United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 16, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-60376
YASSER MOHAMED ADLY MOKHTAR ISMAIL,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A97 831 493)
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Yasser Mohamed Adly Mokhtar Ismail, a citizen of Egypt,
challenges the Board of Immigration Appeals’ (BIA) affirming the
Immigration Judge’s (IJ) decision that he is inadmissible under the
Immigration and Nationality Act (INA) for having made a false claim
of United States citizenship. Because the BIA’s decision preceded
our very recent opinion in Theodros v. Gonzales, 490 F.3d 396 (5th
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Cir. 2007), the BIA decision is VACATED and this matter is REMANDED
to the BIA for proceedings in the light of that opinion.
I.
Ismail entered the United States in August 1995 as a
nonimmigrant visitor, with authorization to remain until August
1996. Because he overstayed his visa, the Department of Homeland
Security (DHS), in 2004, served him with a Notice to Appear and
initiated removal proceedings.
Ismail conceded his removability under INA § 237(a)(1)(B), 8
U.S.C. § 1227(a)(1)(B), but sought an adjustment of status based on
his 2003 marriage to a United States citizen. DHS maintained
Ismail was inadmissible, under INA § 212(a)(6)(C)(ii), 8 U.S.C. §
1182(a)(6)(C)(ii), for having made a false claim of United States
citizenship in 1998, while enrolling as a part-time student at
Drexel University in Philadelphia, Pennsylvania. Ismail contended
the false statement did not render him inadmissible because it was
not made for the purpose of obtaining a “benefit” available to
citizens under state or federal law.
In March 2005, the IJ denied Ismail’s request for adjustment
of status and ordered him removed. The IJ found Ismail had
obtained a “benefit” from Drexel under state law because: despite
Drexel’s status as a private university, it received funding from
Pennsylvania; and Ismail would not have been allowed to enroll in
the part-time program as a non-citizen. The IJ’s decision was
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based, in part, however, on evidence that had not been in the
administrative record for the hearing, regarding state aid to
private institutions. (The IJ also stated: but for the bar
imposed by INA § 212(a)(6)(C)(ii), she would have exercised
discretion and admitted Ismail.)
In April 2006, the BIA affirmed the IJ’s decision. Noting
that the state-funding evidence on which the IJ relied had not been
admitted in the record, the BIA instead employed alternative
grounds. It held: even if Ismail had not received a state
“benefit”, his false statement had been made to accomplish the
“purpose” of gaining admission to college.
II.
The BIA’s factual findings are reviewed for substantial
evidence; its rulings of law, de novo. See Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003). Although we review
the BIA’s decision, and not that of the IJ, the latter is
considered to the extent it affects the BIA’s decision. See Lopez
De Jesus v. INS, 312 F.3d 155, 158 (5th Cir. 2002). If a statute
is arguably ambiguous, we give Chevron-deference to the BIA’s
interpretation of it, see Smalley v. Ashcroft, 354 F.3d 332, 335-36
(5th Cir. 2003), unless “there are compelling indications that
[its] interpretation is incorrect”, Rivera-Cruz v. INS, 948 F.2d
962, 966 (5th Cir. 1991).
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The sole issue at hand is the applicability of INA §
212(a)(6)(C)(ii). It renders inadmissible “[a]ny alien who falsely
represents ... himself ... to be a citizen of the United States for
any purpose or benefit under this chapter (including section 1324a
of this title) or any other Federal or State law ...”. 8 U.S.C. §
1182(a)(6)(C)(ii)(I) (emphases added). Ismail contends the
Government failed to show attending a private university was a
“purpose or benefit”. The Government responds: Ismail falsely
represented his status in order to gain admission to Drexel’s part-
time evening-division program; and, accordingly, he avoided the
visa and full-time study requirements of INA § 101(a)(15)(F)(i), 8
U.S.C. § 1101(a)(15)(F)(i).
Our court faced a similar issue in Theodros. There, we held
reasonable the BIA’s affirming the IJ’s decision that an Ethiopian
citizen was removable for falsely claiming United States
citizenship in applying for private-sector employment. Theodros,
490 F.3d at 402. Our doing so was based, in part, on federal law
making it unlawful to employ an illegal alien. As the BIA noted:
The statute provides that “any purpose or
benefit under this Act” is inclusive of
section 274A [8 U.S.C. § 1324a], the rules
governing unlawful employment of aliens by
private or government entities. Reference to
that section immediately following the
“purpose or benefit” clause of section
237(a)(3)(D)(I) [8 U.S.C. § 1227(a)(3)(D)(I)]
informs the inference that employment is an
example of the sort of purpose or benefit
contemplated by the statute.
4
Id. See, e.g., Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.
2000) (falsifying citizenship on a birth certificate, a violation
of federal immigration law, bars entry); Rana v. Gonzales, 175 F.
App’x 988, 996 (10th Cir. 2006) (falsely claiming United States
citizenship in order to obtain employment bars admissibility).
As noted, the BIA did not base its decision on Ismail’s
falsifying his citizenship to gain a benefit under state or federal
law; instead, it held he violated INA § 212(a)(6)(C)(ii) in order
to gain admission to Drexel University’s part-time program.
Theodros, which interpreted that section, was decided after the
BIA’s April 2006 decision at issue.
The INA provides that “[t]he Secretary of Homeland Security
shall be charged with the administration and enforcement” of the
statute and that the “determination and ruling by the Attorney
General with respect to all questions of law shall be controlling”.
8 U.S.C. § 1103(a)(1). Furthermore, a “judicial judgment cannot be
made to do service for an administrative judgment”. SEC v. Chenery
Corp., 318 U.S. 80, 88 (1943). This is especially true with regard
to immigration matters; as this court noted previously, “federal
immigration laws are exceedingly complex”. Marcello v. Brown, 803
F.2d 851, 857 (5th Cir. 1986) (internal quotation marks and
citation omitted). Accordingly, because the “principles of
Chevron deference are applicable to this statutory scheme”, INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999), remand is appropriate in
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order for the BIA to review its decision in the light of Theodros.
See INS v. Ventura, 537 U.S. 12, 16 (2002) (holding “a court of
appeals should remand a case to an agency for decision of a matter
that statutes place primarily in agency hands”).
III.
For the foregoing reasons, the BIA decision is VACATED and
this matter is REMANDED to the BIA for further proceedings
consistent with this opinion.
VACATED and REMANDED
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