Mwagile v. Holder, Jr.

FILED
United States Court of Appeals
Tenth Circuit

March 30, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

GOODLUCK YARED MWAGILE,

Petitioner,

v. No. 09-9515
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

Respondent.

ORDER AND JUDGMENT *

Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.

Goodluck Yared Mwagile, a native and citizen of Tanzania, seeks review of

an order entered by the Board of Immigration Appeals (BIA) affirming an

Immigration Judge’s (IJ) removal order and denial of voluntary departure. The

agency determined that Mr. Mwagile had falsely represented that he was a United

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
States citizen on an employment form. Therefore, he was an inadmissible alien

who could not seek readmission for ten years. See 8 U.S.C.

§ 1182(a)(9)(A)(ii)(I). We exercise jurisdiction under 8 U.S.C. § 1252(a)(1) and

deny the petition for review.

Background

Mr. Mwagile lawfully entered the United States in August of 2001 as a

non-immigrant academic student to attend college in Wichita, Kansas. Before

attaining a degree, he stopped attending college and began working without

authorization. He also fathered a child while living in Kansas. In December of

2006, he married a United States citizen, with whom he had another child.

In June of 2007, Mr. Mwagile obtained employment in Tulsa, Oklahoma.

At the time he began that employment, he signed an employment-eligibility form,

Form I-9, on which he checked the box indicating he was a “citizen or national”

of the United States.

In July of 2008, he was charged with being a removable or inadmissible

alien because he failed to comply with the conditions of his non-immigrant

student status, see 8 U.S.C. § 1227(a)(1)(B), and for falsely claiming United

States citizenship, see id. § 1227(a)(3)(D). He conceded removability on the first

charge, but he contested the charge that he had falsely claimed citizenship by

checking the “citizen or national” box on his employment application. To avoid

-2-
removal on the conceded charge, Mr. Mwagile applied for an adjustment of status,

to that of a permanent resident alien, based on his marriage.

The IJ held a hearing, at which Mr. Mwagile appeared pro se. He and his

wife testified. On the Form I-9 issue, Mr. Mwagile testified that he checked the

“citizen or national” box thinking he might be a national because he lived in the

United States. He stated that he did not check the other boxes for “lawful

permanent resident” or “alien authorized to work” because those did not apply.

He also testified that he did not know what a “national” was. The IJ found this

testimony not credible, ordered Mr. Mwagile’s removal, and denied voluntary

departure. The IJ also denied Mr. Mwagile’s application for an adjustment of

status.

Mr. Mwagile appealed to the BIA. The BIA concluded that the IJ’s adverse

credibility determination was supported by substantial evidence and

Mr. Mwagile’s procedural due process rights were not abridged. The BIA

sustained the removal order, affirming the finding that Mr. Mwagile had falsely

claimed citizenship and was therefore inadmissible. The BIA further denied Mr.

Mwagile voluntary departure because he was ineligible due to his lack of good

moral character. See 8 U.S.C. §1229c(b)(1)(B).

The removal order, based on the agency’s finding that Mr. Mwagile had

falsely represented that he was a United States citizen, rendered him inadmissible.

8 U.S.C. § 1182(a)(6)(C)(ii)(I). As an inadmissible alien, he may not seek

-3-
readmission for ten years. Id. § 1182(a)(9)(A)(ii)(I). The parties do not dispute

that a waiver is not available for this ground of inadmissibility. See id. § 1182(h)

(authorizing discretionary waiver for some classes of aliens that do not include

those rendered inadmissible for falsely claiming citizenship).

On appeal to this court, Mr. Mwagile argues through counsel that (1) the

BIA erred in affirming the IJ’s credibility determination, (2) the BIA erred in

affirming the IJ’s finding that he was removable under § 1227(a)(3)(D) for falsely

claiming citizenship, (3) the BIA erred in finding him ineligible for adjustment of

status based on his marriage to a United States citizen, (4) the BIA erred in

finding him ineligible for voluntary departure, (5) the BIA failed to take

cognizance of his procedural due process claim, and (6) the ten-year reentry bar

violates his equal-protection and due-process rights.

Analysis

A. Standards of Review.

The BIA issued a brief order entered by a single member of the BIA under

8 C.F.R. § 1003.1(e)(5). We therefore review the BIA’s decision as the final

order of removal but “may consult the IJ’s opinion to the extent that the BIA

relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir.

2007). In addition, “when seeking to understand the grounds provided by the

BIA, we are not precluded from consulting the IJ’s more complete explanation of

those same grounds.” Id. (quotation omitted).

-4-
 While we review legal determinations de novo, our review of factual

findings is governed by the substantial evidence standard. See Witjaksono v.

