Raymond Dakura v. Eric Holder, Jr. , 772 F.3d 994 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2246
RAYMOND DAKURA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 29, 2014 Decided: November 24, 2014
Before MOTZ, KING, and KEENAN, Circuit Judges.
Petition for review denied by published opinion. Judge King
wrote the opinion, in which Judge Motz and Judge Keenan joined.
ARGUED: Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE,
PLLC, Alexandria, Virginia, for Petitioner. Erica Miles, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Stuart F. Delery, Assistant Attorney General, Civil
Division, Emily Anne Radford, Assistant Director, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
KING, Circuit Judge:
Raymond Dakura, a native of Ghana in West Africa, petitions
for review of the September 13, 2013 decision of the Board of
Immigration Appeals affirming the denial of his application for
adjustment of status (the “BIA Decision”). 1 As explained below,
we agree with the BIA that an alien — like Dakura — who falsely
claims United States citizenship in seeking private employment
is inadmissible as a matter of law under 8 U.S.C.
§ 1182(a)(6)(C)(ii)(I) (the “false claim bar”). We therefore
deny Dakura’s petition for review.
I.
Dakura entered the United States on January 16, 2008,
pursuant to a nonimmigrant F-1 student visa. Dakura overstayed
his visa by remaining in this country after he lost his status
as a student. 2 On August 5, 2009, the Department of Homeland
Security (the “DHS”) issued Dakura a notice to appear, thereby
1
The BIA Decision is found at J.A. 3-4. (Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed
by the parties in this matter.)
2
An alien who has been admitted to the United States by way
of an F-1 student visa is “admitted for duration of status.” 8
C.F.R. § 214.2(f)(5)(i). The term “duration of status” is
defined as “the time during which an F-1 student is pursuing a
full course of study at an educational institution . . . or
engaging in authorized practical training following completion
of studies.” Id.2
instituting removal proceedings against him. The evidence
submitted in those proceedings is summarized below.
A.
Upon entering the United States from Ghana, Dakura was
enrolled as a student at Lindenwood University in Missouri. His
uncle, who was paying Dakura’s tuition and acting as his
sponsor, soon passed away. Because Dakura was unable to afford
college tuition and related expenses, he withdrew from the
university, though he hoped to return later, once he secured the
necessary resources. At the time, Dakura was without any means
of supporting himself. Dakura met a man in Missouri who
arranged for Dakura to see Francis Assamoir in northern
Virginia. In March 2008, Dakura relocated to Virginia, where he
entered into a support agreement with Assamoir. Pursuant
thereto, Dakura agreed to work and give his earnings to
Assamoir, who was to provide Dakura with housing, calling cards,
and living expenses.
In order to fulfill his part of the support agreement with
Assamoir, Dakura had to obtain employment. His immigration
status, however, posed a serious obstacle. The Immigration and
Nationality Act (the “INA”) requires a job-seeker to verify that
he is either a United States citizen or a national of this
country, and thus authorized to be employed. See 8 U.S.C.
§ 1324a(a)-(b). Dakura bypassed that roadblock by using the
3
identities of two American citizens — Emmanuel Nicholas Habib
and Solomon Soehedey — to establish his eligibility for
employment at McDonald’s and Target. In each instance, Dakura
sought employment by executing the DHS’s Employment Eligibility
Verification Form I-9 (a “Form I-9”), as required by federal
law. See 8 U.S.C. § 1324a(b)(1)-(2), 8 C.F.R. § 274a.2.
Therein, Dakura used Habib’s and Soehedey’s identities at
McDonald’s and Target, marking and signing Forms I-9 to attest,
under penalty of perjury, that he was a “citizen or national of
the United States.” J.A. 101.
Dakura continued in his arrangement with Assamoir for
approximately a year. Dakura eventually balked, however, upon
realizing that the plan would not work, in that he was not
earning or saving enough money to re-enroll at Lindenwood
University. Dakura thus decided to terminate the arrangement
with Assamoir, and so advised him. Assamoir responded by
reporting Dakura to the authorities. As a result, Dakura was
arrested and charged with several counts of identity theft and
forgery for using false identities in seeking jobs with
McDonald’s and Target. Those charges were ultimately dismissed,
but they resulted in the DHS instituting removal proceedings.
