12-4644-ag (L)
Patel v. Holder

                             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
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 Courthouse, 40 Foley Square, in the City of New York, on the 29th day of
April, two thousand fourteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         JOHN M. WALKER, JR.,
         CHRISTOPHER F. DRONEY,
                     Circuit Judges,
________________________________________________

MITABEN NARANDAS PATEL, KETANKUMAR
BABUBHAI PATEL,

             Petitioners,

                    v.                                                    Nos. 12-4644-ag, (Lead)
                                                                               13-623-ag (Con)
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

         Respondent.1
________________________________________________


For Petitioners:                    JOHN J. HYKEL, Philadelphia, PA.



       1
           The Clerk of the Court is directed to amend the caption as set forth above.
For Respondent:                   KRISTIN MORESI, Trial Attorney, Office of Immigration
                                  Litigation, Civil Division (Stuart F. Delery, Assistant Attorney
                                  General; Shelley Goad, Assistant Director, on the brief), U.S.
                                  Department of Justice, Washington, DC.


        ON CONSIDERATION of these petitions for review of decisions of the Board of

Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, and DECREED that

petition 12-4644 is GRANTED, the corresponding decision of the BIA is VACATED, the case

is REMANDED for proceedings consistent with this order, and petition 13-623 is DENIED as

moot.

        Petitioners Mitaben Narandas Patel and Ketankumar Babubhai Patel, wife and husband

and natives and citizens of India, petition for review of two decisions of the BIA entered on

November 5, 2012 and January 22, 2013, respectively. In its first decision, the BIA denied the

Patels’ motion to remand and affirmed a October 1, 2010 decision of an Immigration Judge

(“IJ”), who had found the Patels statutorily ineligible for adjustment of status under 8 U.S.C.

§ 1255(i) and ordered the Patels removed. In its second decision, the BIA denied the Patels’

motion for reconsideration. We assume the parties’ familiarity with the underlying facts,

procedural history, and issues presented for review.

        Where, as here, “the BIA adopts the decision of the IJ and merely supplements the IJ’s

decision, . . . we review the decision of the IJ as supplemented by the BIA.” Yan Chen v.

Gonzalez, 417 F.3d 268, 271 (2d Cir. 2005). Although we generally lack jurisdiction to review a

discretionary denial of an application for adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)(i),

we may review the decisions here regarding the Patels’ statutory eligibility for such relief. See

id. § 1252(a)(2)(D) (permitting review of questions of law); Sepulveda v. Gonzales, 407 F.3d 59,


                                                 2
62–63 (2d Cir. 2005) (holding statutory eligibility to be a question of law). We review the factual

findings underlying the agency’s denial of adjustment of status for substantial evidence. See 8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Under this

standard, “the administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Accordingly, we

must defer to the agency’s choice between competing views of the evidence “so long as the

deductions are not ‘illogical or implausible.’” Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.

2007) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 557 (1985)).

        Under 8 U.S.C. § 1255(i), certain otherwise ineligible aliens may obtain adjustment of

status if, among other things, the alien “is physically present in the United States on December

21, 2000.” Id. § 1255(i)(1)(C). The Department of Justice Executive Office for Immigration

Review has promulgated regulations governing the “[e]videntiary requirement to demonstrate

physical presence on December 21, 2000.” 8 C.F.R. § 1245.10(n). Here, the agency denied the

Patels’ application for adjustment of status on the ground that “[t]he regulation enumerates the

type of evidence required to satisfy the requirement” of showing physical presence on December

21, 2000, and “none of the evidence submitted by the [Patels] . . . is sufficient to meet the

regulation.” No. 13-623, Cert. Admin. R. 25. The agency reasoned that the evidence submitted

constituted “witness statements rather than official records maintained by a government or

business.” Id. The IJ likewise afforded little or no weight to the testimony, letters, affidavits, and

other evidence the Patels presented on the ground that the Patels “did not provide any of the

records set forth in the regulation.” Id. at 187.




                                                    3
          The agency’s reading of the governing regulation is mistaken. The regulation does not

“enumerate[] the type of evidence required” so as to limit acceptable evidence to “official

records maintained by a government or business.” Instead, the regulation enumerates certain

types of official documentary evidence—including “Service [immigration] documentation,”

“other government documentation,” and “non-government documentation”—that applicants

“may submit.” 8 C.F.R. § 1245.10(n)(2)–(4). The regulation makes clear, however, that “[t]he

adjudicator will evaluate all evidence on a case-by-case basis.” Id. § 1245.10(n)(5)(i) (emphasis

added).

          To be sure, the regulation also provides that “[t]he adjudicator . . . will not accept a

personal affidavit attesting to physical presence on December 21, 2000, without requiring an

interview or additional evidence to validate the affidavit.” Id. But this provision does not support

the agency’s position. To begin with, the provision confirms that applicants are permitted to

submit evidence other than official government or business documentation. Moreover, the Patels

did not rely solely on unvalidated affidavits. To the contrary, both applicants testified before the

IJ about Mitaben’s physical presence on December 21, 2000, as well as about other factual

information set forth in the various letters, affidavits, and other documents the Patels submitted.

The IJ did not find the Patels’ testimony to be incredible. See 8 U.S.C. §1229a(c)(4)(C) (“[I]f no

adverse credibility determination is explicitly made, the applicant or witness shall have a

rebuttable presumption of credibility on appeal.”).

          In support of their motion to remand the case to the IJ, the Patels also submitted

additional affidavits from Praveen Lal and Dr. Babubhai Patel, both of whom had been

unavailable for the initial hearing before the IJ but offered to testify in re-opened proceedings if


                                                    4
asked. The BIA disregarded these offers of testimony as “not material to the ultimate outcome of

this case” because they were “not the type of documentation that is required to establish physical

presence contemplated under [the regulation].” No. 13-623, Cert. Admin. R. 26. But live

testimony from Lal and Dr. Patel, if credited, could have validated those witnesses’ prior written

statements attesting to Mitaben’s physical presence in the United States. See 8 C.F.R. §

1245.10(n)(5)(i) (contemplating validation of an affidavit through “an interview”). Indeed, even

apart from the prior written statements, testimony from Lal and Dr. Patel could have

independently supported the Patels’ claims. The agency’s finding of immateriality thus was

mistaken.

       We have considered all of the agency’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, petition 12-4644 is GRANTED, the

corresponding decision of the BIA is VACATED, the case is REMANDED for proceedings

consistent with this order, and petition 13-623 is DENIED as moot.

                                         FOR THE COURT:
                                         CATHERINE O’HAGAN WOLFE, CLERK




                                                5