Holder, 573 F.3d 968, 977 (10th Cir. 2009). Thus, we must “look to the record

for ‘substantial evidence’ supporting the agency’s decision: ‘[O]ur duty is to

guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.’” Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006) (quoting Elzour v. Ashcroft, 378 F.3d 1143,

1150 (10th Cir. 2004)). “The agency’s findings of fact are conclusive unless the

record demonstrates that ‘any reasonable adjudicator would be compelled to

conclude to the contrary.’” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir.

2008) (quoting 8 U.S.C. § 1252(b)(4)(B) (further quotation omitted)).

“Credibility determinations are factual findings . . . subject to the

substantial evidence test.” Uanreroro, 443 F.3d at 1204. Accordingly, “we will

not question the [IJ’s] or BIA’s credibility determinations as long as they are

substantially reasonable.” Woldemeskel v. INS, 257 F.3d 1185, 1192 (10th Cir.

2001). But an adverse credibility determination “may not be based upon

speculation, conjecture, or unsupported personal opinion.” Chaib v. Ashcroft,

397 F.3d 1273, 1278 (10th Cir. 2005) (quotation omitted). When evaluating a

request for relief from removal, an IJ may base his credibility determination on

inconsistencies and inaccuracies in the applicant’s testimony, as well as “on [his]

demeanor, candor, or responsiveness.” 8 U.S.C. § 1229a(c)(4)(C).

-5-
 B. Adverse Credibility Finding.

The IJ found not credible Mr. Mwagile’s testimony that by checking the

“citizen or national” box on his Form I-9, he intended to claim to be a national

rather than a citizen, noting Mr. Mwagile’s equivocal testimony about the

definition of “national.” The BIA determined that the IJ’s adverse credibility

finding was not clearly erroneous, observing that Mr. Mwagile testified that he

did not know what a “national” was, but later said he might be a national, and still

later suggested that a national might be someone living in the United States. 1

Mr. Mwagile argues that his testimony was not inconsistent and attempts to

explain that his statements were reasonable.

While Mr. Mwagile’s explanation for his inconsistent testimony may be

plausible, a plausible explanation is insufficient to reverse an adverse credibility

determination. Rather, having been adjudged not credible in the administrative

proceedings, the burden is on Mr. Mwagile to identify record evidence showing

that any reasonable adjudicator would be compelled to conclude to the contrary

on the credibility issue. See Uanreroro, 443 F.3d at 1204. He has failed to make

the required showing. We conclude that the agency’s adverse credibility finding

was based on substantial evidence and that no reasonable adjudicator would be

1
A “‘national of the United States’ means (A) a citizen of the United States,
or (B) a person who, though not a citizen of the United States, owes permanent
allegiance to the United States.” 8 U.S.C. § 1101(a)(22). “[T]he only remaining
noncitizen nationals are residents of American Samoa and Swains Island.” Miller
v. Albright, 523 U.S. 420, 467 n.2 (1998) (Ginsberg, J., dissenting).

-6-
compelled to conclude to the contrary. Consequently, the BIA’s credibility

determination will be upheld.

C. False Claim of Citizenship.

Mr. Mwagile next asserts that the BIA erred in affirming the IJ’s

determination that he falsely represented himself to be a United States citizen by

checking the “citizen or national” box on the Form I-9. He concedes that the

burden was on him to show that by checking the “citizen or national” box and

signing the Form I-9 he intended to claim to be a national, rather than a citizen.

See Kechkar v. Gonzales, 500 F.3d 1080, 1085 (10th Cir. 2007). He argues that

Form I-9 is ambiguous and he could have intended to claim to be a national based

on the disjunctive wording on the form. He further contends that the BIA failed

to conduct the required assessment of his intent to falsely represent himself as a

citizen and that his misunderstanding of the meaning of a “national” does not

qualify as a misrepresentation.

Mr. Mwagile relies on United States v. Karaouni, 379 F.3d 1139 (9th Cir.

2004), as supporting his claim that the disjunctive “citizen or national” permits a

conclusion that he claimed to be a national. In that case, the Ninth Circuit held

that checking the “citizen or national” box on a Form I-9 did not constitute a

violation of 18 U.S.C. § 911, which makes it a crime for a person to “falsely and

willfully represent[] himself to be a citizen of the United States,” because it was

not a crime to claim to be a national. Id. at 1143. By checking the “citizen or

-7-
national” box, the defendant did not necessarily claim to be a citizen, and

claiming to be a national, even if false, did not violate § 911. Id. Moreover,

whether it was implausible for the defendant to claim to be a national was not

relevant; rather, “[o]nly an assertion that he was a citizen of the United States

would have [violated § 911].” Id. at 1144.

