                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 16a0170p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


 GOVINDBHAI KANTILAL PATEL; VIDHYABEN PATEL; ┐
 RINABEN PATEL; NITINKUMAR GOVINDBHAI PATEL, │
                                     Petitioners, │
                                                  │
                                                  │
       v.                                         >                      No. 15-3812
                                                  │
                                                  │
 LORETTA E. LYNCH, Attorney General,              │
                                     Respondent. │
                                                  ┘
                                 On Petition for Review of a Decision
                                 of the Board of Immigration Appeals.
                                  Nos. A072 169 666; A073 039 255;
                                     A098 516 094; A098 516 095

                                   Decided and Filed: June 30, 2016*

                    Before: CLAY, ROGERS, and McKEAGUE, Circuit Judges.

                                          _________________

                                                COUNSEL

ON BRIEF: Michael E. Piston, Michele R. Redburn, PISTON & CARPENTER PC, Troy,
Michigan, for Petitioners. Julia J. Tyler, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
                                          _________________

                                                OPINION
                                          _________________

        PER CURIAM. Govindbhai Kantilal Patel, his wife Vidhyaben Patel, and their children
Rinaben Patel and Nitinkumar Govindbhai Patel petition this court for review of an order of the

        *
         This decision was originally issued as an “unpublished” opinion filed on June 30, 2016. The court has
now designated the opinion as one recommended for full-text publication.




                                                      1
No. 15-3812                             Patel, et al. v. Lynch                       Page 2


Board of Immigration Appeals (BIA) dismissing their appeal from the denial of their
applications for adjustment of status and denying Rinaben Patel’s motion to sever and remand
her removal proceedings.

        Petitioner Govindbhai Patel has told the government two stories of how he came to this
country: one, which he maintains here, is that he was smuggled across the border without being
inspected, and the other, which he told the government in earlier immigration proceedings, is that
he entered the United States with a fraudulent visa. After the Department of Homeland Security
charged him with multiple grounds of removability, Govindbhai Patel conceded one of those
grounds—that he was removable as an alien present without being admitted or paroled—and
then applied to adjust status under INA § 245(i), a form of relief from removability available to
him only if he entered without inspection. When the BIA denied his application and his family
members’ derivative applications for § 245(i) relief because he did not prove that he had, in fact,
entered without inspection (as opposed to having entered via a fraudulent visa), he cried foul—
how could the BIA simultaneously hold that he is removable because he entered without
inspection and that he is ineligible to adjust status under § 245(i) because he did not enter
without inspection? The answer lies in the applicable burdens of proof: Govindbhai Patel bears
the burden to prove that he satisfies all the requirements for adjustment of status, and his
decision to concede a charge of removability is not sufficient to meet his burden to affirmatively
prove that he satisfies § 245(i)’s requirement of having entered the country without inspection.
The BIA’s denial of his and his family members’ applications to adjust status—with the
exception of his daughter’s application, which the government agrees must be remanded—was
therefore not in error.

        The Patels are natives and citizens of India. In 1994, Govindbhai Patel submitted an
application for asylum and an application for employment authorization, both of which stated
that he arrived in the United States at John F. Kennedy International Airport as a visitor on
December 25, 1993. Vidhyaben Patel also submitted an asylum application, asserting that she
arrived in New York as a visitor in February 1994 and that her husband had been in the United
States for two years. In their asylum applications, Govindbhai Patel and Vidhyaben Patel both
denied traveling through any other country before entering the United States.
No. 15-3812                             Patel, et al. v. Lynch                      Page 3


       In 1999, Jogmaya Corporation obtained an alien employment certification from the
Department of Labor for a bookkeeper position. Jogmaya Corporation subsequently filed an
immigrant petition for alien worker on behalf of Govindbhai Patel, which was approved in 2004.
Govindbhai Patel then submitted an application for adjustment of status, in which he stated that
he arrived in the United States in New York as a B-2 visitor for pleasure on November 25, 1993,
and that he was inspected by an immigration officer. Counsel’s cover letter reiterated that
Govindbhai Patel “entered the US on November 25, 1993 as a B-2 visitor.”               (AR 735).
Vidhyaben Patel, Rinaben Patel, and Nitinkumar Patel filed derivative adjustment applications.
All four Patels filed supplements to their applications seeking adjustment of status under Section
245(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i), in which they indicated
that they entered the United States without inspection.

       In an interview with an immigration officer in 2005, Govindbhai Patel stated under oath
that he entered the United States in New York with a visa on November 23, 1993. In subsequent
interviews, however, Govindbhai Patel stated under oath that he entered the United States on
November 25, 1993, by crossing the border from Mexico to California in a truck with a smuggler
and that his family members also used smugglers to enter the United States.