At a master calendar hearing in the immigration court on
May 12, 2010, Dakura conceded the allegations made in the notice
to appear. In August 2010, while his removal proceedings were
4
pending, Dakura married a woman who was already a United States
citizen. On October 5, 2010, Dakura’s wife petitioned the DHS
for recognition of their marriage, seeking a visa for Dakura.
Upon approval of the visa petition, Dakura applied to the DHS
for adjustment of his status to that of a lawful permanent
resident (the “adjustment application”). On March 26, 2012, an
evidentiary hearing was conducted on the adjustment application.
B.
By oral decision of March 26, 2012, the Immigration Judge
deemed Dakura removable and denied his adjustment application
(the “IJ Decision”). 3 In so ruling, the IJ initially noted that
Dakura “admitted that he did not remain in status” under his F-1
student visa and conceded that he was removable. IJ Decision 2.
Those admissions satisfied the DHS’s burden of showing by clear
and convincing evidence that Dakura was removable. Id. Turning
to the adjustment application, the IJ found that Dakura’s
testimony was “basically” credible. Id. at 4. 4 Nonetheless, the
3
The IJ Decision is found at J.A. 14-19.
4
The IJ Decision suggested that Dakura’s testimony was not
entirely credible with respect to one factual point. Dakura
testified that Habib, through Assamoir, had given Dakura
permission to use Habib’s identity in applying for work and
verifying his employment eligibility. See J.A. 90-91. The DHS,
however, presented contradictory evidence by way of Habib’s
victim statement to the police in connection with Dakura’s
criminal charges. Id. at 99. Therein, Habib averred that he
“never gave [Dakura] permission” to use his identity. Id.
5
IJ determined that Dakura was inadmissible because he had
falsely represented himself to be a United States citizen on
Forms I-9 in seeking employment. In so concluding, the IJ
relied on the provisions of the false claim bar, which renders
inadmissible
[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 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). The IJ then found that
Dakura’s “purpose” in representing himself as a citizen on the
Forms I-9 was “obviously . . . to obtain employment.” IJ
Decision 4. That purpose, the IJ reasoned, “constitute[d]
applying for an immigration benefit,” and so Dakura was
inadmissible and thus ineligible for an adjustment of status.
Id. Accordingly, the IJ ordered Dakura removed to Ghana. On
April 9, 2012, Dakura appealed the IJ Decision to the BIA.
The BIA Decision of September 13, 2013, affirmed the IJ
Decision in all respects. First, the BIA ruled that the IJ had
correctly determined that Dakura was inadmissible under the
false claim bar, reasoning that “an alien who falsely claims
United States citizenship on a Form I-9 is seeking a ‘benefit’
under the [INA].” BIA Decision 2. Second, the BIA accorded no
weight to Dakura’s position that he had completed the Forms I-9
under duress, observing that Dakura “submitted no evidence in
6
support of this claim.” Id. Third, the BIA reasoned that the
fact that Dakura was not convicted of identity theft was not
pertinent, because “a conviction is unnecessary to support a
finding of inadmissibility” under the INA. Id. Thus, the BIA
affirmed the IJ Decision and rejected Dakura’s appeal.
Dakura has petitioned for our review of the BIA Decision.
We possess jurisdiction pursuant to 8 U.S.C. § 1252.
II.
Where, as here, the BIA has adopted an IJ decision and
issued its own decision, we review both rulings. See Jian Tao
Lin v. Holder, 611 F.3d 228, 235 (4th Cir. 2010). The BIA’s
determination that “an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to
law.” 8 U.S.C. § 1252(b)(4)(C). We review legal issues de
novo. See Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011).
We review an IJ’s findings of fact for substantial evidence,
accepting such findings as conclusive unless a reasonable
adjudicator would have been compelled to reach a different
conclusion. See id.III.
