IMG-154                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 09-3003
                                       ___________

                          GERONIMO EQUIHUA MORALES,
                                                 Petitioner
                                      v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                         Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A079-138-475)
                  Immigration Judge: Honorable Roxanne Hladylowycz
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 7, 2010

               Before: RENDELL, FISHER and GARTH, Circuit Judges.

                                   (Filed: April 8, 2010)
                                       ___________

                                        OPINION
                                       ___________

PER CURIAM

       Geronimo Equihua Morales is a native and citizen of Mexico. On November 16,

2002, he came to the attention of the immigration authorities when police pulled over a

van that ran a red light. R. 312. Police detained him in the county jail, and during the
interview with an immigration agent that followed, Morales1 stated that he had entered

the United States initially on an H2-B Visa on December 8, 1999, through Laredo, Texas.

R. 313. According to the immigration officer’s record of the interview, Morales also

stated that he remained in the United States for approximately two weeks after his initial

entry, returned to Mexico because of “familial troubles,” and reentered the United States

illegally on January 15, 2000, at an unknown place near Laredo, Texas. R. 312-13.

       The Government charged Morales with removability for being present in the

United States without having been admitted or paroled. R. 316. Within the allegations,

the Government claimed that Morales “arrived in the United States at or near Laredo,

Texas, on or about January 15, 2000 . . . [and was] not then admitted or paroled after

inspection by an Immigration Officer.” Id. Morales denied these allegations and the

charge of removability. He sought an adjustment of status based on his marriage to a

United States citizen.

       The issue at the hearing before the Immigration Judge (“IJ”) was whether Morales

last entered in December 1999 with a visa (making him eligible for adjustment of status)

or if he had left and returned without inspection in January 2000 (rendering him ineligible

for adjustment of status). Morales argued that he lied to the immigration officer who

interviewed him in jail. Specifically, he stated that a friend advised him to say that he had




       1
        We note that the petitioner’s name is Equihua Morales and that the Government
calls him Equihua, but we will use the name that the petitioner himself uses in his brief.

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left the country because he could avoid remaining in jail for a long time if he did so. R.

116. He testified that he gave his statement and signed it because he wanted to leave jail

and see his girlfriend (who is now his wife). R. 119, 121, 123-24. Morales presented

evidence that he was admitted and inspected on December 8, 1999. R. 177, 239. He

maintained that he did not leave the country at all, and in support of his contention, he

submitted an affidavit from his friend who came to the United States to work at the same

time, R. 231, pay stubs from December 1999, R. 222-24, and a money order receipt from

January 2000, R. 226. During the hearing, however, his attorney admitted that there was

no “primary evidence” (among the documentary evidence) that he was in the country

during the time period in question. R. 133. Morales also argued that he was without a

lawyer when his statement was taken and that he did not speak English well at the time.

       The IJ held that Morales did not establish eligibility for adjustment of status. She

held that the documentary evidence that he submitted was not sufficient to establish that

he never left the country. Furthermore, she disbelieved Morales’s testimony that he never

left the United States. She concluded that his credibility was undermined by his

admission that he lied under oath to an immigration officer. The IJ also noted that

Morales had a motive to lie at the hearing (in order to remain in the United States) while

the immigration officer who took his earlier statement had no motive to misreport what

Morales said. She concluded that Morales’s previous inconsistent statement was reliable

and completely undermined Morales’s testimony.



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       Morales appealed to the Board of Immigration Appeals (“BIA”). The BIA held

that the IJ’s adverse credibility determination was not clearly erroneous, agreed that

Morales was removable as charged and ineligible for an adjustment of status for being in

the United States without having been admitted or paroled after inspection. Morales,

through counsel, presents a petition for review.

       We have jurisdiction over Morales’s petition under 8 U.S.C. § 1252. We consider

questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 & n.2 (3d Cir.

2002). We review factual findings, like an adverse credibility determination, for

substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). An

adverse credibility finding must be afforded substantial deference, so long as the finding

is supported by sufficient, cogent reasons. See id. at 434.

       The adverse credibility finding in this case is supported by substantial evidence.

As the IJ noted, Morales had a motive to lie at the hearing (in order to remain in the

United States) while the immigration officer who took his earlier statement had no motive

to misreport it. In his earlier statement, Morales admitted that he had left the United

States for a brief period and returned illegally. Although Morales has argued that he did

not speak English well at the time that he gave his prior statement, he admitted that an

immigration officer spoke to him at the time in Spanish (although the officer did not

speak Spanish well). R. 113.




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        Other evidence in the record does not compel a contrary conclusion or establish

that Morales is eligible for adjustment of status. That is, although there is evidence in the

record that he was initially inspected and admitted as a visitor in 1999, R. 177, 235, 238-

39, the documentary evidence is not sufficient to establish that he never left the country.

Although Morales argues to the contrary, the pay stubs he presented do not show that he

was in the United States in the time in question. Although his pay checks were issued in

January 2000, they were for work that he completed in December. R. 222-24. Also, the

money order receipt in the record gives two conflicting dates and cannot serve as

conclusive evidence of Morales’s presence in the country. Specifically, the money order

gives the “date of delivery” as January 7, 2000, but it also gives the “date in U.S.A.” as

January 31, 2000. R. 227. (Morales also suggested at his hearing that his boss was the

person actually sending Morales’s money to Mexico. R. 120.) Also, the affidavit of a

friend who noted that he and Morales changed jobs after being in the United States for a

month and made the present tense statement “we are here working without going to

Mexico,” R. 231, does not prove that Morales did not leave the United States in January

2000.

        For these reasons, we cannot conclude that the BIA erred. Accordingly, we will

deny Morales’s petition for review.




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