                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 12-3695
                                       ___________

                                 FRANCISCO ALFARO,
                                           Petitioner

                                             v.

                           ATTORNEY GENERAL UNITED
                              STATES OF AMERICA,
                                        Respondent

                       ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A205-017-225)
                      Immigration Judge: Honorable Leo A. Finston
                       ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 1, 2013
            Before: AMBRO, HARDIMAN and ALDISERT, Circuit Judges

                               (Opinion filed: May 6, 2013)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Immigration proceedings were initiated against Francisco Alfaro, a native and

citizen of Costa Rica, after he pled guilty to and was convicted of falsely representing

himself to be a United States citizen for the purpose of obtaining a passport in violation
of 18 U.S.C. § 1542. 1 United States v. Alfaro, Crim. No. 11-0835 (D.N.J. Mar. 14,

2012). Alfaro was thereafter served with a Notice to Appear charging him as

inadmissible on three grounds: (1) pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), as an alien

present in the United States without being admitted or paroled; (2) pursuant to 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), as an alien who has been convicted of a crime involving moral

turpitude; and (3) pursuant to 8 U.S.C. § 1182(a)(6)(C)(ii), as an alien who falsely

represents himself to be a U.S. citizen for a purpose or benefit under the Immigration and

Nationality Act.

       Although Alfaro, proceeding pro se, claims that he was lawfully admitted to the

United States in 1994, the Department of Homeland Security was unable to verify this

claim. The Immigration Judge (IJ) determined that Alfaro did not sufficiently

demonstrate that his admission to the United States was lawful, and therefore found him

to be inadmissible on the first ground of the notice to appear. Alfaro admitted that he had

represented himself to be a citizen of the United States in order to obtain a United States

passport and that he had been convicted of violating 18 U.S.C. § 1542, A.R. 201-202, and

the IJ therefore found him to be inadmissible on the remaining grounds. The IJ also

determined that Alfaro was ineligible for waiver of inadmissibility under 8 U.S.C.

§ 1182(h), and ordered his removal. The Board of Immigration Appeals (BIA) dismissed

his appeal, and he now petitions for review.


1
 Alfaro was previously convicted of reckless manslaughter in violation of N.J. Rev. Stat.
§ 2C:11-4B (1).
                                           2
       We have jurisdiction under 8 U.S.C. § 1252(a)(1). 2 Abdulai v. Ashcroft, 239 F.3d

542, 547 (3d Cir. 2001). We review factual findings under a substantial evidence

standard and, under that standard, we must uphold the agency’s decision unless the

evidence not only supports a contrary conclusion, but compels it. See Abdille v.

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). We review the BIA’s conclusions of law

de novo. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).

       Alfaro argues that he was lawfully admitted to the United States and therefore

should not have been charged as inadmissible. Because he did not contest his alienage,

he bore the burden to demonstrate, “by clear and convincing evidence, that [he was]

lawfully present in the United States pursuant to a prior admission.” 8 U.S.C.

§ 1229a(c)(2)(B). Alfaro has conceded that the evidence he submitted was insufficient to

meet that burden. Petitioner’s Brief at 14. At most, the documents he proffered indicate

that he entered the United States in 1994; they offer no insight as to whether he was

admitted or paroled. 3 Accordingly, we are not compelled to disagree with the BIA’s


2
  After the dismissal of his appeal but prior to filing the instant petition for review, Alfaro
filed a motion to reconsider with the BIA. The BIA denied the motion to reconsider on
November 9, 2012, and Alfaro did not petition for review of that denial. Our review of
the present case is therefore limited to the BIA’s September 10, 2012 dismissal of his
appeal. Alfaro was removed to Costa Rica on September 25, 2012, but his removal does
not affect our jurisdiction. See Nken v. Holder, 556 U.S. 418, 435 (2009).
3
  Alfaro argues that he was prevented from presenting testimony from his grandmother
regarding the status of his entry to the United States at a May 22, 2012 hearing. That
hearing was continued to allow the government an opportunity to investigate the status of
his entry, which was to be resolved at a subsequent hearing on June 5. However,
although Alfaro notes that his grandmother was also present at that hearing, he offers no
                                              3
conclusions that Alfaro did not carry his burden and that the evidence he submitted on

appeal did not justify reopening proceedings. 8 C.F.R. § 1003.2(c). We agree with the

BIA that Alfaro was ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h).

Although that provision provides that the Attorney General has discretion to waive the

application of certain grounds of inadmissibility, it does not apply to two of the grounds

for which he was found to be inadmissible: as an alien present in the United States

without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i) and as an alien who

falsely represents himself to be a United States citizen under § 1182(a)(6)(C)(ii). We will

therefore deny the petition for review. 4




indication why he did not attempt to present her testimony at that time nor does he claim
that he was prevented from doing so.
4
  Alfaro’s argument that 8 U.S.C. § 1182(a)(6)(C)(ii) is a ground for inadmissibility but
not removability is without merit. Because he did not demonstrate that his entry to the
United States was lawful, he was appropriately charged as inadmissible rather than
removable. See In re Rosas-Ramirez, 22 I. & N. Dec. 616, 620–21 (BIA 1999). Aliens
deemed inadmissible under § 1182 are removable. See 8 U.S.C. § 1229a(e)(2) (defining
the term “removable”). We have thoroughly reviewed the record in this case and find
that Alfaro’s claim of bias on the part of the IJ and BIA is also meritless. We need not
address Alfaro’s remaining arguments regarding whether his conviction under 18 U.S.C.
§ 1542 is final for immigration purposes or constitutes a crime involving moral turpitude.
The BIA’s conclusion that Alfaro was inadmissible and removable was correct for the
reasons we have described and did not render Alfaro ineligible for any form of relief that
might otherwise have been available to him. Accordingly, any errors in other aspects of
the BIA’s decision would therefore have been harmless. Li Hua Yuan v. Att’y Gen., 642
F.3d 420, 427 (3d Cir. 2011).
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