By his petition for review, Dakura contends that the BIA
Decision erred as a matter of law in ruling that an alien who
7
falsely claims citizenship on a Form I-9 is inadmissible under
the false claim bar. While recognizing that the legal
authorities — including decisions of our sister circuits and our
own unpublished decisions — cut strongly against that argument,
Dakura maintains that private employment is not an immigration
benefit within the meaning of the false claim bar. Dakura
alternatively urges that the false claim bar is not applicable
in these proceedings because his use of other identities did not
constitute direct claims of citizenship, he did not obtain an
immigration benefit, and all misrepresentations about his
identity were made under duress.
A.
The central question before us is whether an alien who
falsely claims citizenship on a Form I-9 is thereby rendered
inadmissible pursuant to the false claim bar. As explained
below, we are satisfied to answer that question in the
affirmative. 5
The INA requires that, in order for an alien to adjust his
status to that of a lawful permanent resident, he must be
admissible. See 8 U.S.C. § 1255(a). The alien bears the burden
5
In unpublished decisions, we have similarly ruled that an
alien who falsely claims citizenship on a Form I-9 is
inadmissible under the false claim bar. See Davis v. Holder,
472 F. App’x 234 (4th Cir. 2012); Ramsoondar v. Holder, 353 F.
App’x 845 (4th Cir. 2009).
8
of proving that he “clearly and beyond doubt . . . is not
inadmissible under [8 U.S.C. §] 1182.” Id. § 1229a(c)(2)(A);
see also Hashmi v. Mukasey, 533 F.3d 700, 702 (8th Cir. 2008)
(noting that an alien applying for adjustment of status “is in a
similar position to an alien seeking entry into the United
States,” and therefore shoulders the burden of establishing
admissibility). Section 1182 identifies several bars under
which aliens are legally “inadmissible” and thus “ineligible to
be admitted to the United States,” including situations
implicating the false claim bar, where an alien makes a false
claim of United States citizenship.
As relevant here, the false claim bar provides that an
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 is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). 6
If an alien is inadmissible under the foregoing provision, a
discretionary waiver of admissibility is unavailable from the
Attorney General. See Sandoval v. Holder, 641 F.3d 982, 986
6
Although not applicable here, a statutory exception to the
false claim bar applies to permanent residents who are minor
children of United States citizens, and who reasonably believed
that they possessed citizenship when they made false
representations with respect thereto. See 8 U.S.C.
§ 1182(a)(6)(C)(ii)(II).
9
(8th Cir. 2011) (“Unlike other kinds of misrepresentations, this
ground of inadmissibility is not waivable, and it triggers a
permanent bar to the alien’s admissibility into the country.”).
In addition to the false claim bar, the INA contains a mirror
provision, found at 8 U.S.C. § 1227(a)(3)(D)(i), which
establishes an identical legal standard that renders an alien
deportable — rather than inadmissible — for falsely claiming
citizenship in the United States. 7 The courts have interpreted
the scope of those provisions in tandem, relying on
interpretations of one provision to construe the other. See,
e.g., Ferrans v. Holder, 612 F.3d 528, 531 (6th Cir. 2010).
The false claim bar and § 1227(a)(3)(D)(i) have been
applied to render aliens inadmissible or deportable in various
contexts, such as where the alien had made oral
misrepresentations to border officials in order to enter the
7
The INA uses the terms “inadmissible” and “deportable” to
differentiate between the admission status of aliens who are
subject to removal proceedings. An alien applying for admission
must prove that he is not “inadmissible.” See 8 U.S.C.
§ 1255(a). An alien previously admitted to the United States
may be ordered removed upon a determination that he is
“deportable.” Id. § 1227. Although the false claim bar and
§ 1227(a)(3)(D)(i) contain identical legal standards, they
differ with respect to the burden of proof. An alien bears the
burden of proving admissibility, and therefore must prove
“clearly and beyond doubt” that the false claim bar does not
apply. Id. § 1229a(c)(2)(A). The burden of proof under
§ 1227(a)(3)(D)(i) falls on the DHS, which must establish, by
clear and convincing evidence, that the alien is deportable.
