                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-10-2007

Costa v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1386




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                                             NOT PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                    __________

                    No. 06-1386
                    __________


                 GILSON COSTA,
                          Petitioner,

                         vs.

           ATTORNEY GENERAL OF
       THE UNITED STATES OF AMERICA,
                        Respondent.


                    __________

      On Petition for Review of a Final Decision
        of the Board of Immigration Appeals
                BIA No. A73-171-992
         Immigration Judge: Henry S. Dogin
                     __________

          Submitted on November 28, 2007
                   ___________


Before: BARRY, FUENTES and GARTH, Circuit Judges,
          (Opinion Filed: December 10, 2007)

                    ___________

                     OPINION
                    __________
GARTH, Circuit Judge:

      Gilson Costa (“Costa”) petitions this Court for review of the Board of Immigration

Appeals (“BIA” or “Board”) order of December 30, 2005 affirming the November 22,

2004 decision of the Immigration Judge (“IJ”) denying Costa’s application for

cancellation of removal and his request for voluntary departure. Costa contends that the

BIA and IJ erred in holding that he lacked good moral character by reason of Costa

having given false testimony, because he corrected his prior inaccurate statements

voluntarily and prior to exposure by the government. We agree and therefore remand to

the BIA for further proceedings to determine whether Costa’s deportation would

constitute exceptional and extremely unusual hardship to his wife and two children and

whether he consequently is eligible for cancellation of removal under 8 U.S.C. §

1229b(b)(1).



                                            I.

      A native of Brazil and born on April 13, 1947, Gilson Costa entered the United

States on April 5, 1992 on a six-month non-immigrant visa. Having overstayed the visa

period without authorization, Costa filed a timely application for asylum on October 18,

1993 with the Immigration and Naturalization Service (“INS”). Costa was summoned




                                           -2-
for an asylum interview on January 30, 2003, at which he appeared without counsel.1 At

the interview, he stated that he was a homosexual and that his sexual orientation was the

basis for his asylum application. The asylum officer denied the application, on the

grounds that Costa failed to establish actual past persecution or a well-founded fear of

future persecution, and referred the case to the immigration judge.

       On December 23, 2003, Costa married Sonia Paquet, a lawful permanent resident

with two children who are American citizens – all of whom he has helped support ever

since Sonia’s first husband (who was also Costa’s close friend) passed away from a heart

attack in 1993. The record also shows that Costa began living with Sonia and the

children in 2002.

       Upon obtaining counsel, Costa withdrew his asylum application and filed with the

immigration court an application for cancellation of removal or, in the alternative,

voluntary departure. Costa contended that he was eligible for cancellation of removal

under 8 U.S.C. § 1229b(b)(1), because he had established presence in the United States

for at least 10 years, provided evidence showing that he had good moral character, had

no criminal record, and demonstrated that his deportation would constitute exceptional

and extremely unusual hardship to his wife and two children.

       As part of his application for cancellation of removal, Costa submitted on October



       1
        It is unclear from the record why Costa’s asylum interview occurred nearly ten
years after his application.

                                            -3-
28, 2004 an affidavit, stating that he was not and had never been a homosexual and that

his statements during the asylum interview were incorrect. On the basis of this voluntary

admission, the IJ found that Costa was not a person of good moral character – which is

required for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(B) – because he had

given false testimony for the purpose of obtaining a benefit under the immigration laws,

in violation of 8 U.S.C. § 1101(f)(6).

       Without the finding of lack of good moral character, the IJ observed Costa had a

strong case for cancellation of removal since there was evidence that his deportation

would constitute exceptional and extremely unusual hardship to his wife and two

children. The IJ noted that:

              Here they had a father, the father died. They went through a
              tremendous trauma, especially Sonya (sic). What I would be
              doing again, is inducing greater trauma. Because now they
              have an opportunity to keep Mr. Costa here, I think the
              trauma that would result [from his deportation] would be
              exceptional and extremely unusual hardship.

A-R at 36.

       With respect to the specific impact on Sonia, who had herself recently been

granted cancellation of removal, the IJ stated:

              I recognize that she can pick herself up again and work hard.
              She’s a solid person. But again, it’s almost like the Chinese
              water torture, where you say to someone we give it to you,
              but we take it back and that would be terribly traumatic and
              that’s why the psychiatrist’s analysis [concluded] that
              [Costa’s deportation] would be difficult. I think that, giving
              and then taking away, would be so terribly traumatic that [it]

                                            -4-
               would result in exceptional and extremely unusual hardship.

A-R at 36-37.

        However, the IJ denied Costa cancellation of removal and voluntary departure on

the grounds of lack of good moral character. On December 30, 2005, a single-member

panel of the Board of Immigration Appeals adopted and affirmed the IJ’s decision in a

per curiam order. Costa filed a timely petition for review with this Court on January 27,

2006.

        In his petition, Costa argues that the BIA erred in affirming the IJ’s decision

because (1) he corrected his prior inaccurate statements voluntarily and prior to exposure

by the government such that they did not constitute false testimony and (2) in any event,

statements made in a non-adversarial proceeding do not constitute testimony.



                                              II.

        Before turning to the merits of Costa’s claims, we must determine whether we

have jurisdiction to do so. The Attorney General contends that Costa failed to exhaust

his administrative remedies on these issues by not raising them with the BIA. Resp. Br. at

14.

        Under Third Circuit precedent, exhaustion of remedies requires solely that the

alien raise an issue in the notice of appeal and does not necessitate any further briefing.