In contrast to the criminal statute at issue in Karaouni, the statute

applicable to Mr. Mwagile, 8 U.S.C. § 1182(a)(6)(C)(ii)(I), does not require a

willful misrepresentation. 2 We have already upheld the BIA’s determination that

Mr. Mwagile’s testimony was not credible. His equivocal testimony does not

require a finding that he claimed to be a national, rather than a citizen. Thus,

Mr. Mwagile has not met his burden of proof.

D. Ineligibility for Adjustment of Status.

Mr. Mwagile also contends that because he was not inadmissible for falsely

claiming citizenship, he was eligible for the discretionary relief of adjustment of

status to that of a permanent resident alien. Because he had conceded

removability, the burden was on Mr. Mwagile to show “clearly and beyond doubt”

that he was eligible for adjustment of status and that the Attorney General should

2
Mr. Mwagile further relies on Forbes v. INS, 48 F.3d 439, 444 (9th Cir.
1995), which is inapposite because it concerned whether a misrepresentation on
the alien’s visa application was material, an issue not present here.

-8-
exercise discretion and grant the requested relief. See 8 U.S.C.

§§ 1182(a)(6)(C)(ii)(I), 1229a(c)(2)(A); Kechkar, 500 F.3d at 1085. 3

Although we are without jurisdiction to review the discretionary decision

whether to grant adjustment of status, see 8 U.S.C. §1252(a)(2)(B)(I), we do have

jurisdiction over Mr. Mwagile’s claim that the BIA misapplied the legal standards

for eligibility for an adjustment of status, see Lee v. Mukasey, 527 F.3d 1103,

1105 n.4 (10th Cir. 2008) (exercising appellate jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(2)(D) over issue of statutory construction pertaining to status

adjustment).

As applicable to Mr. Mwagile, in order to be eligible for a discretionary

adjustment of status under § 1255(a), he was required to show that (1) he was

admitted into the United States, (2) he applied for an adjustment, and (3) he is

admissible. But as an alien who conceded removability, he was an applicant for

admission, not an alien “admitted . . . into the United States” under § 1255(a).

See Kirong v. Mukasey, 529 F.3d 800, 804 (8th Cir. 2008). Therefore, the BIA

3
Mr. Mwagile argues that he was not required to prove admissibility “clearly
and beyond doubt” because he conceded removability only on the charge that he
failed to comply with the conditions of his non-immigrant student status, a charge
that does not render him inadmissible. He claims that the burden did not shift to
him unless and until the agency showed by clear and convincing evidence that he
had falsely claimed citizenship. He did not, however, raise this issue to the BIA.
“[O]bjections to procedural errors or defects that the BIA could have remedied
must be exhausted even if the alien later attempts to frame them in terms of
constitutional due process on judicial review.” Vicente-Elias v. Mukasey,
532 F.3d 1086, 1094 (10th Cir. 2008). Consequently, we do not address this
issue.

-9-
did not incorrectly apply the legal standards pertaining to eligibility for an

adjustment of status.

E. Ineligibility for Voluntary Departure.

Mr. Mwagile next contests the BIA’s determination that he was statutorily

ineligible for voluntary departure because he was lacking in good moral character

“under the catch-all provision of . . . 8 U.S.C. § 1101(f).” Admin. R. at 4.

Because we lack jurisdiction to consider discretionary aspects of

voluntary-departure decisions, Kechkar, 500 F.3d at 1083, Mr. Mwagile

characterizes this argument as one of statutory construction, arguing that the BIA

incorrectly construed § 1101(f). See id. (stating appellate jurisdiction reaches

questions of law involving statutory construction).

Mr. Mwagile contends that the BIA failed to discuss the relevant factors, as

required by Matter of Guadarrama de Contreras, 24 I. & N. Dec. 625 (BIA

2008). The BIA cited to the Guadarrama de Contreras case, thus indicating its

understanding that a determination under § 1101(f) that an alien is lacking in

good moral character is not mandated, but requires evaluation. The BIA

determined that § 1101(f) applied to make Mr. Mwagile ineligible for voluntary

departure. Although the BIA’s discussion is brief, “[t]he BIA is not required to

write an exegesis on every contention. What is required is merely that it consider

the issues raised, and announce its decision in terms sufficient to enable a

-10-
reviewing court to perceive that it has heard and thought and not merely reacted.”

Ismaiel, 516 F.3d at 1207 (quotation omitted). The BIA satisfied this standard.

F. Procedural Due Process.

Although the BIA addressed whether Mr. Mwagile’s procedural due process

rights were abridged because he was not represented by counsel at the

administrative hearing, he now avers that the BIA misconstrued his argument. He

asserts that he was denied due process because the IJ “failed to maintain adequate

safeguards in light of the fact that he was not represented.” Aplt. Opening

Br. at 29. According to Mr. Mwagile, the safeguards should have included

(1) allowing him to tell his story by direct examination, rather than by answering

questions posed by the IJ and government counsel; (2) ensuring that he was not

intimidated by the proceedings; (3) preventing interruptions and repetition of

answers; and (4) taking into account the language barrier, considering that

Mr. Mwagile’s English is limited. In addition, he notes that an attorney could

have elicited explanations for his answers, which could have clarified apparent

inconsistencies. He contends these errors prejudiced him by influencing the

adverse credibility finding.

