Jesus Vega v. Loretta Lynch , 664 F. App'x 554 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0643n.06
No. 16-3313
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 01, 2016
DEBORAH S. HUNT, Clerk
JESUS DE REFUGIO VEGA, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF A FINAL ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
LORETTA E. LYNCH, United States Attorney )
General )
) OPINION
Respondent. )
)
Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.*
KAREN NELSON MOORE, Circuit Judge. In this immigration case, Petitioner Jesus
de Refugio Vega seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming
an immigration judge’s (“IJ”) order of removal. Vega argues that, contrary to the IJ’s findings,
he made no misrepresentations regarding his citizenship and that, at a minimum, he did not make
misrepresentations for any purpose or benefit that would constitute grounds for removal.
Because the BIA’s analysis is incomplete under its precedent, we GRANT Vega’s petition for
review. Accordingly, we VACATE the BIA’s decision and REMAND the case for further
proceedings consistent with this opinion.
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 16-3313
Jesus de Refugio Vega v. Lynch
I. BACKGROUND
Vega is a native and citizen of Mexico, A.R. at 219 (Form I-485 at 1); id. at 333 (Notice
to Appear at 3), who entered the United States in June or July 2001 from Matamoros, Mexico, id.
at 86 (June 3, 2015 Hr’g at 13). When he entered the United States, he did not possess or present
a nonimmigrant visa, border crossing card, or other document valid for his admission into the
country. Id. at 238 (Additional Charges of Inadmissibility/Deportability). He has a wife and two
children, all of whom are citizens of the United States. Id. at 106 (July 15, 2015 Hr’g at 31).
On February 9, 2015, following Vega’s conviction for misuse of a Social Security
number and aggravated identity theft, id. at 261 (Apr. 18, 2014 Judgment at 1), the Government
served Vega with a notice to appear, claiming that he was removable from the United States. Id.
at 333 (Notice to Appear at 3). The IJ issued an initial order finding Vega not removable under
the original charges, id. at 283 (July 22, 2015 Order at 1), after which the Government brought
additional charges against Vega, id. at 238–39 (July 24, 2015 Form I-261); id. at 231–32 (Aug. 5,
2015 Form I-261). First, the Government charged that Vega was removable because he entered
the United States without proper documentation in violation of 8 U.S.C. § 1227(a)(1)(A), id. at
238 (July 24, 2015 Form I-261), and because he was convicted of a crime involving moral
turpitude in violation of 8 U.S.C. § 1227(a)(2)(A)(i), id. at 231 (Aug. 5, 2015 Form I-261). Vega
conceded that he was removable under these sections.1 Id. at 211–12 (Resp’t’s Written
1
It is far from clear whether Vega, who appears to have used a false birth certificate and
Social Security number so that he could hold a job, see A.R. at 164 (Oct. 7, 2015 Hr’g at 86),
was actually convicted of a crime involving moral turpitude. Although we have previously held
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Pleadings at 2–3). In addition, the Government charged that Vega was removable because he
falsely represented himself to be a citizen of the United States for the purpose of obtaining an
Ohio driver’s license in violation of 8 U.S.C. § 1227(a)(3)(D)(i). A.R. at 231 (Aug. 5, 2015
Form I-261). Vega denied that he was removable under this section.2 Id. at 212 (Resp’t’s
Written Pleadings at 3).
To support its charge of false representation, the Government put forth various
documents that Vega submitted to the Ohio Bureau of Motor Vehicles (“BMV”) to obtain a
driver’s license. The first document, which was for a driver’s license renewal, is dated both July
14, 2012 and July 14, 2013 and is signed “Abelardo Buenrostro” below the words “By signing
below I agree to and attest that all the above is true and accurate.” Id. at 233–34 (Driver’s
License Application). Near the top of the document are the words, “U.S. Citizen: YES.” Id. at
that similar conduct is a crime of moral turpitude, see Serrato-Soto v. Holder, 570 F.3d 686, 691
(6th Cir. 2009), forthcoming reconsideration by the BIA may produce a contrary result. See
Arias v. Lynch, 834 F.3d 823, 830 (7th Cir. 2016) (instructing the BIA to determine the
“appropriate legal framework for judging moral turpitude”); id. (Posner, J., concurring) (“It is
preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a
part of American law.”); see also Ruiz-Lopez v. Holder, 682 F.3d 513, 518 (6th Cir. 2012)
(observing that the inherent ambiguity of “moral turpitude” and “the BIA’s method of case-by-
case adjudication[] necessarily involves a somewhat unsettled issue”).