Id. § 1229a(c)(3)(A).
10
United States, see Dugboe v. Holder, 644 F.3d 462, 470 (6th Cir.
2011), or where the alien made misrepresentations on a passport
application, see Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir.
2006). Not all false claims of citizenship, however, implicate
either the false claim bar or § 1227(a)(3)(D)(i). The courts
have limited the applicability of those statutory bars by
discerning whether the false claims of citizenship were made for
a “purpose or benefit” under the INA or other federal or state
law. Thus, the Third Circuit determined that the false claim
bar does not apply if an alien falsely claimed to be a citizen
upon arrest, and if such claim was for the purpose of minimizing
the risk that the police would report him to the DHS. See
Castro v. Attorney Gen., 671 F.3d 356, 370 (3d Cir. 2012).
Relatedly, the Sixth Circuit concluded that an alien’s false
claim of citizenship on a small business loan application did
not render him deportable under § 1227(a)(3)(D)(i), in that his
immigration status did not impact whether he obtained a loan.
See Hassan v. Holder, 604 F.3d 915, 928-29 (6th Cir. 2010).
Several of our sister courts of appeals have directly
considered the issue we address today, and each has concluded
that falsely claiming United States citizenship on a Form I-9,
in seeking private employment, renders the alien making the
false claim inadmissible under the false claim bar or deportable
under § 1227(a)(3)(D)(i). See Crocock v. Holder, 670 F.3d 400,
11
403 (2d Cir. 2012) (concluding that false claim of citizenship
made in seeking private employment renders alien inadmissible or
deportable); Ferrans, 612 F.3d at 532 (same); Rodriguez v.
Mukasey, 519 F.3d 773, 777 (8th Cir. 2008) (same); Kechkar v.
Gonzales, 500 F.3d 1080, 1083-84 (10th Cir. 2007) (same);
Theodros v. Gonzales, 490 F.3d 396, 402 (5th Cir. 2007) (same).
Moreover, the Third Circuit — ruling on related issues — has
indicated it would adopt the same position. See Castro, 671
F.3d at 369 (“There is no question that [the false claim bar]
encompasses false claims of U.S. citizenship made during the
employment eligibility verification process.”).
In so ruling, each of those courts of appeals has primarily
relied on the texts of the false claim bar and
§ 1227(a)(3)(D)(i). For example, the Eighth Circuit examined
the language of the false claim bar and determined that “the
explicit reference to § 1324a . . . indicates that private
employment is a ‘purpose or benefit’ of the [INA].” Rodriguez,
519 F.3d at 777. That result was compelled, as the court
explained, “because § 1324a prohibits all employers from
knowingly employing unauthorized aliens, and a Form I-9 assists
an employer in complying with this requirement and the DHS in
enforcing compliance.” Id.
We are satisfied with the persuasive reasoning set forth in
Rodriguez, and agree that the false claim bar’s reference to
12
§ 1324a compels the conclusion that an alien who falsely
represents his citizenship on a Form I-9 is inadmissible. 8
Section 1324a(a)(1)(A) makes it “unlawful for a person or other
entity . . . to hire . . . an alien knowing the alien is an
unauthorized alien.” An “unauthorized alien” is an alien not
“lawfully admitted for permanent residence” or otherwise
permitted by the Attorney General to be employed. 8 U.S.C.
§ 1324a(h)(3).
Section 1324a(b) also requires that prospective employers
verify a prospective employee’s eligibility for employment. The
Form I-9 was created for that very purpose by the immigration
authorities, pursuant to the IRCA. See 8 C.F.R. § 274a.2(a)(2).
In order to properly complete a Form I-9, a prospective employer
must physically examine the prospective employee’s
documentation, verifying his identity and eligibility to work.
