13-2729
Ali v. Holder
                                                                                                 BIA
                                                                                              Reid, IJ
                                                                                         A090 663 698


                          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 United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of August, two thousand fourteen.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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NADIR ALI,
                                 Petitioner,

                 v.                                                     No. 13-2729-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
                                 Respondent.
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APPEARING FOR PETITIONER:                         ANNE E. DOEBLER, ESQ., Buffalo, New York.

APPEARING FOR RESPONDENT:                         PAUL FIORINO (Stuart F. Delery, Assistant
                                                  Attorney General, Civil Division, Douglas E.
                                                  Ginsburg, Assistant Director, Office of
                                                  Immigration Litigation, on the brief), Senior
                                                  Litigation Counsel, Office of Immigration
                                                  Litigation, United States Department of Justice,
                                                  Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

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

petition for review is DENIED.

       Petitioner Nadir Ali, a native and citizen of India, seeks review of a June 19, 2013

order of the BIA affirming the April 19, 2012 decision of an Immigration Judge (“IJ”)

ordering him removed and denying his application for adjustment of status. See In re Nadir

Ali, No. A090 663 698 (B.I.A. June 19, 2013), aff’g No. A090 663 698 (Immig. Ct. Batavia

Apr. 19, 2012). Ali argues that the BIA abused its discretion and violated his right to due

process by refusing to remand his case for the IJ to consider evidence of Ali’s former

attorney’s conviction for immigration fraud with respect to other clients, which Ali contends

supports his motion for adjustment of status. Under the circumstances of this case, we have

reviewed the BIA’s decision, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005),

under well-established standards of review, see Aslam v. Mukasey, 537 F.3d 110, 114 (2d

Cir. 2008); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005). We

assume the parties’ familiarity with the facts and the record of prior proceedings, which we

reference only as necessary to explain our decision to deny the petition.

       To demonstrate that the BIA abused its discretion or denied him procedural due

process by failing to grant remand, Ali must show that he was not provided with notice of

grounds for removal or an opportunity to be heard, resulting in “cognizable prejudice.”

Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal quotation marks

omitted); see also Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d at 156–57 (stating that


                                             2
motion to remand may be denied unless there is “likelihood that the new evidence presented

would alter the result”). Ali asserts that he has satisfied this burden because evidence of his

former attorney’s fraud conviction would have refuted removability. We disagree.

       Ali does not contest that he is removable for lack of valid entry documents. See 8

U.S.C. § 1182(a)(7)(A)(i)(I). Rather, he argues that he should not be removed because he

is eligible for an adjustment of status to lawful permanent resident. To be eligible for such

an adjustment of status, however, an alien must be admissible to the United States. See id.

§ 1255(a)(2).    Ali was found inadmissible as an “alien who, by fraud or willfully

misrepresenting a material fact, [sought] to procure . . . a visa, other documentation, or

admission into the United States or other benefit provided under [the Immigration and

Nationality Act].” Id. § 1182(a)(6)(C)(i). Ali asserts that this finding was improper because

his former attorney, Earl David, coerced Ali into falsely testifying that he was a religious

worker in support of an earlier application for adjustment of status.

       The argument fails because even if, as Ali asserts, David or his representative told Ali

to lie, Ali intentionally testified with full knowledge that his statements were false. This is

sufficient to demonstrate willful misrepresentation. See Emokah v. Mukasey, 523 F.3d 110,

116–17 (2d Cir. 2008) (providing that misrepresentation is “willful” under § 1182(a)(6)(C)(i)

if it is “done intentionally and deliberately and . . . not the result of innocent mistake,

negligence or inadvertence” (internal quotation marks and citation omitted)).

       In urging otherwise, Ali claims that he was forced to lie by fear that, if he did not, he

would have lost the fee paid to his attorney and faced adverse immigration consequences.

                                               3
Assuming that coercion is a defense to inadmissibility under § 1182(a)(6)(C)(i)—an issue

we need not here decide—such circumstances signal only that it was in Ali’s self-interest to

lie, not that his will was overborne so as to deny him free choice. See generally United

States v. Twenty Miljam-350 IED Jammers, 669 F.3d 78, 89 (2d Cir. 2011) (describing

duress requirement that “wrongful threat have the effect of precluding the exercise of free

will,” i.e., “circumstances permitted no other alternative” (internal quotation marks omitted)).

Certainly, Ali was not subjected to any physical force or threat thereof. See generally

Negusie v. Holder, 555 U.S. 511, 514–16 (2009) (remanding for BIA to determine whether

duress exception applies to “persecutor bar” to asylum and withholding of removal where

petitioner claimed he was physically forced to guard political prisoners); United States v.

Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (stating that duress defense to criminal liability

requires “threat sufficient to induce a well-founded fear of impending death or serious bodily

injury”). Ali’s failure to correct his 1999 false statements until a 2011 interview, conducted

after immigration authorities discovered the fraud, only reinforces the conclusion that his

misrepresentations were willful and not coerced.

       In any event, Ali cannot establish prejudice because he presented some evidence of

his lawyer’s fraudulent conduct in other immigration matters to both the IJ and BIA, both of

which nevertheless found that Ali’s own misrepresentations were willful. Ali points to no

further evidence that could be presented on remand that would cast his own knowing

falsehoods in a different light. Thus, Ali has failed to demonstrate “cognizable prejudice”

resulting from the BIA’s failure to remand. Garcia-Villeda v. Mukasey, 531 F.3d at 149; see

also Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d at 156–57.

                                               4
       As Ali has conceded removability, failed to satisfy his burden of demonstrating

admissibility, and not asserted eligibility for a waiver of his inadmissibility, Ali’s challenges

fail on the merits.

       We have considered Ali’s remaining arguments and find them to be without merit.

Accordingly, the petition for review of the BIA’s decision is DENIED.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk of Court




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