In removal proceedings, “the procedural safeguards are minimal because

aliens do not have a constitutional right to enter or remain in the United States.”

Schroeck v. Gonzales, 429 F.3d 947, 951-52 (10th Cir. 2005) (quotation omitted).

In those proceedings, “aliens are entitled only to procedural due process, which

-11-
provides the opportunity to be heard at a meaningful time and in a meaningful

manner.” Id. at 952 (quotations omitted).

The BIA found no indication that Mr. Mwagile “was ‘unfairly prejudiced or

prevented from presenting his case due to a language barrier.’” Admin. R. at 4

(quoting Mr. Mwagile’s brief). The record reflects that on two occasions during

the hearing, the IJ invited Mr. Mwagile to make whatever statement he wanted,

id. at 227-28, 238; that Mr. Mwagile chose English as the language for the

hearing, id. at 187; and that Mr. Mwagile was able to communicate in English.

The record does not reflect that Mr. Mwagile was unduly intimidated by the

proceedings, that he was unreasonably required to repeat his testimony, or that his

testimony was adversely affected by interruptions. Therefore, petitioner’s claim

that his procedural due process rights were violated is without merit.

G. Equal Protection and Substantive Due Process.

Finally, we address Mr. Mwagile’s claims that 8 U.S.C. § 1182(h) violates

his rights to equal protection and substantive due process because it permits some

types of inadmissible aliens to seek a waiver of the ten-year reentry bar of

8 U.S.C. § 1182(a)(9)(A)(ii)(I), but not those who, like Mr. Mwagile, falsely

claimed United States citizenship. He argues that because he is ineligible to

apply for a waiver of inadmissibility, he is being treated more harshly than aliens

who are eligible for a waiver even though they have committed serious crimes,

-12-
while he has not. He further maintains that the ten-year reentry bar shocks the

conscience.

We review de novo a challenge to a statute’s constitutionality.

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152 (10th Cir. 1999). In the

immigration context, the “guarantee of equal protection . . . provides that a statute

shall not treat similarly situated persons differently unless the dissimilar treatment

is rationally related to a legitimate legislative objective.” Id. Judicial inquiry

into immigration legislation is very limited given that “over no conceivable

subject is the legislative power of Congress more complete than it is over the

admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quotation

omitted). Consequently, “in determining whether a rational basis exists for

making distinctions between classes of aliens, we are especially deferential.”

Latu v. Ashcroft, 375 F.3d 1012, 1020 (10th Cir. 2004). As we have explained,

“a statutory classification that neither proceeds along suspect lines
nor infringes fundamental constitutional rights must be upheld
against an equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification.” FCC v. Beach Communications, Inc., 508 U.S. 307,
313 (1993). On rational-basis review, “those attacking the rationality
of the legislative classification have the burden to negative every
conceivable basis which might support it.” Id. at 314-15 (quotation
omitted).

Id. (parallel citations omitted).

We conclude that the lack of a waiver in § 1182(h) for aliens who have

falsely claimed citizenship survives rational-basis review because Congress has

-13-
an interest in preventing those entering the United States from lying about their

citizenship. See Reid v. INS, 420 U.S. 619, 624 (1975) (holding that alien who

falsely represented himself to be a citizen is deportable as one who has entered

without inspection because he “significantly frustrated the process for inspecting

incoming aliens”). Accordingly, we reject Mr. Mwagile’s equal protection

challenge.

Mr. Mwagile also claims that his substantive due process rights were

violated because his removal order imposes a disproportionate penalty that bears

no real and substantial relation to the objective of preventing fraudulent claims to

citizenship. In support of this claim, Mr. Mwagile repeats his equal-protection

arguments, which we also find unpersuasive in this context. He further asserts

that the result of effectively barring his return to this country and his family

shocks the judicial conscience.

“[S]ubstantive due process prevents the government from engaging in

conduct that shocks the conscience or interferes with rights implicit in the concept

of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987) (citation

and quotations omitted). To the extent Mr. Mwagile argues that the BIA’s

removal order shocks the conscience, we cannot agree. The removal order merely

applied the laws enacted by Congress. We therefore reject Mr. Mwagile’s

substantive due process claim.

-14-
 Conclusion

The petition for review is DENIED.

Entered for the Court

Stephen H. Anderson
Circuit Judge

-15-