Professional Documents
Culture Documents
Before
Torruella, Thompson, and Barron,
Circuit Judges.
United
Immigration
States
and
without
being
Nationality
U.S.C. 1182(a)(6)(A)(i).
Act
admitted
("INA")
or
paroled"
under
212(a)(6)(A)(i),
He is
Before the IJ, Acosta argued that he need not show that
Matter of
Emphasizing his
Acosta's Evidence
Acosta appeared twice for hearings before the IJ, in
During this
Acosta
Massachusetts.4
on
flight
from
Miami
to
Boston,
testified
that
the
flight
attendant
held
his
travel
documents on the second flight and gave these papers to his father
upon their arrival.
this testimony.
Acosta avers that he has not left the United States since
his arrival in 2001.
Following the
Government
sought
to
show
that
Acosta
was
not
witnesses,
Robert
Murray,
an
Enforcement
Officer
with
Murray's Testimony
Murray testified that he searched DHS's systems and
found no record of Acosta's original Form I-94, which "would
suggest that the document was not lawfully issued."
He explained
Form I-94 could be lost before being entered into the system.5
Reviewing Acosta's visa, Murray determined that the visa
number was valid but that it was associated with a different
individual who entered the United States in November 2001.
When
asked
were
how
Acosta's
name
and
biographical
information
transposed onto the visa, Murray reasoned that the visa may have
been "washed," a process by which biographical data is removed
from the visa and new data reprinted.
On cross-examination,
however, Murray conceded that he did not know whether a thirteento fourteen-year old individual would have been required to appear
in person to apply for a visa in 2002.
Hoover's Testimony
Hoover testified that the admission stamps on Acosta's
Form I-94 and passport were counterfeit based on an analysis of
the ink.
should flash under ultraviolet light and that the stamp on Acosta's
form had no such ultraviolet reaction. Similarly, Hoover explained
that the stamp on Acosta's passport, when viewed under ultraviolet
light, suggested that "the fluorescing feature of this stamp was
simulated by brushing or placing a substance on top of the stamp
impression to give it the appearance of fluorescing."
Hoover also attested that Acosta's visa was a genuine
visa that had been modified.
-7-
into
the
paper,
was
unaltered.
The
original
biographical
the
paper.
Accordingly,
visas
such
as
Acosta's
are
Based
8 U.S.C. 1229a(c)(2).
He
-8-
that Acosta could not have used this visa to enter the United
States
three
months
earlier,
in
August
2001.
The
IJ
also
This evidence
2002
(although
the
IJ
acknowledged
that
there
was
some
In addition, the
to
the
appealed
BIA.
the
The
IJ's
BIA
conclusion
affirmed
the
that
IJ's
he
was
decision.
noting
discretion.
that
such
determination
was
within
the
IJ's
U.S.C. 1252(b)(2).
II.
A.
Analysis
Standard of Review
"[W]e review the agency's factual findings, including
credibility
determinations,
evidence standard."
2012).
under
the
deferential
substantial
United
States
inadmissible."
without
being
admitted
or
8 U.S.C. 1182(a)(6)(A)(i).
-10-
paroled
is
Id. 1229a(c)(2)(B).
Acosta contends that the IJ erred in determining that
To be sure, "[a]n
But evidence
litany
petitioner's
story."
of
Id.
identified
This
inconsistencies
evidence
included
in
the
substantial
2002
visa
application
and
evidence
that
another
faults
the
IJ
and
BIA
for
considering
his
-12-
See
the
IJ
did
not
err
in
considering
an
otherwise
minor
is great.").
Acosta also contends that, having entered the United
States at thirteen, he cannot explain how he was admitted using
these documents and asserts that his own testimony, consistent
with his father's and uncle's accounts, should carry the day. This
court is sympathetic to Acosta's argument.
took place when Acosta was only thirteen, and his testimony, along
with that of his uncle and father, suggest that he was not
responsible for his travel documentation.
-13-
C.
As the
And while a due process violation may arise from an IJ's decision
to exclude evidence, "the trial judge must be accorded some
flexibility in his efforts to ensure that speculation and surmise
do not become proxies for probative evidence." Pulisir v. Mukasey,
524 F.3d 302, 311 (1st Cir. 2008).
Berros, 573 F.3d 55, 73 (1st Cir. 2009) ("Polygraph results are
rarely admissible at trial."); deVries v. St. Paul Fire & Marine
-14-
Ins. Co., 716 F.2d 939, 944-45 (1st Cir. 1983) (finding that the
district court did not err in granting motion to exclude evidence
regarding the refusal to take a polygraph as "polygraph evidence
has long been considered of dubious scientific value").
III.
Standing
alone,
Conclusion
Acosta's
testimony,
corroborated
by
affidavits from his father and his uncle, supports his version of
events that he was admitted to the United States in Miami in 2001.
But Acosta has failed to explain the many inconsistencies in his
travel documentation, and neither the IJ nor BIA erred in crediting
the
Government's
account.
substantial
evidence
rebutting
Acosta's
own