United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 05-60980
BROOK EMMANUEL THEODROS,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Brook Emmanuel Theodros (Theodros) petitions this court to
review the decision of the Board of Immigration Appeals (BIA)
affirming an immigration judge’s ruling that he was removable and
denying his application for status adjustment because he had made
a false claim to United States citizenship to gain employment.
For the following reasons, the petition is DENIED.
I.
Theodros, a native of Ethiopia and a citizen of Italy, came
to the United States with his father in 1987, when he was
thirteen years old, as a derivative E-2 visa holder benefitting
from his father’s E-1 status. Theodros’s E-2 status was valid
until 1993, when he reached the age of eighteen. In 1993 and
1994, he served prison sentences in California for three
convictions for offenses of receiving stolen property—offenses
categorized as crimes involving moral turpitude. After
completing his sentences, Theodros moved to Dallas, Texas, where
he worked for four-and-a-half years at a hotel, the Marriott.
Then, from 1999 to 2003, Theodros worked for Nortel in Dallas
and, in 2003, Theodros moved to Hawaii to manage commercial real
estate.
On November 24, 2003, the Department of Homeland Security
(DHS)issued Theodros a Notice to Appear, charging him with
removability under 8 U.S.C. § 1227(a)(1)(B)1 of the Immigration
and Nationality Act (INA) since he remained in the United States
after the expiration of his visa. To avoid deportation, Theodros
sought an adjustment of status under 8 U.S.C. § 1255(a), which
1
8 U.S.C. § 1227(a)(1)(B) provides:
“(a) Classes of deportable aliens[:] Any alien
(including an alien crewman) in and admitted to the
United States shall, upon the order of the Attorney
General, be removed if the alien is within one or more
of the following classes of deportable aliens: (1)
Inadmissible at time of entry or of adjustment of
status or violates status . . . . (B) Present in
violation of law[;] Any alien who is present in the
United States in violation of this chapter or any other
law of the United States, or whose nonimmigrant visa
(or other documentation authorizing admission into the
United States as a nonimmigrant) has been revoked under
section 1201(i) of this title, is deportable.”
2
requires, inter alia, an alien to be “admissible to the United
States” in order to qualify for a status adjustment.2 Since
Theodros was inadmissible under 8 U.S.C. § 1182(a)(2)(A) because
he had committed crimes of moral turpitude, he sought a waiver of
inadmissibility under 8 U.S.C. §§ 1182(a)(2)(F) and (h) due to
the extreme hardship his removal would cause his wife, a United
States citizen. Therefore, if this waiver of inadmissibility
were granted, Theodros would be deemed admissible and eligible
for a status adjustment under 8 U.S.C. § 1255(a)(2).
Subsequently, at the initial hearing before the Immigration
Judge (IJ) on March 12, 2004, the IJ asked Theodros whether he
had authorization to work in the United States prior to his
wife’s I-130 petition and Theodros responded that he first
received authorization in 2000.3 The IJ then asked Theodros how
he obtained jobs prior to 2000, and Theodros answered that he
2
8 U.S.C. § 1255(a) provides:
“The status of an alien who was inspected and admitted
or paroled into the United States or the status of any
other alien having an approved petition for
classification . . . may be adjusted by the Attorney
General, in his discretion and under such regulations
as he may prescribe, to that of an alien lawfully
admitted for permanent residence if (1) the alien makes
an application for such adjustment, (2) the alien is
eligible to receive an immigrant visa and is admissible
to the United States for permanent residence, and (3)
an immigrant visa is immediately available to him at
the time his application is filed.”
3
At all times throughout all the proceedings Theodros was
represented by legal counsel.
