    15-1600
    Cohen v. Lynch
                                                                                 BIA
                                                                          Montante, IJ
                                                                         A072 584 817
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.     WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 20th
    day of May,two thousand sixteen.

    PRESENT:
              JOHN M. WALKER, JR.,
              GUIDO CALABRESI,
              PETER W. HALL,
                   Circuit Judges.
    _____________________________________

    ROGER COHEN,
                           Petitioner,

                     v.                                        15-1600


    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
                   Respondent.
    _____________________________________

    FOR PETITIONER:                      Jeffrey A. Devore, Devore Law Group,
                                         P.A., Palm Beach Gardens, Florida.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Blair T.
                                         O’Connor, Assistant Director; Juria
                                         L. Jones, Trial Attorney, Office of
                                         Immigration Litigation, Civil
                                         Division, United States Department
                                         of Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

     Petitioner Roger Cohen, a native of Egypt and citizen of

Canada, seeks review of an April 14, 2015, decision of the BIA

affirming a June 28, 2013, decision of an Immigration Judge

(“IJ”) ordering Cohen removed to Canada.   In re Roger Cohen, No.

A072 584 817 (B.I.A. Apr. 14, 2015), aff’g No. A072 584 817

(Immig. Ct. Buffalo June 28, 2013).   We assume the parties’

familiarity with the underlying facts and procedural history in

this case, which we reiterate only as necessary to explain our

views of this case.

     We review the IJ’s opinion as supplemented by the BIA.      See

Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We

review the IJ’s factual findings under the substantial evidence

standard, upholding those findings “unless any reasonable

adjudicator would be compelled to conclude to the contrary.”     8

U.S.C. § 1252(b)(4)(B).   We review de novo questions of law and

the agency’s application of law to undisputed fact.   Yanqin Weng

v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

     An alien in removal proceedings who seeks admission bears

the burden of establishing that he “is clearly and beyond doubt

entitled to be admitted and is not inadmissible under” 8 U.S.C.

                                2
§ 1182.   8 U.S.C. § 1229a(c)(2)(A).   An “alien seeking admission

at a . . . port of entry must present whatever documents are

required and must establish to the satisfaction of the

inspecting officer, that [the alien] is . . . entitled . . . to

enter the United States.”   8 C.F.R. § 235.1(f)(1).   “Any alien

who, by fraud or willfully misrepresenting a material fact,

seeks to procure . . . a visa, other documentation, or admission

into the United States or other benefit provided [by the INA] is

inadmissible.”   8 U.S.C. § 1182(a)(6)(c)(i).

     It is abundantly clear that this case stems from an

unfortunate incident prompted by Mr. Cohen’s attempted use of a

copy, rather than the original, of Form I-185, a Non-Resident

Alien Canadian Border Crossing Card.   This attempted use may

seem a trivial matter to the untutored eye.     In the immigration

context, however, seemingly trivial missteps can have serious

consequences which may well be beyond the alien’s contemplation

and which may seem disproportionate to the offense.

     There is no question, based on the record in this case,

that the form at issue here, whether it was an original or a

copy of the original, accurately reflected information that was

also contained in the files of the Department of Homeland

Security, to wit: that Mr. Cohen had permission to enter the




                                3
United States notwithstanding a prior conviction.1

              Mr. Cohen approached the Lewiston Bridge Port of Entry and

presented the copy of Form I-185.                                            At that point, he claimed he

was presenting the original I-185.                                           As a result, he was placed

in removal proceedings for making a willful misrepresentation to

procure admission.

              Petitioner’s first argument is that he was not seeking “to

procure . . . a visa, other documentation, or admission into the

United States or other benefit provided [by the INA].”                                           8 U.S.C.

