Guillermo OLEA-REYES, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 177 F. App'x 697

MEMORANDUM Guillermo Olea-Reyes (“Olea”) petitions for review of an order of the Board of Immigration Appeals (BIA) affirming without opinion the immigration judge’s (IJ) order of removal. The IJ found Olea inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(

I) as an intending immigrant without valid documents, and under 8 U.S.C. § 1182(a)(6)(C)(

i) for willfully misrepresenting a material fact to procure admission into the United States. The IJ also concluded that Olea was an arriving alien statutorily ineligible to apply for voluntary departure. See 8 U.S.C. § 1229c(a)(4). Olea concedes that he is removable under § 1182(a)(7)(A)(i)(I), but contends that he is not removable under § 1182(a)(6)(C)(

i) because he promptly retracted his initial claim to United States citizenship. We agree and grant the petition for review with respect to this claim. We deny the petition as to Olea’s second claim, that he is eligible to apply for voluntary departure. I. Since the parties are familiar with the facts, we do not recite them in detail. Olea, a citizen of Guatemala, was detained on November 4, 2000, at the San Ysidro port of entry as he sought to reenter the United States after a two-week trip to Mexico to visit his father.

In response to a question by the primary inspector, Olea indicated he was a United States citizen. When asked for documentation of this, Olea testified that he told the inspector he had a work permit. The primary inspector moved Olea into secondary inspection, where a work permit, a California driver’s license, and a false Mexican birth certificate were found in Olea’s pocket. The INS classified Olea as an arriving alien and concluded that he was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(

I) and (a)(6)(C)(ii). Because Olea was found to have a credible fear of being removed to Guatemala, he was paroled into the United States for the purpose of being placed in 8 U.S.C. § 1229a removal proceedings. At the removal hearing, the IJ denied Olea voluntary departure and found him to be inadmissible under both § 1182(a)(7)(A)(i)(

I) and (a)(6)(C)(i). Since the BIA summarily affirmed the IJ pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004). We review factual findings for substantial evidence, Aruta v. INS, 80 F.3d 1389, 1393 (9th Cir.1996), and questions of law de novo, Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir.2002). With respect to the immigration laws, we look to the plain meaning of the statute and give effect to that meaning where fairly possible. Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Where a statute is ambiguous, we defer to the

interpretation of the agency charged with administering the statute, as long as its

interpretation is not “clearly contrary to the plain and sensible meaning of the statute,” Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir.2003), or in conflict with this Court’s precedent, Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003). II. Regarding Olea’s first claim, we conclude that he is not removable under 8 U.S.C. § 1182(a)(6)(C)(

i) because he promptly retracted his initial claim to United States citizenship. As an initial matter, although Olea is already removable under § 1182(a)(7)(A)(i)(I), it remains relevant for this Court to address his removability under § 1182(a)(6)(C)(

i) since the latter provision can establish permanent inadmissibility to the United States. See Matter of Y-G-, 20 I. & N. Dec. 794, 797, 1994 WL 213250 (BIA 1994). Olea retains the justiciable interest on appeal of not being permanently barred from the United States, unless a waiver is obtainable. Like the immigration courts, we closely scrutinize the factual basis for the IJ’s determination that an applicant is inadmissible under § 1182(a)(6)(C)(i), “since such a finding may perpetually bar the applicant from admission.” Y-G-, 20 I. & N. Dec. at 797; see Foreign Affairs Manual (FAM), 22 C.F.R. § 40.63 n. 1.3 (the State Department’s implementing regulations for § 1182(a)(6)(C)(i)).

Section 1182(a)(6)(C)(

i) provides: “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this

chapter is inadmissible.” A willful misrepresentation is a misrepresentation that is deliberate, voluntary, and knowingly false. Forbes v. INS, 48 F.3d 439, 442 (9th Cir.1995); FAM, 22 C.F.R. § 40.63 n. 5.1. (providing that willfully means “knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise ... it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement”).

A critical factor to consider is whether the alien timely retracts his claim, which serves to excuse the misrepresentation by showing that the alien lacked the requisite intent to make a false statement. Cf. Llanos-Senarillos v. United States, 177 F.2d 164, 165 (9th Cir.1949) (“If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.”).

