                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 08 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOSE FRANCISCO BALLESTEROS                       No. 10-73120
RODRIGUEZ,
                                                 Agency No. A088-223-976
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                            Submitted February 15, 2013 **
                              San Francisco, California

Before: SCHROEDER and MURGUIA, Circuit Judges, and MCNAMEE, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Stephen M. McNamee, Senior District Judge for the
U.S. District Court for the District of Arizona, sitting by designation.
      Petitioner Jose Francisco Ballesteros Rodriguez, a native and citizen of

Mexico, petitions for review of the dismissal of his appeal by the Board of

Immigration Appeals (“BIA”). The Immigration Judge (“IJ”) denied his

application for cancellation of removal, finding that Ballesteros Rodriguez

furnished false testimony in order to obtain a benefit under the Immigration and

Nationality Act (“INA”) and, pursuant to 8 U.S.C. § 1101(f)(6), lacked good moral

character. The BIA similarly concluded that Ballesteros Rodriguez failed to

demonstrate good moral character and rejected his contention that he timely and

voluntarily recanted his false testimony. We have jurisdiction pursuant to 8 U.S.C.

§ 1252 to review nondiscretionary determinations of statutory ineligibility, Gomez-

Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir. 2005), and review for substantial

evidence the agency’s factual findings regarding whether an applicant falls into

one of the per se categories set forth in 8 U.S.C. § 1101(f), Urzua Covarrubias v.

Gonzales, 487 F.3d 742, 747 (9th Cir. 2007). We deny the petition for review.

      Substantial evidence supports the agency’s determination that Ballesteros

Rodriguez furnished false testimony under oath in order to obtain a benefit under

the INA and, in accordance with 8 U.S.C. § 1101(f)(6), is ineligible for

cancellation of removal because he lacks good moral character. Ballesteros

Rodriguez testified at his August 2009 removal hearing that, due to an injury, he


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was unemployed for a two-year period during which he received disability

compensation. When his hearing resumed in December 2009, Ballesteros

Rodriguez produced employment records demonstrating that he was employed

under an alias during the two-year period in question. When questioned by the IJ

about the inconsistencies between his August 2009 testimony and employment

records, Ballesteros Rodriguez acknowledged that he testified untruthfully,

explaining that he “did not want to report that [he] had worked during those years

because [he] thought it was going to affect [him].” Ballesteros Rodriguez then lied

about the year he suffered his injury, fearing the IJ’s discovery that he worked

while collecting disability benefits would adversely affect his cancellation of

removal application.

      Ballesteros Rodriguez contends that 8 U.S.C. § 1101(f)(6) does not render

him ineligible for cancellation of removal because he timely and voluntarily

recanted his false testimony. As we explained in Valadez-Munos v. Holder, “when

a person supposedly recants only when confronted with evidence of his

prevarication, the amelioration is not available.” 623 F.3d 1304, 1310 (9th Cir.

2010). Such is the case here: Ballesteros Rodriguez made no voluntary effort to

recant his false testimony and was forthcoming about his deception only after the

IJ confronted him. Accordingly, substantial evidence supports the agency’s


                                          3
determination that Ballesteros Rodriguez neither timely nor voluntarily recanted

his false testimony.

      PETITION FOR REVIEW DENIED.




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