3
“didn’t tell the truth.” The government then asked Theodros
whether he “ever told somebody [he was] a U.S. citizen”, and
Theodros replied, “On the jobs, yes, I did. On the job
application where it says, when it asks on that, I did.” The IJ
then suspended the hearing and, six weeks later, on April 23,
2004, DHS filed an additional charge against Theodros. DHS
alleged that, first, in his testimony on March 12, 2004, Theodros
admitted to falsely claiming United States citizenship to gain
employment and, second, that in November 1999, Theodros
represented himself as a United States citizen to gain employment
at Nortel. Based on those allegations, DHS charged Theodros with
removability under 8 U.S.C. § 1227(a)(3)(D)(i)4 for falsely
representing he was a United States citizen. This additional
charge jeopardized Theodros’s admissibility because 8 U.S.C. §
1182(a)(6)(C)(ii)(I)5 provides that such a false representation
of citizenship renders an alien inadmissible—and, unlike
inadmissibility caused by committing crimes involving moral
turpitude, no waiver is available for inadmissibility caused by
4
8 U.S.C. § 1227(a)(3)(D)(i) provides: “Any alien who
falsely represents, or has falsely represented, 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
Federal or State law is deportable.”
5
8 U.S.C. § 1182(a)(6)(C)(ii)(I) provides: “Any alien who
falsely represents, or has falsely represented, himself or
herself 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 is inadmissible.”
4
such false claiming of citizenship.
At the subsequent hearing on July 6, 2004, Theodros’s wife
testified that she is supported by the rental income from the
commercial real estate managed by her husband and would not be
capable of managing the property by herself if Theodros were
deported. Theodros also testified, admitting he made false
claims of United States citizenship to gain employment but
stating that he could not now remember to which employers he thus
lied or just when he did so. And, when asked “You don’t know
what you told Nortel in 1999,” Theodros replied “I can’t say 100
percent.” The government introduced a document from Theodros’s
Nortel employment application entitled “Determination of
Eligibility to Work on Jobs Affected by U.S. Export Control
Laws”, signed by Theodros and dated November 20, 1999. In this
document, Theodros answered affirmatively the question asking
whether the signatory was a United States citizen or permanent
resident. Theodros’s counsel then stated that Theodros admitted
that he had made claims to United States citizenship to obtain
employment, but further stated, with respect to the allegation
that on November 20, 1999 Theodros had claimed to be a United
States citizen for purposes of obtaining employment at Nortel,
that “we’re going to deny that, Your Honor.”
The IJ ruled he “would be inclined to grant the respondent
adjustment and the [hardship] waiver” but that “the issue before
5
the Court is whether there has been a false claim to U.S.
citizenship, since in the Court’s understanding of the law, that
removes any discretion that the Court might otherwise have.”
Finding that Theodros had made a false claim to United States
citizenship to gain employment, and that this is an unwaivable
ground of inadmissibility, the IJ denied Theodros’s request for
adjustment of status and ordered him to depart voluntarily or be
deported.
Theodros timely appealed to the BIA, which adopted and
affirmed the IJ’s decision and dismissed Theodros’s appeal.
Theodros then filed in this court a petition for review raising
the same claims presented to the BIA—essentially that the IJ’s
decisions denying Theodros’s application for status adjustment
and the waiver of inadmissibility were based on insufficient
evidence and that the IJ erred in interpreting the bar to
admissibility in 8 U.S.C. § 1182(a)(6)(C)(ii)(I) as applying to
false claims of United States citizenship to gain private sector
employment. Theodros’s motion for a stay of removal pending
review was denied. For the following reasons, we deny Theodros’s
petition.
II.
“We review factual findings of the Board to determine if
they are supported by substantial evidence in the record.”
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). “When, as
6
here, the BIA affirms the immigration judge and relies on the
reasons set forth in the immigration judge's decision, this court
reviews the decision of the immigration judge as well as the
decision of the BIA.” Ahmed v. Gonzales, 447 F.3d 433, 437 (5th
Cir. 2006).
Theodros seeks review of the IJ and BIA decisions finding he
made a false claim of United States citizenship under 8 U.S.C.