       In 2008, the United States Citizenship and Immigration Services (USCIS) denied
Govindbhai Patel’s application for adjustment of status, as well as his family members’
derivative applications. Govindbhai Patel’s “continued conflicting responses” left the USCIS
“trying to determine when or if [he] might be telling the truth ever.” (AR 817).

       In 2009, the Department of Homeland Security (DHS) initiated removal proceedings
against the Patels by filing notices to appear, charging them with removability as aliens present
in the United States without being admitted or paroled in violation of INA § 212(a)(6)(A)(i),
8 U.S.C. § 1182(a)(6)(A)(i). Appearing before an immigration judge (IJ), the Patels conceded
removability as charged and sought relief in the form of adjustment of status pursuant to INA
§ 245(i). The DHS subsequently filed additional charges against Govindbhai Patel, asserting that
he sought to procure an immigration benefit by fraud or by willfully misrepresenting a material
fact in violation of INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and that he was not in
possession of a valid travel document at the time of application for admission in violation of INA
No. 15-3812                             Patel, et al. v. Lynch                       Page 4


§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Govindbhai Patel denied the new charges.
At a hearing before the IJ, all four Patels testified that they were smuggled into the United
States—Govindbhai Patel and Vidhyaben Patel from Mexico to California and Rinaben Patel and
Nitinkumar Patel from Canada to Michigan.

       After considering the testimony of the witnesses and the documents in the record, the IJ
denied the Patels’ applications for adjustment of status and ordered their removal to India. The
IJ found that Govindbhai Patel was not a credible witness based on the inconsistencies in his
testimony and the documents, including his inconsistent representations about his manner and
date of entry into the United States, and on his demeanor during his testimony, frequently failing
to answer questions or delaying his responses. The IJ determined that “the evidence in total
demonstrates that [Govindbhai Patel] came to the United States with a fraudulent visa” and that
“he then changed his theory that he came to the United States without inspection so that he could
qualify for an adjustment under” INA § 245(i). (AR 223). The IJ found that Govindbhai Patel
failed to satisfy his burden of establishing eligibility for adjustment of status, that the DHS had
proved removability under INA § 212(a)(6)(A)(i) based on Govindbhai Patel’s concession to
entering without inspection and under INA § 212(a)(7)(A)(i)(I) based on Govindbhai Patel’s
entry with a fraudulent visa, and that the DHS had proved the factual allegation that Govindbhai
Patel willfully misrepresented his manner of entry to the immigration officers who interviewed
him.

       The Patels appealed the IJ’s decision to the BIA. While the appeal was pending, Rinaben
Patel filed a motion to sever and remand her case, asserting that she had married a lawful
permanent resident who had filed a petition for alien relative on her behalf. The BIA dismissed
the appeal and denied Rinaben Patel’s motion.         The BIA concluded that the IJ’s adverse
credibility determination was not clearly erroneous and that, given that determination,
Govindbhai Patel had failed to meet his burden of demonstrating entry without inspection to be
eligible for adjustment of status pursuant to INA § 245(i).

       The Patels petitioned this court for review of the BIA’s order. The government filed an
unopposed motion to the BIA for clarification of its decision, which we granted. On remand, the
BIA again dismissed the appeal and denied Rinaben Patel’s motion. The BIA determined that it
No. 15-3812                            Patel, et al. v. Lynch                       Page 5


was unnecessary to address whether Govindbhai Patel was removable under INA
§ 212(a)(7)(A)(i)(I) because he was removable under INA § 212(a)(6)(A)(i) based on his
concession to entering without inspection. The BIA reiterated that the IJ’s adverse credibility
determination was not clearly erroneous and concluded that Govindbhai Patel had failed to carry
his burden to show his manner of entry into the United States and demonstrate his eligibility for
adjustment of status pursuant to INA § 245(i).

       This timely petition for review followed. “Where the BIA reviews the immigration
judge’s decision and issues a separate opinion, rather than summarily affirming the immigration
judge’s decision, we review the BIA’s decision as the final agency determination.” Khalili v.
Holder, 557 F.3d 429, 435 (6th Cir. 2009). We review questions of law de novo but give
substantial deference to the BIA’s interpretation of the INA and accompanying regulations,
upholding that interpretation unless it is “arbitrary, capricious, or manifestly contrary to the
statute.” Id. at 435 (quoting Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)). Factual
findings are reviewed for substantial evidence and “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Khozhaynova v. Holder, 641 F.3d
187, 191 (6th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)).