Accordingly, the State Department regulations provide that a “timely retraction will serve to purge a misrepresentation and remove it from further consideration as a ground for INA § 212(a)(6)(C)(

i) ineligibility.” FAM, 22 C.F.R. § 40.63 n. 4.6. In this case, it is not disputed that Olea initially claimed to be a United States citizen. Nor is it disputed that a timely retraction of this claim means that Olea cannot be found inadmissible under § 1182(a)(6)(C)(i). The central question before this Court is thus a factual one—did a retraction take place? Olea provides clear, consistent testimony that it did. Olea accurately testified that he told the primary inspector he was a United States citizen.

He explained that he responded incorrectly because he did not understand the inspector’s question, which Olea testified was asked in English. Olea also explained that he corrected his mistake when the inspector asked Olea for documentation of his claimed citizenship, by promptly disclosing that he had a work permit. Olea consistently testified that he never showed the work permit to the primary inspector because he was escorted into an office, where secondary inspectors took his documents.

Olea also accurately testified that the documents he had on him at the time included his work permit, a California driver’s license, and a false Mexican birth certificate. Olea further explained that, after seven or eight hours had passed, he provided a sworn statement formally attesting to the fact that he had initially claimed to be a United States citizen. The government sets forth no evidence to contradict Olea’s testimony.

The primary inspector’s report states that “OLEA declared him sel fas [sic] United States citizen” and “OLEA claimed that he forgot his picture identification and tried to abscond in the secondary office.” The secondary inspector’s report states that Olea “claimed birth in Chino, California,” and immigration officers conducted a “secondary officer search,” which produced Olea’s work permit and “a conterfied [sic] mexican birth certificate.” The formal report prepared by the INS states that Olea “admitted his true identity and nationality” during the secondary inspection.

These reports are all consistent with Olea’s testimony that he disclosed to the primary inspector that he had a work permit, and none of them contradicts this testimony except by their silence. In short, the record lacks any evidence to refute Olea’s clear, consistent testimony that he promptly told the primary inspector he had a work permit. Since there is no factual basis upon which to conclude that Olea failed to retract, the IJ attempts to support his decision by discrediting Olea’s testimony and by mis-eharacterizing the evidence.

The IJ misleadingly states that Olea’s testimony contradicts the sworn statement he provided at the time of his detention. In fact, Olea’s testimony and his sworn statement are fully consistent. The IJ also concludes that no retraction took place because “it was not until eight hours later that [Olea] presented the employment authorization document.” This statement is simply incorrect. Further, this statement does not even logically refute Olea’s central claim that he retracted his initial claim to citizenship by orally admitting to having a work permit.

The IJ’s opinion fails to address, and thus fails to undermine, Olea’s unambiguous testimony that he never presented his permit to the primary inspector because he was escorted into secondary inspection, but that he did tell the inspector about his work permit, which in and of itself was the retraction. Nor did the IJ ever make an adverse credibility determination regarding Olea’s testimony.

Instead of undertaking a credibility analysis, the IJ cast general aspersions on Olea’s testimony, stating that “[Olea’s] explanation that he did not know what was being asked of him must be examined in light of the fact that the respondent has been in this country for 18 years.” The implication of the IJ’s opinion is that, because Olea is “a somewhat sophisticated gentleman” who has filed income tax returns and purchased a home, he cannot have been telling the truth about misunderstanding the primary inspector’s question, and thus must have knowingly and deliberately claimed United States citizenship.

The IJ’s implied discrediting of Olea’s testimony violates the Ninth Circuit rule that implicit credibility determinations are not proper. Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000). Moreover, this Court has repeatedly held that speculative remarks cannot form the basis of an adverse credibility determination or a denial of the applicant’s claim. E.g., Bandari v. INS, 227 F.3d 1160, 1167-68 (9th Cir.2000).

The IJ speculated that Olea is “a somewhat sophisticated gentleman” who has lived in the United States for thirteen years, yet the rule in this Circuit is that an IJ may not base his opinion on “personal conjecture” as to how someone in the applicant’s situation would have conducted himself. See Karouni v. Gonzales, 399 F.3d 1163, 1176 (9th Cir.2005). Additionally, any reasons for doubting an applicant’s credibility must be specific and cogent—generalized observations that fail to specify how the applicant was evasive or contradicted himself are insufficient. Garrovillas v.

