     Case: 13-60680       Document: 00512824965         Page: 1     Date Filed: 11/04/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                       No. 13-60680                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
GHANSHYAMBBHAI PATEL,                                                     November 4, 2014
                                                                            Lyle W. Cayce
                                                  Petitioner,                    Clerk
v.

ERIC HOLDER, United States Attorney General,

                                                  Respondent.




                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                BIA No. A096-041-199


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
           This case involves an appeal from a decision of the Board of Immigration
Appeals.        Petitioner argues that the BIA erred in making factual
determinations that he was not present in the United States prior to the year
2000, and was thus not grandfathered into eligibility for an adjustment of his
immigration status under 8 U.S.C. § 1255.                We review the BIA’s factual
determinations under the deferential substantial evidence standard. Because




       * Pursuant to Fifth Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Cir. R. 47.5.4.
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                                 No. 13-60680
there is substantial evidence supporting the BIA’s determination, we DENY
Patel’s petition.
                                       I.
      In October 2004, Ghanshyambbhai Patel, a native and citizen of India,
was charged in a notice to appear (NTA) with removability for illegally
entering the United States. The NTA alleged that Patel entered this country
“on or about 2002.” At his removal hearing Patel informed the immigration
court that the NTA was incorrect, he had arrived in the United States in 2000,
not 2002. Patel received his labor certification and filed an I-140 petition for
an immigrant worker to be eligible for adjustment of status, which was
approved.    Patel then filed an I-485 application to adjust his status to a
permanent resident.
      Under 8 U.S.C. § 1255, qualifying aliens who entered the United States
without inspection may nevertheless obtain lawful permanent resident status
from within the United States. This immigration benefit is only available to
those who are “grandfathered” in under § 1255(i)(1). To be grandfathered, the
alien must meet several conditions, including, for relevant purposes here, that
the alien was physically present in the United States on December 21, 2000. 8
U.S.C. § 1255(i)(1)(C).
      At his removal hearing in 2011, Patel offered his own testimony, which
contained several contradicting statements, an affidavit from a coworker, “Joe”
or “Jose” Fernandez, and at least one letter from a member of the clergy. The
government argued that Patel was not present prior to December 21, 2000 and
relied on the following: Patel’s testimony was inconsistent and he could not
explain why he did not indicate a date of entry on his I-485; Patel could not
explain why his Form I-213 indicated he entered the United States in 2002;
Joe Fernandez’s affidavit was signed “Jose Fernandez” and did not specify how
he knew Patel was in the United States during the relevant time period; the
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                                No. 13-60680
letter from the clergy member was unclear as to how he was associated with
Patel; Patel did not provide any documentation from his previous employer,
who assisted him when he first came to the United States.
      Based on the evidence, the Immigration Judge found that Patel had not
demonstrated by a preponderance of the evidence that he was physically
present in the United States prior to December 21, 2000, and ordered him
removed to India. Patel appealed to the BIA, which dismissed his appeal,
concluding that Patel had not demonstrated that the IJ’s finding that he failed
to meet his burden of proof was clearly erroneous. Patel now petitions this
court to review the BIA determination.
                                      II.
      Both parties submit that we have jurisdiction to review the BIA’s
determination under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA agrees
with the factual determinations of the Immigration Judge, we review both the
decision of the IJ and the BIA. Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir.
2002).   We review factual determinations under the substantial evidence
standard, reversing only when the evidence compels a contrary conclusion.
Nakimbugwe v. Gonzales, 475 F.3d 281, 283 (5th Cir. 2007). We must treat
the BIA’s factual determinations as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B).
                                     III.
      Patel asks us to overturn the BIA’s factual determination that he was
not physically present in the United States prior to December 21, 2000. At his
removal hearing in 2011, Patel bore the burden of proof by a preponderance of
the evidence standard. See 8 C.F.R. § 1245.10(n). The IJ, and the BIA, found
that Patel did not meet his burden.           The evidence supporting this
determination is: Patel’s inconsistent testimony; Patel’s inability to explain
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                                       No. 13-60680
why his Form I-213 bore an entry date of 2002; the absence of an entry date on
Patel’s I-485; the inadequacy of Patel’s supporting documentation; Patel’s
failure to produce testimony from his previous employer. We cannot say that
this evidence is insubstantial.
      Because the BIA’s determination is supported by substantial evidence,
we DENY Patel’s petition 1.




      1   Petitioner’s motion to file a supplemental letter brief out-of-time is GRANTED.
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