2
Vega’s concession of removability under § 1227(a)(1)(A) and § 1227(a)(2)(A)(i) would
not preclude him from seeking an Adjustment of Status and Waiver of Grounds for
Admissibility. In fact, Vega submitted a Form I-485 and Form I-601 requesting such relief.
However, Vega would be permanently barred from reentering the United States if he is found
removable under § 1227(a)(3)(D)(i). See 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2016) (“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.”). Therefore, as the Government points out, there is a
live case or controversy regarding Vega’s § 1227(a)(3)(D)(i) charge.
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233 (Driver’s License Application). The second document, which was for a driver’s license
duplicate, is dated August 11, 2012 and is signed “Abelardo B.” below the words “By signing
below I agree to and attest that all the above is true and accurate.” Id. at 235–36 (Driver’s
License Application). Once again, near the top of the document are the words, “U.S. Citizen:
YES.” Id. at 235 (Driver’s License Application). Another page, which contains the same
application and agency numbers as the duplicate driver’s license application, is signed “Abelardo
B.” below the words “WARNING: IT IS A CRIMINAL OFFENSE TO GIVE FALSE
INFORMATION ON THIS APPLICATION. Under penalty of law, I affirm that the above
information is true to the best of my knowledge and belief.” Id. at 237 (Driver’s License
Application). A box next to “US CITIZEN” is checked, whereas the boxes next to
“PERMANENT RESIDENT” and “TEMPORARY RESIDENT” are not checked. Id. (Driver’s
License Application). Various items of biographical information, including the applicant’s name
(Abelardo Buenrostro), hair color (brown), and eye color (brown), are handwritten on the form.
Id. (Driver’s License Application).
Vega testified at a hearing before the IJ that, after he entered the United States, his
brother gave him a birth certificate with the name “Abelardo Buenrostro” along with a Social
Security number. Id. at 163 (Oct. 7, 2015 Hr’g at 85). Vega explained that he used that birth
certificate at the BMV in 2002, 2006, and 2011 to obtain proof of identification for work. Id. at
164–66 (Oct. 7, 2015 Hr’g at 86–88). He stated that in 2002, when he first used the birth
certificate to obtain an Ohio identification card, he could not read or write in English. Id. at 168
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(Oct. 7, 2015 Hr’g at 90). When asked whether he ever learned to read or write in English, Vega
responded through an interpreter, “not fully” but that “lately, since I’ve been in jail, I’ve been
reading and writing and learning how to read and write.” Id. Vega was arrested in 2013. Id. at
166 (Oct. 7, 2015 Hr’g at 88). Later in his testimony, Vega stated that as of August 11, 2012, he
could read and write some English, but “not perfectly”—“Just the basic information, name and
address and just normal things.” Id. at 175 (Oct. 7, 2015 Hr’g at 97).
In addition, Vega confirmed that he signed the various driver’s license applications, but
he testified that he did not read the application before signing and that he was unaware that it
stated that he was a U.S. citizen. Id. at 171–73 (Oct. 7, 2015 Hr’g at 93–95). He also testified
that on one page, he handwrote his address, the social security number, and his birthdate, but that
he did not check the other boxes, including the one marked “US CITIZEN.” Id. at 175 (Oct. 7,
2015 Hr’g at 97). He testified that he could read and write “basic information” in English, such
as names, addresses, colors, and “normal things.” Id. at 175–76 (Oct. 7, 2015 Hr’g at 97–98).
Finally, he testified that he could read the term “US CITIZEN,” but that he “didn’t know what it
meant.” Id. at 177 (Oct. 7, 2015 Hr’g at 99).
Ultimately, the IJ held that Vega was removable for falsely representing himself to be a
citizen of the United States for the purpose of obtaining a driver’s license when he applied for a
driver’s license on July 14, 2012 and on August 11, 2012, thereby violating 8 U.S.C.
§ 1227(a)(3)(D). A.R. at 67–68 (IJ Mem. & Order at 9–10). In reaching this decision, the IJ
found that Vega “did not testify credibly overall.” Id. at 66 (IJ Mem. & Order at 8). The IJ also
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reasoned that Vega’s “immigration status would clearly have a direct effect on his driver’s
license application” and that he “could not have obtained a driver’s license if he accurately
conveyed his immigration status.” Id. at 68 (IJ Mem. & Order at 10).