INS, 156 F.3d 1010, 1013 (9th Cir.1998). The IJ’s speculations are also thoroughly contradicted by the record, which reflects that Olea understood little English. For example, Olea’s tax forms were submitted by a professional preparer, not by Olea; the language spoken in Olea’s household is Spanish; Olea’s sworn statement at San Ysidro was prepared in Spanish; the government provided Olea with the Spanish version of the M-444 form on credible fear interviews; Olea’s credible fear interview was conducted entirely in Spanish; and Olea utilized a Spanish interpreter throughout the removal proceedings.

Olea has provided clear, consistent testimony that he claimed United States citizenship only because he misunderstood the primary inspector’s question, and that he promptly corrected his mistake by advising the inspector that he had a work permit. The government has not presented any evidence to refute Olea’s testimony. And the IJ relied on impermissible and unfounded conjecture in attempting to discredit this testimony. Under these facts, we conclude the record lacks substantial evidence to support the IJ’s determination that Olea failed to retract his initial claim to United States citizenship.

We therefore grant Olea’s petition with respect to his claim that he is not removable under § 1182(a)(6)(C)(i). III. Olea’s second claim, that the IJ erroneously classified him as an arriving alien, is without merit. Title 8 U.S.C. § 1229c(a)(4) denies voluntary departure to “an alien who is arriving in the United States” and who is placed in removal proceedings. The statute does not define what it means to be “an alien who is arriving in the United States,” so we defer to the administrative agency’s

interpretation of this term, as long as the

interpretation is not “clearly contrary to the plain and sensible meaning of the statute.” Kankamalage, 335 F.3d at 862. The Department of Justice (DOJ) regulation provides in relevant part: The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to

section 212(d)(5) of the Act. 8 C.F.R. § 1001.1(q). We accord deference to the preceding definition, as it is not clearly contrary to the plain and sensible meaning of 8 U.S.C. § 1229c(a)(4). Where a possible ambiguity exists in an administrative regulation, we accord “controlling weight to an agency’s

interpretation of its own regulations,” unless the

interpretation “is plainly erroneous or inconsistent with the regulation.” Ruangswang v. INS, 591 F.2d 39, 43 (9th Cir.1978) (internal quotation marks and citations omitted). Here, the IJ’s

interpretation of the regulation defining “arriving alien” was neither plainly erroneous nor inconsistent with the regulatory text. The relevant

section of the text provides that an arriving alien is “an applicant for admission coming or attempting to come into the United States at a port-of-entry.” 8 C.F.R. § 1001.1(q). Olea’s arrival at San Ysidro falls under the plain terms of the regulation—Olea was an alien who was both attempting to enter the United States at a port of entry and applying for admission.

The second requirement is critical—the DOJ clearly did not intend for every alien presenting himself at a port of entry to be classified as an “arriving alien.” Those aliens who are seeking to enter the United States, but who are not at the same time seeking “admission”—a legal status not synonymous with “entry”—are not to be considered “arriving.” What distinguishes such aliens from Olea is the fact that the former possess on their record a valid “admission” to the United States—they have legal status in the country.

Olea, by contrast, though residing illegally in the United States for many years, never gained legal “admission.” Therefore, when he presented himself at San Ysidro on November 4, 2000, he continued to be an “applicant for admission” to the United States, and thus an arriving alien. We therefore uphold the IJ’s determination that Olea is an arriving alien statutorily ineligible to apply for voluntary departure. For the foregoing reasons, the petition for review is GRANTED in part and DENIED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3. . Section. 1182(a)(6)(C)(ii) provides for inadmissibility on the basis of falsely claiming United States citizenship. In his Notice to Appear, Olea was charged under § 1182(a)(6)(C)(i), which provides for inadmissibility on the basis of willfully misrepresenting a material fact. . Title 8 U.S.C. § 1182(i)(1) provides relief to certain aliens from the permanent operation of § 1182(a)(6)(C)(i).

Essentially, an alien who can show "extreme hardship” to a U.S. citizen family member may be granted a waiver of inadmissibility at the discretion of the Attorney General. . There is no evidence that eight hours elapsed before Olea presented his work permit to the immigration officers. Rather, what occurred "eight hours later” was that Olea signed a formal, written statement acknowledging his initial false claim. . Title 8 U.S.C. § 1101(a)(13)(

A) provides: admission is "lawful entry ... into the United States after inspection and authorization by an immigration officer.”