Luis Miguel Silva Marmolejo v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
LUIS MIGUEL SILVA MARMOLEJO,
Petitioner,
v.
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
No. 20-9611
(Petition for Review)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY, and HOLMES, Circuit Judges.
_________________________________
Luis Miguel Silva Marmolejo, a Mexican national, petitions for review of a
Board of Immigration Appeals’ (BIA) decision affirming an immigration judge’s (IJ)
denial of cancellation of removal. To the extent we have jurisdiction under 8 U.S.C.
§ 1252(a), we deny the petition for review. Otherwise, we dismiss the petition for
lack of jurisdiction.
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 20, 2021
Christopher M. Wolpert
Clerk of Court
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I
In 2010, the government charged Marmolejo with entering the United States
without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). He conceded
the charge but applied for cancellation of removal, which is a form of discretionary
relief. To be eligible, he had to show, among other things, that he was “of good
moral character during” the ten years preceding his application, id. § 1229b(b)(1)(B).
A person who gives false testimony during that time to obtain immigration benefits
cannot be found to be “of good moral character.” Id. § 1101(f)(6).
At a hearing before an IJ, Marmolejo signed an amended application for
cancellation of removal, affirming under oath that its contents were true and correct
to the best of his knowledge. The application indicated that he initially entered the
United States in 1998 and returned to Mexico only twice—once in April 2000
through June 2000, and a second time in December 2000 through January 2001. On
direct examination, he confirmed these dates and explained that he returned to
Mexico in April because his mother was ill. He testified that he expected to be there
for only one week, but he ended up staying until June because he was unable to come
back to the United States, although he could not remember why. He also testified
that he had no contact with immigration officials at the border in 2000.
On cross-examination, however, Marmolejo admitted this testimony was
untruthful. At first, he maintained that he had returned to Mexico only in April and
December of 2000 and that he had no contact with immigration officials in the year
2000. He also maintained that he could not remember what prevented him from
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reentering the United States between April and June, when he expected to be gone for
only one week. But when the government presented photos of him after he was
apprehended by immigration officials along the border some ten times between April
2000 and January 2001, Marmolejo conceded each time that, in fact, he had
attempted to reenter the United States and that he had been repeatedly removed by
immigration officials. He recalled some details of those apprehensions, including
that he was caught on or near a train three times and several times while walking. He
also testified that between June and December 2000, when he originally testified that
he was in the U.S., he actually was living in Mexico on the streets or in a church.
The government reminded him of his previous testimony in which he stated that he
had reentered the United States in June 2000 and stayed until December of that year
and asked him if that testimony was “a lie.” Admin. R., vol. 1 at 158. Marmolejo
replied, “Well, yes, in a way, it’s just that I don’t remember. I tried to come many
times and I couldn’t.” Id. The government pressed him on this point and asked if he
was admitting that he was untruthful in testifying that he was in the United States
from June until December 2000. Marmolejo replied, “Yes.” Id. at 159.
The IJ pretermitted the application for cancellation of removal and ordered
Marmolejo removed to Mexico, ruling he was ineligible for cancellation of removal
because he failed to establish good moral character. The IJ explained that 8 U.S.C.
§ 1101(f)(6) precludes a finding of good moral character for anyone who falsely
testifies under oath to obtain immigration benefits. The IJ recited Marmolejo’s
testimony on direct examination and noted that he repeatedly denied encountering
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immigration officials despite having several opportunities to correct his testimony.
The IJ also noted that after he was confronted with the government’s rebuttal
evidence, he attempted to clarify his testimony by saying he was simply outside of
the United States and could not reenter. But the IJ found that his initial testimony
could not be attributed to faulty memory and instead that Marmolejo had given false
testimony under oath to obtain immigration benefits.
The BIA affirmed, ruling that none of the IJ’s findings were clearly erroneous,
including that Marmolejo lacked good moral character, and thus Marmolejo was
ineligible for cancellation of removal. Although Marmolejo submitted new evidence
with his appeal—an affidavit in which he attempted to explain his testimony—and
requested a remand, the BIA denied a remand and refused to consider the affidavit.
The BIA reasoned that its appellate review was limited to the record before the IJ and
a remand was unwarranted because the affidavit was unlikely to change the outcome
of the case. Accordingly, the BIA dismissed the appeal.