§§ 1227(a)(3)(D)(i) and 1182(a)(6)(c)(ii)(I). He argues that the
finding rests on insufficient evidence and on an incorrect
interpretation of the INA.
A. False Representation of Citizenship
Theodros argues that substantial evidence does not support
the finding that he falsely claimed United States citizenship.
We review the BIA’s factual findings for substantial evidence,
with deference given to the IJ’s credibility determinations. We
affirm the decision unless the “evidence compels a contrary
conclusion.” Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th
Cir. 1996). “In other words, the alien must show that the
evidence was so compelling that no reasonable factfinder could
conclude against it. This court reviews conclusions of law de
novo (although with the usual deference to the Board’s
interpretations of ambiguous provisions of the Act in accordance
with Chevron U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).” Id.
7
(citations omitted).
While under oath at his March 12, 2004 hearing, Theodros
admitted he had falsely claimed citizenship in order to obtain
employment before securing a work permit. However, he argues
that his admission is too vague to support a finding that he did
so after the September 30, 1996 effective date of 8 U.S.C.
§§ 1227(a)(3)(D) and 1182(a)(6)(C)(ii)(I). See Illegal
Immigration Reform and Immigrant Responsibility Act, Pub. L. No.
104-208, 110 Stat. 3009 (1996) § 344(c). Under 8 U.S.C.
§ 1227(a)(3)(D)(i), “Any alien who falsely represents, or has
falsely represented, 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 is
deportable.” See also 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (same
language but rendering the alien inadmissible). Both parties
agree that no waiver is available for this ground of
inadmissibility.
Theodros argues that he did not specify the employment for
which he admits making the false representations of citizenship,
and all of his employment prior to the Nortel job (which began in
1999) began prior to September 30, 1996. He also argues that the
Nortel form cannot establish that he made a false representation
for that employment since he could have (falsely) indicated he
was a lawful permanent resident, which does not lead to the same
8
non-waivable bar to admissibility as falsely representing United
States citizenship.
To support the IJ’s finding of a false representation of
citizenship, the government provided as rebuttal evidence at the
July 6, 2004 hearing a Nortel employment document6 signed by
Theodros on November 20, 1999, where he indicated a simple
affirmative answer to the question asking whether he was a United
States citizen or a permanent resident—with language
substantially similar to that on the Form I-9. Additionally,
Theodros testified under oath in court that he had represented
himself as a United States citizen to gain employment. In his
testimony he could not deny that he had done so to Nortel in
1999. The IJ had asked Theodros, during the discussion of how he
had gained employment prior to his wife’s 2001 petition, “[H]ave
you ever told somebody you’re a U.S. citizen” and Theodros
responded, after initially denying the question, “On the jobs,
yes, I did. On the job application where it says, when it asks on
that, I did.”
After reviewing the record, we cannot say as a matter of law
that the IJ was incorrect.7 Oral testimony and documentary
6
The government could not obtain a Form I-9 from Nortel,
which was described by government counsel as “very, very
uncooperative” and “very, very difficult.”
7
Theodros’s case is distinguishable from other cases cited,
such as the Ninth Circuit's United States v. Karaouni, 379 F.3d
1139 (9th Cir. 2004), and United States v. Mulumba, 162 Fed.Appx.
9
evidence (including Theodros’s testimony that he had falsely
claimed citizenship in connection with “the jobs,” plural, and
admitted at that time, before changing his story again, having
had only two jobs prior to 2001—Marriott and Nortel) clearly
support the IJ’s finding that he falsely represented to employers
that he was a United States citizen.8 Other circuits have held
similarly. See Ateka v. Ashcroft, 384 F.3d 954, 956–57 (8th Cir.