       Govindbhai Patel applied for adjustment of status pursuant to INA § 245(i), which allows
“an alien physically present in the United States” who “entered the United States without
inspection” and who is the beneficiary of an application for a labor certification to apply for
adjustment of status. 8 U.S.C. § 1255(i)(1); see Cika v. Holder, 344 F. App’x 208, 216 (6th Cir.
2009). The application for a labor certification must have been filed on or before April 30, 2001,
and the alien must have been physically present in the United States on December 21, 2000.
8 U.S.C. § 1255(i)(1). The alien bears the burden of proving statutory eligibility for adjustment
of status. 8 U.S.C. § 1229a(c)(4)(A)(i); Lockhart v. Napolitano, 573 F.3d 251, 254 (6th Cir.
2009). The BIA concluded that Govindbhai Patel had failed to satisfy his burden of proving his
manner of entry into the United States. Given Govindbhai Patel’s inconsistent representations
about his manner of entry—initially claiming that he entered with a visitor visa and later
claiming that he entered without inspection—the record does not compel a contrary conclusion.
No. 15-3812                            Patel, et al. v. Lynch                       Page 6


       Govindbhai Patel contends that the BIA’s finding by clear and convincing evidence that
he is removable under INA § 212(a)(6)(A)(i) establishes by a preponderance of the evidence that
he entered without inspection to establish his eligibility for adjustment of status under INA
§ 245(i). The BIA stated that this result may appear “somewhat incongruous” but involved a
proper application of the burdens of proof set forth in the INA and accompanying regulations.

       In a removal case where an alien has been charged as being in the United States without
being admitted or paroled, as in this case, the DHS must first establish alienage. 8 C.F.R.
§ 1240.8(c). The DHS satisfied this burden when Govindbhai Patel conceded that he was not a
citizen or national of the United States and that he was a native and citizen of India. “Once
alienage has been established, unless the respondent demonstrates by clear and convincing
evidence that he or she is lawfully in the United States pursuant to a prior admission, the
respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the
United States and is not inadmissible as charged.” Id.; see 8 U.S.C. § 1229a(c)(2). Here,
Govindbhai Patel did not attempt to satisfy this evidentiary burden and instead conceded the
charge of removability.

       With removability established, Govindbhai Patel then requested relief from removal in
the form of adjustment of status pursuant to INA § 245(i). An applicant for relief from removal
“has the burden of proof to establish that [the applicant] satisfies the applicable eligibility
requirements . . . and merits a favorable exercise of discretion.” 8 U.S.C. § 1229a(c)(4)(i); see
8 C.F.R. §§ 1240.8(d), 1240.11(e). Govindbhai Patel asserted that he was eligible for adjustment
of status under INA § 245(i) as an alien who “entered the United States without inspection” and
was the beneficiary of an application for a labor certification. Therefore, Govindbhai Patel had
the burden of proof to establish that he entered the United States without inspection. The BIA
determined that Govindbhai Patel’s testimony, which lacked credibility, and the lack of other
evidence failed to meet this burden. Giving deference to the BIA’s interpretation of the INA and
No. 15-3812                                      Patel, et al. v. Lynch                                 Page 7


accompanying regulations, we conclude that the BIA’s decision involved a proper application of
the different burdens of proof.1

         The government agrees that remand is necessary with respect to Rinaben Patel’s motion
to sever and remand in light of the fact that the record shows that Govindbhai Patel’s labor
certification was filed before April 30, 2001, and was approved. (A.R. 739).

         For the foregoing reasons, we DENY the petition for review in part and REMAND for
further consideration of Rinaben Patel’s motion to sever and remand.




         1
           Govindbhai Patel also argues for the first time in his reply brief that he is qualified to adjust status under
INA § 245(i) as an applicant “who seeks adjustment of status to that of an immigrant under section 1153(b) and is
not in a lawful nonimmigrant status.” See 8 U.S.C. § 1255(i)(1)(A)(ii); see also 8 U.S.C. § 1255(c). Beyond the
fact that arguments presented for the first time in a reply brief are waived, see, e.g., Sanborn v. Parker, 629 F.3d
554, 579 (6th Cir. 2010), this argument is unavailing. While it is true that an applicant “who seeks adjustment of
status to that of an immigrant under section 1153(b) and is not in a lawful nonimmigrant status” may adjust status
under INA § 245(i), see § 1255(i)(1)(A)(ii) and § 1255(c), such an alien must also be admissible in order to adjust
status, see § 1255(i)(2)(A). However, if Govindbhai Patel entered with a fraudulent visa, then the fraud would
render him inadmissible, see 8 U.S.C. § 1182(a)(6)(C)(i). Thus, in order to adjust status under INA § 245(i), he
needed to prove that he entered without inspection and that he did not enter with a fraudulent visa.