Id. § 274a.2(b)(1)(ii)(A). Both the prospective employee and
the prospective employer must then attest, under penalty of
perjury, that the prospective employee is not an unauthorized
alien. See 8 U.S.C. § 1324a(b)(1)(A); 8 C.F.R. § 274a.2(a)(3).
8
The false claim bar was enacted in 1996 as part of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, div. C, § 344(a), 110 Stat. 3009-546,
3009-637. The bar references § 1324a, which was enacted ten
years earlier by the Immigration Reform and Control Act of 1986
(the “IRCA”), Pub. L. No. 99-603, § 101(a)(1), 100 Stat. 3359,
3360-72.
13
The Form I-9 therefore constitutes an important component
of the INA’s regulatory scheme to prevent unauthorized aliens
from obtaining private employment, which is prohibited by
§ 1324a. As a result, the reference in the false claim bar to
the provisions of § 1324a leaves no room for doubt that private
employment constitutes a “benefit” under the INA. We thus
recognize that, pursuant to the false claim bar, an alien who
falsely claims to be a United States citizen on a Form I-9 in
seeking private employment is inadmissible as a matter of law.
B.
Having resolved the foregoing legal question, we turn to
the merits of Dakura’s petition for review. In executing each
Form I-9 — that is, when seeking employment at McDonald’s and
Target — Dakura checked the box attesting that he was a “citizen
or national of the United States.” J.A. 101. The IJ Decision
found, however, that Dakura had specifically “claim[ed] to be a
United States citizen.” IJ Decision 4. That finding is amply
supported by Dakura’s testimony, where he confirmed that, in
completing the Forms I-9, he was representing himself to be a
citizen — rather than a national. And Dakura has not disputed
that finding to either the BIA or in this petition. Thus, the
evidence confirms the IJ’s finding, as affirmed by the BIA, that
Dakura falsely represented himself to be a United States citizen
for the purpose of seeking the benefit of private employment.
14
Dakura makes three other contentions with respect to why
the false claim bar does not render him inadmissible. First,
Dakura asserts that his “use of another’s identity was not a
statement by him that he was a U.S. citizen.” Br. of Pet’r 7.
Nevertheless, Dakura’s claims to McDonald’s and Target that he
was actually Habib and Soehedey — both United States citizens —
does not remove him from the purview of the false claim bar.
The salient fact is that Dakura attested on each of the Forms I-
9 that he — the person seeking employment — was a United States
citizen. See Rodriguez, 519 F.3d at 774, 778 (affirming BIA
determination that alien was inadmissible under the false claim
bar because he claimed to be another person who held
citizenship); see also Valadez-Munoz v. Holder, 623 F.3d 1304,
1308-09 (9th Cir. 2010) (same).
Second, Dakura contends that the false claim bar does not
apply to him because he did not receive any benefit as a result
of his misrepresentations. Rather, Dakura maintains, Assamoir
received all the benefits by keeping Dakura’s paychecks. The
false claim bar focuses on the reason that the false claim of
citizenship was made, however, not the effect of the claim.
Dakura’s goal in claiming to be a citizen was to obtain
employment. As he acknowledged at the IJ hearing, Dakura
entered into the agreement with Assamoir to save money and
return to college. Thus, Dakura falsely represented himself as
15
a United States citizen in seeking to gain employment, which
constitutes an immigration benefit.
Third, Dakura asserts that he acted under duress when he
misrepresented himself as a United States citizen. But he has
presented no supporting authority for the proposition that an
alien who makes a false claim of citizenship under duress is not
legally inadmissible. Importantly, as the BIA emphasized,
Dakura did not submit any evidence showing that his claims of
citizenship were made under duress.
In these circumstances, we are satisfied that Dakura
falsely claimed to be a United States citizen on Forms I-9 in
seeking the immigration benefit of private employment. Dakura
is therefore inadmissible as a matter of law under the false
claim bar, and the BIA Decision correctly affirmed the IJ
Decision’s ruling that Dakura is not eligible for adjustment of
status.
IV.
Pursuant to the foregoing, we deny Dakura’s petition for
review.
PETITION FOR REVIEW DENIED
16