to a question from his counsel, the respondent denied that he had any other criminal convictions aside from the one he had admitted to on his application for cancellation of removal.
On cross-examination, the respondent reaffirmed his claim that he had no arrests or convictions other than the one that he had admitted to on his application for cancellation of removal.
On cross-examination, the Department of Homeland Security (DHS) then confronted the respondent with a series of specific dates and offenses that he had failed to disclose either on his application for cancellation of removal or in his testimony under oath before the Immigration Judge. The Board noted that the application for cancellation of removal explicitly requires that the applicant fully list all of his or her arrests and convictions.
Under questioning by DHS, the respondent initially did not correct his prior misrepresentation or “voluntarily reveal the extent of his criminal history.” The respondent instead waited until the DHS confronted him with each incident individually before admitting to additional arrests and criminal convictions. The respondent ultimately admitted five arrests or convictions that he had neither included in his application for cancellation of removal nor disclosed in the hearing before the Immigration Judge until the DHS had confronted him with each one.
The Immigration Judge found that the respondent gave false testimony regarding his criminal history at the immigration hearing and that he was not credible. Based on this finding, the Immigration Judge found that the respondent lacked good moral character under section 101(f)(6) and was therefore statutorily ineligible for both cancellation of removal and voluntary departure. The Immigration Judge additionally denied the respondent's applications for relief from removal as an exercise of discretion.
Key Statutes
Under section 101(f)(6) of the INA, an alien is barred from establishing good moral character for the period for which the alien must establish good moral character if he or she “has given false testimony for the purpose of obtaining any [immigration] benefits” [see section].
In order to qualify for non-permanent resident cancellation of removal under section 240A(b), section 240(a)(b)(1) requires that the applicant have been a person of good moral character for at least 10 years immediately preceding the date of his or her application for cancellation of removal.
Analysis and Decision
Under section 240(c)(4), an applicant for cancellation of removal has the burden of establishing that he or she (1) is eligible for cancellation of removal and (2) merits a favorable exercise of discretion.
The Board cited to the Matter of L-D-E, 8 I&N Dec. 399, 402 (BIA 1959) [PDF version], in stating that “testimony” in section 101(f)(6) pertains only to statements made under oath. “False statements” do not include statements made on an application (meaning that section 101(f)(6) would not be in play in the instant case if the respondent had only made false statements on his application for cancellation of removal). Under Supreme Court precedent in Kungys v. U.S., 485 U.S., 759, 780 (1988) [PDF version], section 101(f)(6) applies to any oral statements made under oath with a subjective intent to obtain immigration benefits. Accordingly, the false testimony need not be material in order to trigger the section 101(f)(6) bar to good moral character.
The Board explained that under section 240(b)(1) of the INA, immigration judge shall “take witness testimony under oath at transcribed hearings.” Under Ninth Circuit precedent in Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981)1 [PDF version], false statements made under oath in proceedings before an immigration judge may constitute false testimony under section 101(f)(6). In the Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988) [PDF version], the Board held that false statements at a deportation hearing rendered an alien ineligible for voluntary departure.
In the Matter of Gomez-Beltran, the respondent argued that his testimony was not untruthful “because he honestly answered questions regarding specific offenses and dates and that it only appeared inconsistent when he was asked 'vague, open-ended questions.'” However, the Board rejected the respondent's argument. First, they noted that the questions were not “vague,” but rather were “simple and direct.” Second, the Board found that the respondent “was given ample opportunity to disclose all of his arrests and convictions before he was confronted by the DHS.” Third, the Board held that there was no evidence that he did not understand the questions. The respondent further argued that his interpreter at the hearing was faulty, but the Board found that “he has made no showing on appeal that the interpreter did not perform competently.”