II
Marmolejo now contends the BIA erred in: (1) affirming the IJ’s finding that
he lacked good moral character; and (2) failing to consider his affidavit. 1
1 Marmolejo also contends he satisfied the continuous presence requirement of
8 U.S.C. § 1229b(b)(1)(A) because his defective notice to appear did not trigger the
stop-time rule of § 1229b(d)(1). The IJ ruled against him on this issue, but the BIA
expressly ruled in his favor, stating, “contrary to the Immigration Judge’s finding, the
[government’s] service of the [notice to appear] . . . did not trigger the stop-time rule
for purposes of cancellation of removal.” Admin. R., vol. 1 at 4. “Nonetheless,” the
BIA continued, “even assuming [Marmolejo] accrued the requisite period of
continuous physical presence, he has not otherwise demonstrated his eligibility for
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We review the BIA’s decision as the final order of removal, though “when
seeking to understand the grounds provided by the BIA, we are not precluded from
consulting the IJ’s more complete explanation of those same grounds.” Uanreroro v.
Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We review “the BIA’s legal
determinations de novo,” but “administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” Xue v.
Lynch, 846 F.3d 1099, 1104 (10th Cir. 2017) (internal quotation marks omitted). Our
jurisdiction is limited to reviewing constitutional claims and questions of law. See
8 U.S.C. § 1252(a)(2)(D); Galeano-Romero v. Barr, 968 F.3d 1176, 1182 (10th Cir.
2020). We do not have jurisdiction to review “the discretionary aspects of a decision
concerning cancellation of removal[,] . . . includ[ing] any underlying factual
determinations . . . .” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir.
2009).
A. Lack of Good Moral Character
Marmolejo first contests the IJ’s finding that he lacked good moral character.
To the extent he asks us to reweigh the evidence and “find that [he] did not have the
subjective intent to give false testimony,” Pet’r’s Br. at 17, we have no jurisdiction to
do so. See Arambula-Medina, 572 F.3d at 828. 2
cancellation of removal” because he failed to establish good moral character. Id.
Thus, Marmolejo’s failure to show good moral character was dispositive.
2 For the first time in his reply brief, Marmolejo contends we have jurisdiction
to review the IJ’s lack-of-good-moral-character finding because it is a mandatory bar
to his eligibility for cancellation of removal. “[W]e generally do not consider issues
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Marmolejo also argues, however, that he did not give “false testimony” within
the meaning of 8 U.S.C. § 1101(f)(6) because the inaccuracies in his testimony were
not “for the purpose of obtaining any benefits under” the immigration laws. Citing
Kungys v. United States, 485 U.S. 759 (1988), he contends that misrepresentations
made for other reasons, such as fear, do not show lack of good moral character. He
says he testified falsely, not with the intent to gain any benefit under the immigration
laws, but because he was fearful of the government’s lawyer. We are not persuaded.
Section 1101(f)(6) states, “No person shall be regarded as, or found to be, a
person of good moral character who . . . has given false testimony for the purpose of
obtaining any benefits under” the immigration laws. This provision does not cover
willful misrepresentations based on fear, but “it denominates a person to be of bad
moral character on account of having given false testimony if he has told even the
most immaterial of lies with the subjective intent of obtaining immigration or
naturalization benefits.” Kungys, 485 U.S. at 780. Absent some explanation for a
false statement, an IJ may infer an intent to obtain immigration benefits. See Matter
of Gomez-Beltran, 26 I. & N. Dec. 765, 769-70 (B.I.A. 2016). And the IJ here
rejected Marmolejo’s explanation that he did not remember being in Mexico from
raised for the first time in a reply brief, except when those issues relate to
jurisdictional requirements.” Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994)
(citation omitted). To the extent this argument bears on our jurisdiction, we will
consider it. But it is unavailing because, while good moral character is a prerequisite
for a discretionary grant of cancellation of removal, see 8 U.S.C. § 1229b(b)(1)(B),
the IJ’s finding that Marmolejo failed to establish good moral character underlays the
denial of discretionary relief, which is beyond the scope of our review, see
Arambula-Medina, 572 F.3d at 828.
