Dwumaah v. Atty Gen USA ( 2010 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-4140
KWAME DWUMAAH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A075-462-772)
Immigration Judge: Honorable Roxanne C. Hladylowycz
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 12, 2010
Before: RENDELL, HARDIMAN and
ALDISERT, Circuit Judges.
(Filed: April 12, 2010)
Kwame Dwumaah
Apartment 405A
215 West Walnut Street
Philadelphia, PA 19144
Pro Se Petitioner
Eric H. Holder, Jr.
Thomas W. Hussey
Kurt B. Larson
Justin R. Markel
Stacy S. Paddack
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
PER CURIAM.
Kwame Dwumaah, a native and citizen of Ghana, seeks
review of a final order of removal entered by the Board of
Immigration Appeals (“BIA”). Finding no error in the
conclusion that Dwumaah is removable, we will deny the
petition for review.
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I.
Dwumaah, currently age forty-nine, entered the United
States in 1989 on a six-month visitor visa and overstayed. From
1997 to 2001, Dwumaah was enrolled in two colleges in the
Philadelphia area, obtaining a degree in nursing which he
financed in part through student loans procured from the federal
government under the alias “Simon Dwumaah.” In 1999,
Dwumaah adjusted status to conditional lawful permanent
resident based upon his marriage to a United States citizen. In
July 2004, the Department of Homeland Security (“DHS”)
terminated the conditional resident status after concluding
through interviews with Dwumaah and his wife that the
marriage was fraudulent. In November 2004, DHS served a
Notice to Appear charging Dwuumah as removable under INA
§ 237(a)(1)(D)(i) due to termination of the conditional resident
status.
Shortly thereafter, a grand jury in the District Court for
the Middle District of Pennsylvania indicted Dwumaah on
multiple fraud charges stemming from his unlawful receipt of
the above-mentioned student loans. Dwumaah eventually
entered a guilty plea to one count of theft of government monies
in violation of 18 U.S.C. § 641. He was sentenced to five
months in prison and ordered to pay $75,217 in restitution,
reflecting the total loss from his conduct. This Court affirmed
the conviction and sentence. United States v. Dwumaah, No.
06-1399, 181 Fed. App’x 309, 310 (3d Cir. 2006). The District
Court denied post-conviction relief. United States v. Dwumaah,
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No. 1:05-cr-00157, 2007 U.S. Dist. LEXIS 89459 (M.D. Pa.
Dec. 5, 2007).1
In 2006, DHS amended the Notice to Appear in light of
the conviction to include three additional charges of
removability: (1) INA § 237(a)(2)(A)(i) (crime involving moral
turpitude); (2) INA § 237(a)(1)(A) (inadmissible at time of
adjustment of status); and (3) INA § 237(a)(3)(D) (false claim
of United States citizenship). Dwumaah responded before the
Immigration Judge (“IJ”) by arguing that he is not removable
under any of the grounds charged. He did not apply for asylum
or other relief from removal.
The IJ concluded that DHS’s decision to terminate the
conditional permanent resident status was improper because
DHS failed to prove by a preponderance of the evidence that the
facts and information in Dwumaah’s petition for adjustment of
status were untrue. Accordingly, the IJ held that Dwumaah is
not removable under § 237(a)(1)(D)(i). However, the IJ also
concluded that DHS proved by clear and convincing evidence
that Dwumaah is removable under § 237(a)(3)(D) for having
1
The District Court noted that “[Dwuumah] admitted,
both in his sentencing memorandum and in open court, that he
used a false social security number to apply for and receive
financial aid for his education. Moreover, ... [Dwuumah] gave
a lengthy statement admitting to applying for and receiving
loans and other benefits through the use of a false name and
social security number.” United States v. Dwumaah, 2007 U.S.
Dist. LEXIS 89459, at *11 (quotation marks and citations to
trial record omitted).
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falsely claimed United States citizenship on his student loan
applications.2 After Dwumaah appealed, the BIA remanded the
matter for the IJ to consider Dwumaah’s eligibility for
cancellation of removal under INA § 240A(a).
