Maria Lourdes Maciel v. ERIC H. HOLDER, Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Kevin T. Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA LOURDES MACIEL,
Petitioner,
v.
ERIC H. HOLDER, Attorney General,
Respondent.
No. 05-74047
Agency No. A75 307 200
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 4, 2009
San Francisco, California
Before: NOONAN, W. FLETCHER, Circuit Judges, and DUFFY ** , District Judge.
Maria Lourdes Maciel petitions for review of a final decision of the Board of
Immigration Appeals (“BIA”) affirming without opinion an Immigration Judge’s
(“IJ”) order denying her application for cancellation of removal under 8 U.S.C. §
1229b(b). The IJ found that Maciel was ineligible for cancellation of removal
FILED
JAN 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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because she gave false testimony and so, as a matter of law, could not show good
moral character. We affirm.
This court reviews the BIA’s findings of statutory ineligibility for
cancellation of removal for substantial evidence. See Bernal v. Imm. & Nat. Svc.,
154 F.3d 1020, 1022 (9th Cir. 1998). Where, as here, the BIA affirms without
opinion, this court reviews the immigration judge’s opinion as the final agency
determination. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004).
The Attorney General, through an IJ or the BIA, may grant cancellation of
removal to an otherwise deportable nonresident alien where that alien’s removal
would cause significant hardship to the alien’s spouse, parent, or child who is a
United States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b).
However, the Attorney General may only grant such a cancellation of removal
where the alien has met certain requirements, including that she has been a person
of good moral character during a period of ten years or more during which she was
continuously present in the United States. Id. The ten year period must
immediately precede the final agency decision on her application for cancellation
of removal. Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 796-98 (BIA 2005).
By statute, “no person shall be regarded as, or found to be, a person of good moral
character who, during the period for which good moral character is required to be

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established . . . has given false testimony for the purposes of obtaining any benefits
under [the United States immigration laws].” 8 U.S.C. § 1101(f)(6); Kungys v.
United States, 485 U.S. 759, 780 (1988).
It is undisputed that Maciel gave false testimony in her immigration hearing
on September 18, 2003, that those statements were her own, and that she gave that
testimony for the purpose of obtaining an immigration benefit. She recanted in her
subsequent testimony on September 30, 2003. In Llanos-Senarillos v. United
States, we held that “If the witness withdraws the false testimony of his own
volition and without delay, the false statement and its withdrawal may be found to
constitute one inseparable incident out of which an intention to deceive cannot
rightly be drawn.” 177 F.2d 164, 165 (9th Cir. 1949). The IJ here found that
Maciel’s recanting was neither timely nor voluntary, and that he was barred from
finding that Maciel had good moral character. A recantation is insufficient where
“The withdrawal . . . followed only after [petitioner] knew his false testimony
would not deceive.” Id. at 165-66. The IJ noted, accurately, that “It was only after
DHS stated its intention to call the asylum officer,” whose testimony would have
exposed inconsistencies in Maciel’s story, that she recanted. The IJ’s decision that
Maciel was within the statutory bar was thus supported by substantial evidence.
The petition is DENIED and the decision of the BIA is AFFIRMED.

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