The Board held that although the respondent did eventually answer questions regarding his criminal history truthfully, “this does not undermine the fact that he made false statements when initially asked about his arrests and convictions.” Furthermore, the Board noted that the respondent did not “fully and voluntarily” disclose his criminal history, but rather only admitted to additional arrests and convictions “when specifically confronted” with each one by the DHS. In the Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) [PDF version], the Board held that in order to not be subject to the section 101(f)(6) bar to good moral character after making a false statement under oath, “the recantation must be voluntary and without delay.” In Valdez-Munoz v. Holder, 623 F.3d 1304, 1310 (9th Cir. 2010) [PDF version], the Ninth Circuit held that relief is not available when a person “supposedly recants only when confronted with evidence of his prevarication.” The Board found that the respondent did not make a “a timely recantation of his false testimony.”
The Board noted that when asked why he did not fully disclose his criminal activities, the respondent replied that he “did not know.” The Board found that the Immigration Judge did not err in rejecting this response as unpersuasive and that the respondent's response response “raises a strong inference” that he made false statements “with the subjective intent” to prevent his criminal record from being considered by the Immigration Judge in determining his statutory eligibility for cancellation of removal and determining whether he merited a favorable exercise of discretion.
The Board explained that in determining whether an applicant for an immigration benefit gave false testimony within the meaning of section 101(f)(6), “the trier of fact must make a case-by-case assessment.” To this effect, the Board cited to U.S. v. Hovsepian, 422 F.3d 883 (9th Cir. 2005) [PDF version].
The Board agreed with the Immigration Judge that the respondent “actively sought to mislead the court regarding the extent of his criminal history…” Accordingly, the Board found that the Immigration Judge did not err in finding that the respondent had made false statements under oath with a “subjective intent to deceive” or to influence the Immigration Judge's decision regarding the respondent's applications for relief from removal. Therefore, the Board found that the Immigration Judge was correct in finding that the respondent was precluded from establishing good moral character under section 101(f)(6), and he was, therefore, ineligible for cancellation of removal under section 240A(b)(1)(B) and for a grant of voluntary departure. Additionally, the Board agreed with the Immigration Judge that the respondent did not merit a favorable exercise of discretion under section 240(c)(4)(A)(ii) with regard to his applications for relief from removal. The Board cited to Aragon-Salazar v. Holder, 769 F.3d 699, 706-07 (9th Cir. 2014) [PDF version], in which the Ninth Circuit held that an Immigration Judge may consider an applicant's lack of truthfulness during a hearing as part of the discretionary determination of whether the respondent merits immigration relief.
Accordingly, the Board held that the Immigration Judge properly denied the respondent's applications for cancellation of removal and voluntary departure. The Board dismissed the respondent's appeal.2
Conclusion: Matter of Gomez-Beltran
In the Matter of Gomez-Beltran, the Board made clear that giving false testimony under oath in an immigration proceeding with the subjective intent to obtain an immigration benefit will constitute a conditional bar to good moral character under section 101(f)(6). The decision follows longstanding Board precedent from the Matter of Namio as well as the Matter of G-L-T-, 8 I&N Dec. 403 (BIA 1959) [PDF version], and the Matter of Ngan, 10 I&N Dec. 725 (BIA 1964) [PDF version], that false testimony under oath in a “quasi-judicial hearing” (which encompasses immigration hearings) is included within the meaning of section 101(f)(6).
An applicant for any immigration benefit should be truthful during all parts of the immigration process. The fact that making misrepresentations to obtain immigration benefits is illegal should be enough to be truthful when seeking immigration benefits. However, the Matter of Gomez-Beltran shows that doing so can be fatal to an alien's immigration prospects. It is important to remember that the Government is staffed by professionals who are trained to detecting attempts by aliens to misrepresent facts for immigration purposes. While we will never know whether the respondent in Gomez-Beltran would have been granted cancellation of removal or voluntary departure had he been truthful, we can be sure that both the Board and the Immigration Judge relied upon his misrepresentations to deny his applications for relief on statutory and discretionary grounds. A person in immigration proceedings should always consult with an experienced immigration attorney for a full evaluation of his or her particular situation.
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- Phinpathya v. U.S. was reversed by the Supreme Court on other grounds in INS v. Phinpathya, 104 S.Ct. 584 [PDF version].
- The Board also denied the respondent's motion to remand the record to the Immigration Judge for consideration based on his newly submitted evidence and allegations of ineffective assistance of counsel.