On remand, the IJ reaffirmed the finding that Dwumaah
is removable for falsely claiming citizenship, and denied
cancellation of removal. Dwumaah challenged both rulings on
appeal, and the BIA affirmed. The BIA refused to disturb the
finding that Dwumaah falsely claimed citizenship when
applying for federal financial aid, concluding that the
government met its burden by demonstrating removability
through clear and convincing, albeit circumstantial, evidence.
The BIA also agreed that Dwumaah is not entitled to
cancellation of removal. Dwumaah timely filed his petition for
review.
II.
2
Although the IJ’s final order stated that Dwumaah “is
removable under section 237(a)(1)(A), 237(a)(2)(A)(i), and
237(a)(3)(D) of the Act,” A.R. at 499, we agree with respondent
that the IJ’s April 13, 2007, opinion, and the subsequent October
23, 2008, opinion, clearly reflect that the finding of removability
was based upon § 237(a)(3)(D). See Respondent’s Br. at 13 n.3,
17 n.4. The BIA also limited its analysis to the question of
removal under § 237(a)(3)(D). A.R. at 32-33.
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We have jurisdiction under 8 U.S.C. § 1252(a). Where,
as here, the BIA essentially adopted the IJ’s findings and
discussed the IJ’s decision, we review the decisions of both the
IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.
2004). We review agency factual determinations under the
substantial evidence standard and accept those determinations
as conclusive unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.
2003) (en banc). We exercise de novo review over legal
determinations. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d
Cir. 2006).
Dwumaah’s sole challenge in this Court is to the
determination that he is removable under INA § 237(a)(3)(D).3
Section 237(a)(3)(D) provides in relevant part that “[a]ny alien
who falsely represents, or has falsely represented, himself to be
a citizen of the United States for any purpose or benefit under ...
any Federal .. law is deportable.” 8 U.S.C. § 1227(a)(3)(D).
The government bears the burden to establish removability “by
clear and convincing evidence.” 8 U.S.C. § 1229a(c)(3)(A).
“Only if [DHS] satisfies this burden, based on evidence
presented at a hearing, may the immigration judge issue an order
authorizing removal.” Duvall v. Att’y Gen., 436 F.3d 382, 388
(3d Cir. 2006). “No decision on deportability shall be valid
3
Dwumaah does not challenge the denial of cancellation
of removal in his opening brief, and thus we deem that issue
waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir.
2005).
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unless it is based upon reasonable, substantial, and probative
evidence.” 8 U.S.C. § 1229a(c)(3)(A).
Dwumaah argues that DHS failed to meet its burden of
proof because he never admitted that he completed the loan
applications, and he objects that DHS made its case solely
through circumstantial evidence linking him to the applications.
These arguments are plainly insufficient. The record contains
verified copies of Federal Student Aid applications for 1996-97
and 1997-98 submitted by “Simon Dwumaah.” A.R. at 807-
814. The applicant marked “yes” to indicate that he is a citizen
of the United States and signed both forms. While Dwumaah
claims no knowledge of these forms, he conceded that he
applied for student loans, that he used the alias Simon Dwumaah
when he did so, and that he attended the school listed on the
applications. In addition, the forms set forth his correct home
address and marital status, as well as a social security number
and false date of birth that were linked to Dwumaah through his
own admissions. Given this record, the IJ did not err in drawing
the clear inference that Dwumaah completed the applications
and falsely claimed citizenship for an improper purpose – a
finding that is further supported by the undisputed record of his
conviction for theft of government monies.
While Dwumaah correctly notes that DHS was unable to
verify conclusively through forensic analysis that the signatures
on the applications belonged to him, we discern no error in the
IJ drawing a negative inference from Dwumaah’s refusal to
provide a handwriting exemplar. As the IJ observed,
Dwumaah’s mere denial of having completed the forms does not
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undermine the clear and convincing evidence supporting the
ground for removal.
In short, substantial evidence supports the finding that
DHS met its burden of proving that Dwumaah falsely claimed
citizenship on at least two occasions in connection with federal
student loan applications. Because proof of even one false claim
of citizenship supports removal under § 237(a)(3)(D),
Valenzuela-Solari v. Mukasey, 551 F.3d 53, 58 (1st Cir. 2008),
the charge of removability was properly sustained.
III.
We have considered Dwumaah’s remaining contentions
but find them without merit and in need of no separate
discussion. We will deny the petition for review.
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