The BIA dismissed Vega’s appeal of the IJ’s order. Id. at 5 (BIA Dec. at 3). Observing
that the IJ’s credibility determination was not clearly erroneous, the BIA held that the IJ “did not
clearly err in finding that [Vega] falsely represented himself to be a United States citizen on his
Ohio driver license applications.” Id. at 4 (BIA Dec. at 2). Turning “to the separate legal
question of whether that representation was made ‘for any purpose or benefit under . . . State
law,’” id. (quoting 8 U.S.C. § 1227(a)(3)(D)(i)), the BIA further reasoned that Vega’s
“immigration status was relevant to his eligibility for an Ohio driver license,” id., and that he
“thus claimed United States citizenship for the ‘purpose’ of demonstrating his Ohio ‘resident’
status, a prerequisite to his receiving a ‘benefit’ under Ohio law—i.e., a driver license,” id. at 5
(BIA Dec. at 3) (quoting 8 U.S.C. § 1227(a)(3)(D)(i); Ohio Admin. Code 4501:1-1-35(A)
(2016)). The BIA stated, “That is sufficient to render him removable under
[§ 1227(a)(3)(D)(i)].” Id. Finally, the BIA held that the IJ “committed no clear error” in finding
that “[Vega’s] purpose in claiming United States citizenship was to procure . . . a benefit [under
state law].” Id. Vega has petitioned for review of the BIA’s decision. We have jurisdiction over
his petition pursuant to 8 U.S.C. § 1252(a)(5).
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II. DISCUSSION
Vega has raised two issues in his petition: first, that he did not falsely represent his
citizenship, and second, in the alternative, that any such false representations were not made for
an impermissible purpose or benefit. See Pet’r’s Br. at 16. For the reasons that follow, the
BIA’s treatment of these issues is incomplete following Richmond, 26 I. & N. Dec. 779 (2016),
and we therefore remand the case.
A. Standard of Review
“Where the BIA reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision
as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). If the
BIA adopts the IJ’s reasoning, we also review the IJ’s decision. Id. “Questions of law are
reviewed de novo, but substantial deference is given to the BIA’s interpretation of the INA and
accompanying regulations.” Id. We review factual findings made by the BIA and IJ under the
substantial-evidence standard: “the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” See 8 U.S.C.
§ 1252(b)(4)(B) (2012); Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (“Courts have found
that § 1252(b)(4)(B) basically codifies the Supreme Court’s substantial evidence standard.”).
However, “[w]hen the BIA does not fully consider an issue . . . a reviewing court ‘is not
generally empowered to conduct a de novo inquiry into the matter being reviewed.’ Rather, ‘the
proper course, except in rare circumstances, is to remand to the [BIA] for additional investigation
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or explanation.’” Bi Xia Qu v. Holder, 618 F.3d 602, 609 (6th Cir. 2010) (quoting Gonzales v.
Thomas, 547 U.S. 183, 186 (2006)); Immigration & Naturalization Serv. v. Orlando Ventura,
537 U.S. 12, 16–17 (2002) (“This principle has obvious importance in the immigration
context.”); see also Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 116–17 (2d Cir. 2006)
(noting six reasons warranting remand to the BIA).
B. Applicable Law
The Government sought to remove Vega pursuant to, among other sections of the
Immigration and Nationality Act, 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 Federal or State law is
deportable.” The BIA’s standard of review regarding the IJ’s factual findings, including
credibility, is clear error. See 8 C.F.R. § 1003.1(d)(3)(i) (2016). The BIA reviews de novo
questions of law, discretion, and judgment. Id. § 1003.1(d)(3)(ii).
C. False Representation of Citizenship for any Purpose or Benefit under any
Federal or State Law
Vega argues that he did not make false representations regarding his citizenship and that,
in the alternative, he did not do so “for a ‘benefit’ as described by Sixth Circuit precedent.” See
Pet’r’s Br. at 16. The Government argues that “no record evidence compels reversal of the
agency’s determination that [Vega] is removable under 8 U.S.C. § 1227(a)(3)(D).” Resp’t’s Br.
at 18. In support, it argues that the BIA’s decision comports with a more recent decision,
Richmond, 26 I. & N. Dec. at 781–82, that “interpret[ed] the meaning and scope of the phrase
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‘for the purpose or benefit under this Act . . . or any other Federal or State law’ under 8 U.S.C.