Bhiski v. Ashcroft, 373 F.3d 363, 368-69 (3d Cir. 2004). Costa satisfied this requirement


                                             -5-
by claiming in the Notice of Appeal to the BIA that the IJ’s “holding is incorrect because

. . . [t]he respondent voluntarily and without delay recanted that [prior inaccurate]

testimony.” A-R at 22.

       Consequently, we have jurisdiction pursuant to 8 U.S.C. § 1252(a), which confers

exclusive jurisdiction upon the courts of appeals to review final orders of deportation,

exclusion, or removal issued by the Board. Where, as here, the Board adopts the

immigration judge’s decision and adds its own reasons, this Court reviews both

decisions. Fadiga v. Atty. Gen., 488 F.3d 142, 153, n. 16 (3d Cir. 2007). Our standard of

review for questions of law is de novo . Id. at 153-54. We review findings of fact for

substantial evidence and, therefore, may not set them aside unless a reasonable fact-

finder would be compelled to find to the contrary. Gabuniya v. Atty. Gen., 463 F.3d 316,

321 (3d Cir. 2006).



                                            III.

                                             A.

       The main question in this appeal is whether inaccurate statements provided under

oath during an asylum interview constitute false testimony for purposes of establishing

an alien’s lack of good moral character under 8 U.S.C. § 1101(f)(6), even though they

were voluntarily corrected by the alien prior to any exposure by the government.

       Costa argues that the immigration judge and the BIA erred in holding that he


                                             -6-
lacked good moral character by providing false testimony because this statutory bar does

not apply when the alien “voluntarily and prior to any exposure of the attempted fraud

corrects . . . his testimony.” Pet. Br. at 11 (quoting Matter of M, 9 I & N Dec. 118 (BIA

1960). Costa notes that he “made this voluntary admission before his hearing on the

merits in the removal proceeding that followed the asylum interview, admitting, without

reservation, much less prompting from the government, that he had not told the truth in

his asylum interview.” Pet. Br. at 11-12. The Attorney General responds that Costa’s

correction of his prior statements was “untimely” since it did not occur before the asylum

officer but instead before the immigration judge. Resp. Br. at 14.

       Moreover, Costa argues that the statements provided during an asylum interview

do not constitute “testimony” because they are “oral responses to non-adversarial

questions in an asylum interview, where the government is not represented by cross-

examining counsel.” Pet. Br. at 14. Costa’s statements under oath during the asylum

interview constituted testimony under the statute.



                                                B.

       As to the question whether Costa gave false testimony, the BIA has repeatedly

held that 8 U.S.C. § 1101(f)(6)2 does not bar a person from establishing good moral


       2
           8 U.S.C. § 1101(f) sets forth, in relevant part, that:

       . . . No person shall be regarded as, or found to be, a person of good moral

                                                -7-
character when he has “voluntarily and prior to any exposure of the attempted fraud

corrected his testimony.” Matter of M, 9 I & N Dec. 118, 119 (BIA 1960). Similarly, the

BIA has “ held that where an alien, in an immigration proceeding, testifies falsely under

oath as to a material fact, but voluntarily and without prior exposure of his false

testimony, comes forward and corrects his testimony, perjury has not been committed.”

See also Matter of R-R, 3 I & N. Dec. 823, 825 (BIA 1949).

       We note that the facts in this case are not in dispute. Costa provided inaccurate

statements under oath during an asylum interview on January 30, 2003. Before the first

full hearing on the merits before an immigration judge on November 22, 2004, Costa

corrected these statements in a sworn affidavit submitted on October 28, 2004. Indeed,

there is nothing in the record and no allegation suggesting that the inaccuracy of these

statements would have been revealed by the government without Costa’s voluntary

admission. Consequently, based on the applicable BIA doctrine, we hold that Costa’s

inaccurate statements to the asylum officer did not constitute “false testimony” under 8

U.S.C. § 1101(f)(6) because he corrected them voluntarily and prior to any exposure by

the government.

                                             C.

       Good moral character is only one of four elements necessary for cancellation of



       character who, during the period for which good moral character is required to be
       established, is, or was – . . . (6) one who has given false testimony for the purpose
       of obtaining any benefits under this chapter. . . .

                                             -8-
removal under 8 U.S.C. § 1229b(b)(1), which provides that:

              The Attorney General may cancel removal of, and adjust to
              the status of an alien lawfully admitted for permanent
              residence, an alien who is inadmissible or deportable from the
              United States if the alien –

              (A) has been physically present in the United States for a
              continuous period of not less than 10 years immediately
              preceding the date of such application;
              (B) has been a person of good moral character during such
              period;
              (C) has not been convicted of an offense under section
              1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to
              paragraph (5); and
              (D) establishes that removal would result in exceptional and
              extremely unusual hardship to the alien’s spouse, parent, or
              child, who is a citizen of the United States or an alien
              lawfully admitted for permanent residence.

The IJ found that Costa satisfied the first and third elements, but not the second, and so

did not reach the issue of whether Costa’s deportation would constitute exceptional and

extremely unusual hardship to his wife and two children. Since we have no jurisdiction

to determine eligibility for cancellation of removal under the statute, we must remand the

case for further proceedings.



                                            IV.

       We hold that the BIA and the IJ erred in finding that Costa lacked good moral

character. We therefore remand for further proceedings consistent with this Opinion to

determine whether Costa’s deportation would constitute exceptional and extremely


                                             -9-
unusual hardship to his wife and two children and whether he is thus eligible for

cancellation of removal under 8 U.S.C. § 1229b(b)(1).




                                           -10-
