Maldonado v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
May 25, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 05-60924
_______________________
MARTIN GONZALEZ-MALDONADO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:
Petitioner Martin Gonzalez-Maldonado (“Gonzalez”) appeals
a Board of Immigration Appeals (“BIA”) decision finding him
statutorily ineligible for cancellation of removal and voluntary
departure. Because Gonzalez did not give false testimony about his
address for the purpose of obtaining immigration benefits, see
8 U.S.C. § 1101(f)(6), we GRANT the petition for review.
I. BACKGROUND
Martin Gonzalez-Maldonado illegally entered the United
States in 1989 at the age of fourteen. He lived and worked in the
United States illegally until he met with a California attorney,
Roberto Fernandez, in 2001 to “fix his status” through an asylum
application. Even though Gonzalez was living in New Mexico, he

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1 The allegations in Gonzalez’s asylum application are not at issue in
this case.
2 The record does not include a transcript of the March 2001 asylum
hearing.
2
followed the attorney’s instructions to put the attorney’s
California mailing address on the application to ensure that the
attorney would receive important court documents through the mail.
By signing the application, Gonzalez swore that its contents were
either “all true or not all true.”1
At an interview with an asylum officer in March 2001,
Gonzalez testified that he had lived in southern California since
December 2000, despite having signed a declaration in which he
swore to tell the truth during his interview. The officer’s notes
specifically indicate the oath was administered.2 Nevertheless,
the officer concluded that Gonzalez was ineligible for asylum and
referred his case to an immigration judge (“IJ”).
Gonzalez appeared before an IJ and conceded removability,
withdrew his asylum application, and sought relief in the form of
cancellation of removal or voluntary departure. Gonzalez testified
before the IJ that he had told the asylum officer during his March
2001 interview that he had lived in California since December 2000,
even though he was actually living in New Mexico. He also
testified that the asylum officer had asked if the information in
the application was correct, and that he had answered yes, even
though he knew the address was incorrect. Gonzalez recounted that

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3
he had put the attorney’s California address on the application at
the attorney’s direction.
On April 19, 2004, the IJ denied cancellation of removal
and voluntary departure, concluding that Gonzalez could not show
good moral character because he gave false testimony at the asylum
hearing in March 2001 with the subjective intent of obtaining
immigration benefits. The BIA adopted and affirmed the IJ’s
opinion on August 2, 2005. Gonzalez now petitions for review in
this court.
II. STANDARD OF REVIEW
The BIA concluded that Gonzalez was statutorily
ineligible for relief because he lacked good moral character. This
legal conclusion is reviewable de novo under the REAL ID Act. See
8 U.S.C. § 1252(a)(2)(D); Hernandez-Castillo v. Moore, 436 F.3d
516, 519 (5th Cir.), cert. denied, 127 S. Ct. 40 (2006). The BIA’s
fact findings are reviewed for substantial evidence. See Lopez-
Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001) (per curiam).
Under the substantial-evidence standard, a decision will be
affirmed unless the “evidence compels a contrary conclusion.”
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). This
court reviews only the decision of the BIA and not that of the IJ,
except to the extent that the IJ’s decision influenced the BIA’s
decision. Id. Here, the BIA expressly “adopt[ed] and affirm[ed]”
the IJ’s decision.

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3 We need not speculate on the IJ’s reliance on the written application
because there was some proof of an oath confirming it. Cf. Kungys, 485 U.S. at
780, 108 S. Ct. at 1551 (“‘testimony’ is limited to oral statements made under
oath”); Beltran-Resendez, 207 F.3d at 287 (“false written statement is not false
testimony under § 1101(f)”).
4
III. DISCUSSION
A. False Oral Testimony
To qualify for cancellation of removal, Gonzalez must
show that he possessed “good moral character” for the ten years
preceding his application for relief. See 8 U.S.C. § 1229b(b)(1).
A person does not have good moral character if he “has given false
testimony for the purpose of obtaining any benefits under this
chapter.” 8 U.S.C. § 1101(f)(6). “‘[T]estimony’ is limited to
oral statements made under oath . . . [and] with the subjective
intent of obtaining immigration benefits.” Kungys v. United
States, 485 U.S. 759, 780, 108 S. Ct. 1537, 1551 (1988); see also
Beltran-Resendez v. INS, 207 F.3d 284, 287 (5th Cir. 2000).
Gonzalez argues that he did not provide false oral
testimony during his March 2001 asylum interview. He notes that
the asylum officer failed to mark on the asylum application whether
Gonzalez had certified whether the facts in the application were
true.3 However, the asylum officer’s notes show that Gonzalez
testified that he had lived in California since December 2000, even
though he was then actually living in New Mexico. Gonzalez
admitted to the IJ that he had lied about his address to the asylum
officer.