2004) (same finding under 8 U.S.C. § 1182(a)(6)(C) of the INA,
which has language identical to 8 U.S.C. § 1227(a)(3)(D)); Rana
274, 2005 WL 3226852 (5th Cir. 2005) (unpublished). In both of
these cases, the immigrants’ criminal convictions were reversed
when the sole evidence of their false and willful representations
of United States citizenship described in the opinions was their
respective checking of the same I-9 box language at issue here,
and the cases pertained to aliens charged with making a false
claim under 18 U.S.C. § 911, a criminal statute carrying the
higher burden of beyond a reasonable doubt. Karaouni, 379 F.3d
at 1145; Mulumba, 2005 WL 3226852 at *1. Also, the statutory
language is distinguishable, since 18 U.S.C. § 911 expressly
requires a willful misrepresentation. See Rana v. Gonzales, 175
Fed.Appx. 988, 2006 WL 1389118 (10th Cir. 2006) (following the
Eighth Circuit’s Ateka in a similar case and distinguishing the
Ninth Circuit’s Karaouni). In contrast, § 1227(a)(3)(D)(ii) and
§ 1182(a)(6)(C)(ii)(II) each make an exception for certain aliens
who (unlike Theodros) are children of a citizen and “reasonably
believed . . . that he or she was a citizen.”
8
We also note that Theodros never claimed he thought he was
a lawful permanent resident or that he ever represented himself
as such, and he admitted that he had represented himself as a
United States citizen in connection with applying for employment.
In his testimony he did not deny having so “told Nortel in 1999.”
And, both § 1227(a)(3)(D)(i) and § 1182(a)(6)(C)(ii)(I)
include oral as well as written false representations of
citizenship “for any purpose or benefit under this chapter
(including sections 1324(a) of this title) . . .”
10
v. Gonzales, 175 F. Appx. 988, 996–97 (10th Cir. 2006)
(unpublished; same).
B. Private Sector Employment
Theodros next argues that even if he falsely claimed United
States citizenship to gain or retain employment, seeking private-
sector employment does not fall under any purpose under the INA,
federal or state law required to make him inadmissible under 8
U.S.C. § 1227(a)(3)(D).
When a statute is arguably ambiguous, as is the case here,
we give deference as described in Chevron, 104 S.Ct. at 2793, to
the BIA’s interpretation of the statutory provision, and then
review the BIA’s legal conclusions de novo. Smalley v. Ashcroft,
354 F.3d 332, 335-36 (5th Cir. 2003) (affirming the BIA’s
definition of “moral turpitude,” which was not defined by the
statute, giving its interpretation Chevron deference). As we
have explained, “this two-step approach provides both
consistency—concerning the meaning of [the statute at issue]—and
a proper regard for the BIA’s administrative role—interpretation
of federal immigration laws.” Id.
8 U.S.C. § 1227(a)(3)(D)(i) requires the false
representation of citizenship to have been made “for any purpose
or benefit under this chapter (including section 1324a of this
title) or any Federal or State law.” 8 U.S.C. § 1324a makes it
illegal for any (or almost any – no exception is claimed here)
11
employer—public or private—to hire or continue to employ an
unlawful or unauthorized alien. Indeed, 8 U.S.C. §1324a(b)
requires employers to verify the eligibility of their potential
employee by, for example, completing an employment verification
form. Therefore, the BIA found that private sector employment
was a “purpose or benefit” under section 1227(a)(3)(D):
“The plain language of the statute belies [Theodros’s]
arguments, as 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 in the statute. Further, the statute
imposes no requirement that the “purpose or benefit”
obtained through the false citizenship representation
be obtained through a federal or state agency.
Instead, the statute deems removable an alien who
obtains a purpose or benefit otherwise available
through the Act or through any federal or state law,
through misrepresenting his citizenship status.”
As the BIA also recognizes, there is no published authority
finding that private employment is not a benefit or purpose under
the Act. Indeed, there is nothing in this record or in any
relevant authority, cited by the parties or otherwise, that leads
this court to find that the BIA’s construction of the statute is
not reasonable or “permissible.” See Chevron, 104 S.Ct. at 2793.
III.
For the foregoing reasons, Theodros’s petition is
DENIED.
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