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Diaz-Perez v. Holder

United States Court of Appeals, Eighth Circuit

May 2, 2014

Leoncio Diaz-Perez, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted December 19, 2013

For Leoncio Diaz-Perez, Petitioner: Herbert Igbanugo, Igbanugo Partners, Minneapolis, MN.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN; Sharon Michele Clay, Karen Yolanda Drummond, Carl H. McIntyre, Blair O'Connor, Rosanne Perry, U.S. Department of Justice, Washington, DC.

Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

OPINION

Petition for Review of an Order of the Board of Immigration Appeals

Page 962

RILEY, Chief Judge.

Leoncio Diaz-Perez petitions for review of a final order of removal entered by the Board of Immigration Appeals (BIA). Having appellate jurisdiction under 8 U.S.C. § 1252, we deny the petition.

I. BACKGROUND

Diaz-Perez, a native and citizen of Mexico, last entered the United States at or near Brownsville, Texas, on May 1, 2004. On December 28, 2008, according to Border Patrol Agent Benjamin C. Lotvedt, Diaz-Perez was involved in a car accident west of Mandan, North Dakota. Agent Lotvedt reported that when Diaz-Perez could only produce a Mexican identification card, the responding officer contacted the U.S. Department of Homeland Security (DHS) to assist in identifying Diaz-Perez. Diaz-Perez admitted he entered the U.S. illegally, and DHS took him into custody for processing. On December 29, 2008, Agent Lotvedt interviewed Diaz-Perez about his entry into the U.S., documenting the interview on a Record of Deportable/Inadmissible Alien (I-213). Agent Lotvedt recorded that Diaz-Perez reported he " entered afoot near Brownsville, Texas," before traveling successively to Alabama, Nebraska, and North Dakota to work construction.

DHS initiated removal proceedings, charging Diaz-Perez was removable for being (1) " an alien present in the United States without being admitted or paroled," 8 U.S.C. § 1182(a)(6)(A)(i), and (2) an immigrant " not in possession of a valid, unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document," id. § 1182(a)(7)(A)(i). Diaz-Perez contested the first charge, arguing he was inspected and admitted to the U.S. and thus eligible for adjustment of status based on his marriage to a U.S. citizen.

In proceedings before an immigration judge (IJ), Diaz-Perez admitted all of the facts recorded in the I-213 save one--Diaz-Perez denied telling Agent Lotvedt that he entered at Brownsville afoot. Contradicting the I-213 narrative, Diaz-Perez testified he told Agent Lotvedt that he entered the U.S. by car. Diaz-Perez maintained he had presented himself for inspection and admission when he entered the U.S. in 2004 as a passenger in the back seat of a red Ford Mustang driven by his mother-inlaw, Virginia Williams, and with family friend Alicia West riding as a passenger in the front seat. Diaz-Perez testified an immigration officer at the border checkpoint asked only Williams if she was a U.S. citizen, which she confirmed. By Diaz-Perez's account, the agent did not ask Diaz-Perez or West any questions and did not ask for any documentation before waving the trio through. Admitting he did not have a visa or border-crossing card when he entered the U.S., Diaz-Perez testified Williams and West were aware he was entering the U.S. illegally before they crossed the border, but wanted Diaz-Perez to be with his children.

Williams testified for Diaz-Perez, but recalled some of the key details of the alleged border crossing differently. ...


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