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June through December 2000—which differs from his current explanation—stating,
“While the Court appreciates that perhaps one stop [by immigration officials] may
have been a slip of memory, a total of 10 stops over a 9 month time period and a
duration of time living on the streets in Juarez, is not a slip of memory.” Admin. R.,
vol. 1 at 165. The IJ clearly inferred, and specifically so found, that Marmolejo
falsely testified with the subjective intent of obtaining immigration benefits. We
have no jurisdiction to reweigh the evidence and make an alternative finding.
Marmolejo also argues that the BIA should have treated his false testimony as
weighing against his credibility rather than establishing his lack of good moral
character. Relying on Yong Chen v. Holder, 429 F. App’x 699, 704 (10th Cir. 2011),
where we upheld an adverse credibility finding based in part on the inconsistency and
implausibility of the alien’s testimony, Marmolejo contends the inconsistences in his
testimony may support an adverse credibility finding, but the IJ had no need to go
further and find that his false testimony showed a lack of good moral character.
We lack jurisdiction to consider this argument because Marmolejo failed to
exhaust it in the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order
of removal only if . . . the alien has exhausted all administrative remedies available to
the alien as of right[.]”); Galeano-Romero, 968 F.3d at 1180 n.3 (concluding court
lacked jurisdiction to consider unexhausted argument because it was not presented to
the IJ or to the BIA). Although Marmolejo asked the BIA to remand his case to the
IJ because his new affidavit was “essential to a credibility finding . . . and ultimately
a good moral character finding,” Admin. R., vol. 1 at 32, he did not cite Yong Chen
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or argue that the IJ’s evaluation of his testimony should be limited to assessing his
credibility. “[A]n alien must present the same specific legal theory to the BIA before
he or she may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237
(10th Cir. 2010). Marmolejo’s failure to exhaust this argument deprives us of
jurisdiction to consider it.
B. New Evidence Before the BIA
Lastly, Marmolejo challenges the BIA’s refusal to consider his new
evidence—the affidavit in which he attempted to explain his testimony before the IJ.
The BIA declined to consider the affidavit, reasoning that its review was constrained
to the record before the IJ. See 8 C.F.R. § 1003.1(d)(3)(iv)(A) (explaining the BIA
“will not engage in factfinding”). Indeed, the BIA “has procedural rules governing
the introduction of evidence, and under those rules[, new evidence submitted on
appeal to the BIA is] not timely submitted and [is] not an official part of the record.”
Solomon v. Gonzales, 454 F.3d 1160, 1164 (10th Cir. 2006), superseded by statute on
other grounds, 8 U.S.C. § 1158(b)(1)(B)(ii). Thus, the BIA did not err in refusing to
consider the affidavit. To the extent Marmolejo asks us to consider it, we decline to
do so because our review is limited to “the administrative record on which the order
of removal is based,” 8 U.S.C. § 1252(b)(4)(A). 3
3 Marmolejo’s opening brief does not adequately challenge the denial of his
request for a remand. Although it cites the relevant standard of review and quotes
cases discussing the BIA’s authority to remand proceedings, Marmolejo’s arguments
do not contend the BIA erred in declining to remand the case to the IJ; rather, his
arguments focus specifically on the BIA’s refusal to accept and consider for itself the
new evidence while on appeal. See Pet’r’s Br. at 19 (“The Board should accept new
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III
The petition for review is denied in part and dismissed in part.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
evidence on appeal. . . .”); id. (“the Board should accept the evidence”). Thus, we
need not consider the BIA’s refusal to remand the case to the IJ. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (declining to consider inadequately
presented issue). Even if the issue were adequately presented, however, there was no
abuse of discretion. See Galeano-Romero, 968 F.3d at 1186. Motions for remand are
governed by the same standards that apply to motions to reopen, id., so Marmolejo
had to show new facts that “would likely change the result in the case,” Maatougui v.
Holder, 738 F.3d 1230, 1240 (10th Cir. 2013) (internal quotation marks omitted).
The BIA concluded he failed to carry his burden because the affidavit merely
attempted to explain his testimony before the IJ. Marmolejo insists the affidavit
demonstrates his fear during the hearing, but it confirms he gave false testimony, and
thus, it was unlikely to change the outcome of the case.
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