NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 19-1546 ______________

CONSTANTINO ORTIZ-LEZAMA, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________

On Petition for Review of a Decision of the Board of Immigration Appeals (A206-318-735) Immigration Judge: Steven A. Morley ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 22, 2020

Before: AMBRO, MATEY, and FUENTES, Circuit Judges

(Filed: February 27, 2020) ______________

OPINION* ______________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.

Constantino Ortiz-Lezama is a Mexican citizen who spent more than a decade

residing in the United States without permission. Following an arrest for driving under the

influence, he was placed in removal proceedings. The Board of Immigration Appeals

agreed with an Immigration Judge’s determination that he lacked the requisite good moral

character required to cancel his removal. We reach the same conclusion, and will thus deny

his petition.

I. BACKGROUND

Ortiz-Lezama is a native and citizen of Mexico who entered the United States

illegally in 2001. For many years, he regularly returned to Mexico to visit his family. On

several of those trips, Customs and Border Patrol agents apprehended Ortiz-Lezama, and

he voluntarily returned to his country. And then, each time, he reentered the United States.

In late 2008, while again visiting Mexico, Ortiz-Lezama and his wife decided to both come

to the United States and settle in Pennsylvania.

Five years later, Ortiz-Lezama was arrested for drunk driving and, as a result, placed

in removal proceedings. Seeking to remain in the United States, Ortiz-Lezama applied for

cancellation of removal. But an IJ found Ortiz-Lezama had helped his wife cross the

border, barring him from establishing good moral character. That issue is central to this

petition.

Ortiz-Lezama offered contradicting accounts of his wife’s arrival in the United

States. Before the IJ, he testified that his wife entered the country with help from a paid

guide Ortiz-Lezama hired. But he also provided affidavits and declarations stating that he

2 and his wife entered the United States together, without assistance.1 The IJ gave greater

weight to Petitioner’s testimony than to the contradictory affidavits and declarations and

found that by hiring the guide, Petitioner had helped smuggle his wife across the border.

As a result, the IJ held that Petitioner could not establish good moral character and was

ineligible for cancellation of removal. The IJ ordered Petitioner removed to Mexico.2

Petitioner appealed the IJ’s decision, but the Board dismissed his appeal, holding

that the IJ did not err in relying on Petitioner’s testimony over the affidavits and

declarations. The Board affirmed the IJ’s determination that Petitioner had failed to meet

his burden of proving good moral character. This petition followed.

II. ANALYSIS

Ortiz-Lezama’s petition essentially challenges the IJ’s finding that he helped

smuggle his wife across the border. To be eligible for cancellation of removal, a

nonpermanent resident must establish a record of good moral character for the ten years

immediately preceding the date of his application. 8 U.S.C. § 1229b(b)(1). Congress has

specified that a person who helps another illegally enter the United States fails that test.

(f)(3), 1182(a)(6)(E)(i); see Mejia-Castanon v. Att’y Gen.,

(3d Cir. 2019).

1 In one affidavit, Ortiz-Lezama stated that he did not want his wife to come to the United States, fearing the trip would be difficult and force her to leave behind their son. But, he continued, “she was adamant that she was coming.” (A.R. at 158.) Indeed, as they approached the border, he offered her one last chance to remain in Mexico, before she “walked off ahead of” him. (A.R. at 158.) 2 Separately, the IJ found Ortiz-Lezama did not establish ten years of continuous physical presence in the United States. Because we will deny the petition on the failure to establish good moral character, we do not address this conclusion. 3 We review a challenge to the IJ’s factual findings for substantial evidence. See

Abdulrahman v. Ashcroft,

(3d Cir. 2003). Under this standard, we only

reject an IJ’s factual findings “where a reasonable adjudicator would be compelled to arrive

at a contrary conclusion.” Mendez-Reyes v. Att’y Gen.,

(3d Cir. 2005).

Here, faced with contradicting accounts of how Ortiz-Lezama’s wife crossed the border,

the IJ reasonably credited his testimony over his affidavits and declarations. The hearing

testimony was subject to cross-examination, and included details that suggested accuracy.

Furthermore, the hearing testimony weakened his application for cancellation of removal,

and thus was unlikely to be the product of fabrication. The affidavits and declarations were

much the opposite: self-serving and lacking adversarial examination. Naturally, this lessens

their credibility.

We have noted the principle, in the context of the sham affidavit doctrine, that “[t]he

deposition of a witness will usually be more reliable than his affidavit, since the deponent

was either cross-examined by opposing counsel, or at least available to opposing counsel

for cross-examination.” Jimenez v. All Am. Rathskeller, Inc.,

(3d Cir.

2007) (alteration in original) (quoting Perma Research & Dev. Co. v. Singer Co.,

(2d Cir. 1969)). And “[w]hen a party does not explain [a] contradiction between

a subsequent affidavit and a prior deposition, it is appropriate for the district court to

disregard the subsequent affidavit and the alleged factual issue in dispute as a

‘sham[]’ . . . .” Id. at 254. In the present case, with these principles justifying the IJ’s

decision to credit Ortiz-Lezama’s testimony, no “reasonable adjudicator would be

4 compelled” to find that he did not engage in alien smuggling. Mendez-Reyes,

.3

III. CONCLUSION

For these reasons, we will deny this petition.

If Ortiz-Lezama challenges the Board’s affirmance of the IJ’s decision to give 3

more weight to his testimony than his affidavits, we lack jurisdiction to consider his claim. See Alimbaev v. Att’y Gen.,

(3d Cir. 2017); Green v. Att’y Gen.,

(3d Cir. 2012). Federal courts have jurisdiction to review “constitutional claims or questions of law.” McAllister v. Att’y Gen.,

, 183 (3d Cir. 2006). A challenge to an IJ’s balancing of facts is neither. See Jarbough v. Att’y Gen.,

(3d Cir. 2007).

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