16-3827 Taman v. Sessions BIA Montante, IJ A078 330 707 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of February, two thousand eighteen.

PRESENT: DENNIS JACOBS, PETER W. HALL, DENNY CHIN, Circuit Judges. _____________________________________

WALID HASSAN TAMAN, AKA WALTER HASSAN TAMAN, Petitioner,

v. 16-3827 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Anne E. Doebler, Buffalo, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Derek C. Julius, Assistant Director; Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Walid Hassan Taman, a native and citizen of

Egypt, seeks review of an October 12, 2016, decision of the

BIA affirming an April 28, 2015, decision of an Immigration

Judge (“IJ”). In re Walid Hassan Taman, No. A 078 330 707

(B.I.A. Oct. 12, 2016), aff’g No. A 078 330 707 (Immig. Ct.

Buffalo Apr. 28, 2015). We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

We have reviewed the decision of the IJ as modified and

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

Justice,

(2d Cir. 2005); Yan Chen v.

Gonzales,

(2d Cir. 2005). The standards

of review are well established. See Y.C. v. Holder,

(2d Cir. 2013) (reviewing agency’s legal conclusions

de novo and factual findings for substantial evidence).

I. Adjustment of Status

We retain jurisdiction to review the agency’s

determination that Taman was statutorily ineligible for

adjustment of status. See Richmond v. Holder,

2 725, 728 (2d Cir. 2013); Harjinder Singh v. Gonzales,

(2d Cir. 2006). Accordingly, we review

whether Taman’s false statements of U.S. citizenship before

federal and state officials rendered him ineligible for

adjustment of status. See Ling Yang v. Mukasey,

(2d Cir. 2008) (holding that we retain

jurisdiction where “the discretionary determination is

based on the same grounds as the eligibility

determination”).

To qualify for adjustment of status, Taman had to prove

that he (1) had been inspected and admitted; (2) is

admissible; (3) has an immediately available immigrant visa

number; and (4) warrants a favorable exercise of

discretion. See

(a). The sole issue here is

whether Taman is inadmissible, and thus ineligible to

adjust, because he made false representations of U.S.

citizenship.

§ 1182(a)(6)(C)(ii). He is.

Taman argues that none of his statements in July and

August 2000 were made to obtain an immigration benefit.

Making a false claim of U.S. citizenship to apply for

documents that confer U.S. immigration benefits constitutes

a “purpose or benefit” rendering an applicant inadmissible.

3 Richmond, 714 F.3d at 729 n.4; see also Rodriguez v.

Gonzales,

(2d Cir. 2006) (holding that

applying for U.S. passport counts as “purpose or benefit”

triggering inadmissibility). Taman argues that the

documents he sought from federal agencies and the state of

Montana—a birth certificate, social security cards,

declarations of marriage, state-issued “no find” letters as

to his place of birth, and a student identification card—

were not made with the intent to derive an immigration

benefit because those documents do not confer such a

benefit on their own. But as the agency determined, Taman

held himself out as a U.S. citizen for the “immediate

purpose of obtaining identification documents under state

law and for the ultimate purpose of obtaining a U.S.

passport,” which would confer an immigration benefit. In re

Walid Hassan Taman, No. A 078 330 707 (B.I.A. Oct. 12,

2016); see Rodriguez,

. Taman does not

dispute that his intent was to gather various forms of

documentation to support a passport application.

Accordingly, the agency did not err in concluding that

Taman’s false claims of citizenship were made to obtain

documentation with the intent of securing a U.S. passport,

4 and thus rendered him inadmissible under

(a)(6)(C)(ii) and ineligible for adjustment of status.

Richmond, 714 F.3d at 729 n.4; Matter of Richmond,

(B.I.A. 2016) (holding that false claim

is made to obtain purpose or benefit where there is “direct

or circumstantial evidence” of “subjective intent of

achieving a purpose or obtaining a benefit under the Act or

any other Federal or State law” and an objective basis,

i.e., that “citizenship . . . actually affect or matter to

the purpose or benefit sought”), aff’d Richmond v.

Sessions,

(2d Cir. 2017) (summary

order) (deferring to BIA’s interpretation).

Taman also argued that he timely retracted any false

claim to U.S. citizenship by attempting to withdraw his

passport application. But the dispositive factor was his

subjective intent or purpose of eventually acquiring a

passport “at the time” that he made each of his false

statements. Matter of Richmond,

(explaining that false claim of citizenship on passport

application was fatal both because passport is “benefit,”

and because applicant had “purpose” of evading prohibition

against working where intent was to provide passport to

5 prospective employer).

Moreover, Taman cites no applicable authority for

applying a doctrine of “timely retraction.” His reliance

on the Foreign Affairs Manual is misplaced because that

guidance relates to regulations regarding visa processing

by foreign affairs officers, not removal proceedings. See

9 FAM 40.63 N4.6 (2011);

. To the extent

the BIA has recognized the possibility of recantation in

other contexts, it must be done voluntarily and without

delay. See Matter of Namio,

(B.I.A. 1973); see also Matter of M-,

,

119 (B.I.A. 1960); Matter of R-R-,

, 827

(B.I.A. 1949) (applying the principle when an alien

“voluntarily and prior to the exposure of the attempted

fraud,” corrected his testimony that he was an alien

lawfully residing in the United States); cf. Mei Juan Zheng

v. Mukasey,

(2d Cir. 2008) (suggesting

BIA consider applicability of timely recantation doctrine

in context of frivolousness filing based on withdrawn

asylum application). Taman presents no evidence that he

mailed his withdrawal letter or that it was received by the

passport office, and the only evidence reflects that he

6 waited a month to withdraw it and that he was already under

investigation, which calls into question the voluntariness

of any recantation. Finally, he never recanted the false

statements he made to other federal and state authorities

to obtain the documentation for the passport application.

II. Abandoned Asylum Application

Taman argues that the IJ should have provided him an

opportunity to apply for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”)

because he expressed a fear of returning to Egypt in his

2007 motion to reopen, and that the BIA should have

remanded his case for consideration of these forms of

relief. We find no abuse of discretion in the agency’s

refusal to consider this relief. See Dedji v. Mukasey

(2d Cir. 2008) (reviewing IJ decision

regarding deadlines for abuse of discretion); Li Yong Cao

v. U.S. Dep’t of Justice,

(2d Cir. 2005)

(reviewing denial of remand for abuse of discretion).

Neither Taman nor his counsel expressed to the IJ that

Taman wanted to apply for asylum or that he feared harm in

Egypt. Absent an allegation of fear, the IJ was not

obligated to advise Taman of the right to apply for asylum.

7 Cf. Matter of C-B-,

(B.I.A.

2012) (requiring IJ “to advise the respondent of the right

to apply for asylum or withholding of removal (including

protection under the [CAT]) and make the appropriate

application forms available” where respondent states a fear

of harm). Moreover, on appeal to the BIA, Taman did not

submit any previously unavailable evidence to demonstrate

his prima facie eligibility for asylum. See

(c)(1) (providing that motions to reopen must be

supported by material, previously unavailable evidence).

For the foregoing reasons, the petition for review is

DENIED. The pending motion for a stay of removal in this

petition is DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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