Estevez v. Attorney General of United States , 307 F. App'x 694 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-21-2009
Estevez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1125
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-1125
___________
CARMELA ESTEVEZ,
Appellant,
v.
ATTORNEY GENERAL OF THE UNITED STATES
___________
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A78-822-787)
Immigration Judge: Annie S. Garcy
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 5, 2009
Before: FUENTES and FISHER Circuit Judges, DITTER,* District Judge.
(Opinion Filed:January 21, 2009)
OPINION OF THE COURT
*
Honorable J. William Ditter, Jr. Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
1
FUENTES, Circuit Judge:
Carmela Estevez is a citizen of the Dominican Republic who entered the United
States as an adult in 1995 without inspection. Estevez is the beneficiary of an approved
visa petition as the spouse of a lawful permanent resident. However, she was unable to
adjust her status and was ordered removed after an Immigration Judge (IJ) found that she
was inadmissible for falsely representing herself to be a United States citizen.1 See 8
U.S.C. § 1182(a)(6)(C)(ii) (“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 . . . or any other Federal or State law is inadmissible.”). Estevez petitions for
review of the Board of Immigration Appeals’s (BIA) order affirming the IJ.2
In January 1999, Estevez found the birth certificate of a United States citizen
named Norma Ramirez. Estevez took the birth certificate to the New Jersey Department
of Motor Vehicles (DMV) and used it to apply for an identification card. A DMV
inspector realized that the birth certificate did not belong to Estevez and called the police.
1
Estevez was granted voluntary departure, but is not eligible for other relief.
2
We have jurisdiction over this petition under 8 U.S.C. § 1252. “We have plenary
review over questions of law, subject to the principles of deference articulated in Chevron
v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d
694[ ] (1984).” Wong v. Att’y Gen. of U.S., 539 F.3d 225, 230-31 (3d Cir. 2008)
(citations and internal quotation marks omitted). We review factual determinations under
the substantial evidence standard. Gabuniya v. Att’y Gen. of U.S., 463 F.3d 316, 321 (3d
Cir. 2006). Accordingly, “we may decline to uphold the BIA’s findings only if the
evidence compels a contrary conclusion.” Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir.
2003).
2
A police report of the incident indicates that Estevez told the arresting officer that she was
an illegal immigrant.
On appeal, Estevez claims that she never intended to represent that she was a
United States citizen to obtain a benefit under state or federal law. Estevez maintains that
she does not speak English and did not understand the significance of the birth certificate.
Estevez also argues that applying for a state identification card does not constitute
seeking a benefit under the Immigration and Nationality Act (INA) “or any other Federal
or State law.” Finally, Estevez argues that she recanted any claim of citizenship in a
timely manner.
At a hearing on her admissibility, Estevez admitted that she took Ramirez’s birth
certificate to the DMV because she “thought of gaining an ID, obtaining an ID, with the
purpose of working.” (R. 126.) Estevez explained that she knew that she could not take
her own birth certificate to the DMV because she was not born in the United States and
“[b]ecause people [who] do not have a work permit, or a green card, cannot apply for
those type of permits.” (R. 137.) Conversely, she understood that Ramirez was born in
the United States because the birth certificate “said on the top, United States.” (R. 138.)
Estevez also testified that she was pretending to be Norma Ramirez when she presented
the birth certificate to the DMV.
Estevez’s testimony is sufficient to establish that she intended to represent herself
to be a U.S. citizen by using Ramirez’s birth certificate, and further that she intended to
3
use that certificate to obtain a state benefit, an identification card she hoped to use in turn
to obtain employment. Cf. Rodriguez v. Mukasey, 519 F.3d 773, 777 (8th Cir. 2008)
(holding that “an alien who marks the ‘citizen or national of the United States’ box on a
Form I-9 for the purpose of falsely representing himself as a citizen to secure employment
with a private employer has falsely represented himself for a benefit or purpose under the
Act.”); Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007) (same).
As to Estevez’s argument that she timely recanted any citizenship claim, the BIA
has held that certain misrepresentations may not bar receipt of immigration benefits under
the INA where the alien “voluntarily and prior to any exposure of the attempted fraud
corrected his testimony.” In re M—–, 9 I&N Dec. 118, 119 (BIA 1960). However,
Estevez testified that the DMV inspector immediately discovered her misuse of the birth
certificate and that she never confessed to him that the certificate did not belong to her.
Because we find that there was substantial evidence that Estevez falsely claimed to
be a United States citizen to obtain a benefit under state law, we will deny the petition.
4