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Gonzalez also contends there is no evidence that he
provided an oral oath at the asylum hearing. Kungys, however, does
not require that the oath be given orally; only the false
statements need be made orally. See 485 U.S. at 778, 108 S. Ct. at
1551; Beltran-Resendez, 207 F.3d at 287. There is substantial
evidence in the record that Gonzalez signed an oath before the
asylum officer in which he swore “to tell the truth during [the]
interview.” Accordingly, the BIA’s conclusion that Gonzalez
provided false oral testimony is supported by substantial evidence.
B. Subjective-Intent Requirement
Going to the heart of this case, Gonzalez contends that
the false testimony about his address was not made with the
subjective intent to obtain immigration benefits. A finding that
Gonzalez has given false testimony is alone insufficient to
establish that he lacks good moral character. See 8 U.S.C.
§ 1101(f)(6). The statute also provides that the misrepresentation
must have been “made with the subjective intent of obtaining
immigration benefits.” Kungys, 485 U.S. at 779-80, 108 S. Ct. at
1551. Misrepresentations made for other reasons like embarrass-
ment, fear, or a desire for privacy do not meet this requirement.
Id. at 780, 108 S. Ct. at 1551. Although Kungys rejected a materi-
ality requirement because no such requirement appears in the
statutory text, the Court pointedly observed that
it will be relatively rare that the Government will be
able to prove that a misrepresentation that does not have

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the natural tendency to influence the decision regarding
immigration or naturalization benefits was nonetheless
made with the subjective intent of obtaining those
benefits.
Id. at 780-81, 108 S. Ct. at 1551.
This court explained the Supreme Court’s subjective
intent requirement in Liwanag v. INS, 872 F.2d 685 (5th Cir. 1989),
which held that the BIA correctly refused to grant voluntary
departure, a decision also governed by § 1101(f)(6), because the
alien’s misrepresentation about his marital status showed his bad
moral character. Id. at 688, 690. The alien’s false testimony
was both material and subjectively intended to obtain immigration
benefits; the success of his visa application turned precisely on
his marital status. Id. at 686, 689; see also 8 U.S.C.
§ 1153(a)(2). Liwanag fell squarely within § 1101(f)(6), as there
could be no other purpose in his misrepresentation than to obtain
the desired immigration benefit.
Liwanag is distinguishable from this case. Gonzalez’s
misrepresentation is immaterial because his address had no bearing
on his receipt of immigration benefits. We understand that
§ 1101(f)(6) “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 receiving
immigration or naturalization benefits.” Kungys, 485 U.S. at 780,
108 S. Ct. at 1551. Nevertheless, the Government has a more
difficult burden to show that Gonzalez made an immaterial

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misrepresentation with such intent. See id. The record concerning
his misstated address demonstrates, if anything, that Gonzalez
lacked the subjective intent to use the false testimony improperly.
He provided his lawyer’s address in Santa Ana, California, to the
asylum officer after the lawyer told him it would facilitate the
lawyer’s receiving court appearance notices. His subjective
intent, fairly viewed, was to facilitate the immigration process,
not to predetermine or influence its favorable outcome. He was not
thereby demonstrating “bad moral character.”
Reinforcing this benign characterization of Gonzalez’s
intent is his otherwise spotless record as an employee, a husband
and father, all of which the IJ acknowledged, but failed to include
in the overall finding of intent. Notably, the IJ repeatedly
stated that she was “favorably impressed” with Gonzalez,
specifically finding that he was a nationally recognized employee
of the Marriott Corporation who had worked hard to support himself
and his family. In addition, the IJ was impressed with Gonzalez’s
efforts as a good husband and father to assimilate into this
country and become “a respected member of the community.” See
United States v. Hovsepian, 422 F.3d 883, 888 (9th Cir. 2005) (en
banc) (citing evidence of good moral character). Aside from his
false testimony at the March 2001 asylum hearing, the record is
devoid of evidence of Gonzalez’s bad moral character. This is not
to say that Gonzalez’s good character trumps the statutory
disability based on false testimony, but his character sheds light

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on whether he had an impermissible subjective intent in connection
with the false testimony.
Under the circumstances, Gonzalez’s listing of his
attorney’s address for the attorney’s convenience is more akin to
a misrepresentation to avoid embarrassment, fear, or to protect
one’s privacy than a false statement made to obtain immigration
benefits. Kungys, 485 U.S. at 782, 108 S. Ct. at 1552; cf. Medina
v. Gonzales, 404 F.3d 628, 637 (2d Cir. 2005) (petitioner’s lies
about political persecution, even though made at the direction of
her attorney, were deliberately made to enhance her chances of
obtaining immigration relief). Although the asylum application
itself sought to obtain immigration benefits, we cannot conceive
how this misrepresentation, even if deliberate, was intended to
influence the asylum officer’s decision. See, e.g., Hovsepian,
422 F.3d at 888 (omissions were honest oversights rather than
deliberate misrepresentations made with subjective intent to obtain
naturalization). Put otherwise, if Gonzalez’s immaterial misstate-
ment about his residency in California runs afoul of § 1101(f)(6),
the subjective-intent requirement explained in Kungys becomes
superfluous. The evidence “compels a contrary conclusion” to the
BIA finding that Gonzalez subjectively intended, by means of false
testimony about his address, to obtain immigration benefits.
IV. CONCLUSION

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Accordingly, we GRANT the petition for review, VACATE the
BIA’s decision and order, and REMAND to the BIA for further
proceedings consistent with this opinion.

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