§ 1182(a)(6)(C)(ii)(I).” See Resp’t’s Br. at 22 (citation omitted). In his reply brief, Vega
“request[s] his case be remanded to the agency to apply the new frame work [sic] delineated in
RICHMOND.” Reply Br. at 4. Because Richmond set forth a new standard that affects our
review, we agree that this case should be remanded so that the BIA can more fully consider the
issues that Vega has raised in his petition.
Richmond, which was issued after Vega filed his opening brief and before the
Government filed its brief, set forth a methodology for “purpose or benefit” determinations. The
BIA observed that there are three components to § 1182(a)(6)(C)(ii)(I), which mirrors the
language of 8 U.S.C. § 1227(a)(3)(D)(i): “An alien is inadmissible under this provision if he or
she: (1) ‘falsely represents, or has falsely represented, himself or herself to be a citizen of the
United States’; (2) ‘for any purpose or benefit’; (3) ‘under th[e] Act . . . or any other Federal or
State law.’” Richmond, 26 I. & N. Dec. at 783 (citation omitted). In addition, “the scope of
[§ 1182(a)(6)(C)(ii)(I)] is limited to false claims to United States citizenship that meet two
requirements. First, the Immigration Judge must find direct or circumstantial evidence
demonstrating that the false claim was made with the subjective intent of achieving a purpose or
obtaining a benefit under the Act or any other Federal or State law. Second, the presence of a
purpose or benefit must be determined objectively—that is, the United States citizenship must
actually affect or matter to the purpose or benefit sought.” Id. at 786–87. Significantly, this
partition between subjective intent and objective purpose or benefit comports with the text of
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§ 1182(a)(6)(C)(ii)(I) and our prior case law, see, e.g., Hassan v. Holder, 604 F.3d 915, 928–29
(6th Cir. 2010) (holding that there was no “purpose or benefit” because a misrepresentation of
citizenship “would have no effect on the loan” and because the petitioner “did not subjectively
believe that his immigration status affected his application”).
When the BIA has not fully considered a part of the analysis, we are “not generally
empowered to conduct a de novo inquiry into” it. See Bi Xia Qu, 618 F.3d at 609 (quoting
Thomas, 547 U.S. at 186). The BIA did not have the benefit of the Richmond analysis in this
case. Instead of addressing each of the components and requirements set forth in Richmond, the
BIA addressed the general questions of whether the IJ “clearly err[ed] in finding that [Vega]
falsely represented himself to be a United States citizen on his Ohio driver license applications”
and “whether that representation was made ‘for any purpose or benefit under . . . State law.’”
A.R. at 4 (BIA Dec. at 2) (citation omitted). In addition, both parties have cited Richmond to
support their respective positions that the BIA’s decision should be affirmed or reversed. See
Resp’t’s Br. at 21–23, 26; Reply Br. at 4–10. To weigh in on their arguments before the BIA has
had an opportunity to address them would “intrude upon the domain which Congress has
exclusively entrusted to an administrative agency.” See Orlando Ventura, 537 U.S. at 16
(internal quotation marks omitted). In light of the Richmond standard, which we would have to
apply for the first time if we addressed the merits of Vega’s petition, “the proper course . . . is to
remand to the [BIA] for additional investigation or explanation.” See Bi Xia Qu, 618 F.3d at 609
(quoting Thomas, 547 U.S. at 186).
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Of course, it may be that Richmond is inapplicable in this case. As previously mentioned,
and as the BIA itself observed, § 1182(a)(6)(C)(ii)(I) “mirrors” the language of
§ 1227(a)(3)(D)(i). Richmond, 26 I. & N. Dec. at 786 n.7. Nevertheless, whereas
§ 1182(a)(6)(C)(ii)(I) renders an alien inadmissible, § 1227(a)(3)(D)(i) renders an alien
deportable (i.e., removable). The legislative history of these sections, among other canons of
statutory construction, may be sufficiently different that a different analysis is appropriate.
Therefore, another issue for the BIA to consider is whether the Richmond analysis applies to
§ 1227(a)(3)(D)(i) cases.
III. CONCLUSION
For the foregoing reasons, we GRANT Vega’s petition for review, VACATE the BIA’s
decision, and REMAND the case for further proceedings consistent with this opinion.
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