§ 1182(a)(6)(C)(i).                                            Instead, he was merely seeking information

as to how to replace his stolen I-185.                                           Mr. Cohen, however,

presented no evidence, other than his own testimony, to show

that he was not seeking admission.                                           Moreover, the IJ found his

testimony not to be credible and instead credited the testimony

of Border Patrol Officer Matthew Sundlov that Mr. Cohen had

sought admission to the United States using a copy of a Form I-

185.             There is no evidence in the record that compels the

conclusion that the IJ’s credibility finding was erroneous.                                            See

8 U.S.C. § 1252(b)(4)(B); Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 333-34 (2d Cir. 2006).                                           Officer Sundlov testified

                                                            
1
   It is not clear from the record why Mr. Cohen no longer had
the original Form I-185 that had been issued to him, but it
appears he had either lost it or it was stolen from his boat.
There is no indication in the record of these proceedings,
however, that the copy was anything other than a duplicate of
his original Form I-185, which, if presented by Mr. Cohen,
entitled him to entry into the United States.
                                                                         4
in accord with the Record of Deportable/Inadmissible Alien, the

I-213, that Mr. Cohen admitted he would have continued using the

copy of the I-185 if he had successfully gained admission.

“Form I-213 [is a record] made by public officials in the

ordinary course of their duties, and accordingly evidence[s]

strong indicia of reliability.”     Felzcerek v. INS, 75 F.3d 112,

116 (2d Cir. 1996).

     Moreover, an IJ is not required to credit an alien’s

explanations for inconsistencies unless a reasonable fact finder

would be compelled to credit the explanation.     Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).     Here, Mr. Cohen’s

explanation that he was merely seeking information is belied by

the I-213, Sundlov’s testimony, and an internal Border Patrol

memorandum stating that Mr. Cohen tried to pass off the copy as

an original until confronted with evidence that Border Patrol

agents knew the I-185 was a copy.     The IJ’s conclusion is

further supported by evidence that Mr. Cohen had previously

sought information on how to replace his I-185 in 2010, and that

he had previously been provided a form and instructions on how

to obtain a replacement.   Given these facts, the IJ reasonably

concluded that it was implausible that Mr. Cohen would travel to

the border to seek the same information again.

     Mr. Cohen’s second argument is that, assuming arguendo he

misrepresented that the I-185 was an original, his

                                  5
misrepresentation is immaterial for two reasons.   First, he had

a valid waiver of inadmissibility; any misrepresentation,

therefore, had no effect on his admissibility.   Second, Border

Patrol was not deceived by the copy; the misrepresentation thus

did not materially affect a decision as to his admissibility.       A

“misrepresentation is material if it ‘has a natural tendency to

influence or was capable of influencing, the decision of the

decisionmaking body to which it was addressed.’”     Monter v.

Gonzales, 430 F.3d 546, 553 (2d Cir. 2005) (quoting Kungys v.

United States, 485 U.S. 759, 770 (1988)).   Although it is true

that Mr. Cohen had a valid waiver of inadmissibility, an alien

seeking admission must still possess a valid entry document. 8

U.S.C. § 1182(a)(7)(B)(i)(II).   Here, he presented a copy of

Form I-185 but claimed that it was the original.   We have never

held that a misrepresentation can be immaterial because it did

not, in fact, deceive the relevant decision maker.     We decline

to do so now.   Moreover, submission of a misleading entry

document certainly had a “natural tendency to influence” Border

Patrol agents in their determination as to whether Mr. Cohen was

in possession of a valid entry document, as required for

admission.   Monter, 430 F.3d at 553.

     Ultimately, Mr. Cohen bore the burden of establishing that

he was admissible to the United States.   8 U.S.C. §

1229a(c)(2)(A).   Considering his acknowledgement that he used a

                                 6
copy of the I-185 and the evidence in the record from multiple

sources showing that he tried to pass off the I-185 as genuine,

we cannot find error in the IJ’s conclusion that Mr. Cohen

failed to meet his burden of showing admissibility.        See Crocock

v. Holder, 670 F.3d 400, 403 (2d Cir. 2012) (holding that, where

alien presents no evidence other than his own testimony

disputing claim that he did not intend to deceive immigration

authorities, there is no error in concluding alien failed to

meet burden of showing admissibility).

     For   the   foregoing   reasons,   the   petition   for   review   is

DENIED.



                                 FOR THE COURT:

                                 Catherine O=Hagan Wolfe, Clerk




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