Cyprian Mayemba v. Eric Holder, Jr. , 776 F.3d 542 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1558
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Cyprian Mayemba
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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No. 13-2469
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Cyprian Mayemba
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 12, 2014
Filed: January 13, 2015
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Before BYE, SHEPHERD, and KELLY, Circuit Judges.
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BYE, Circuit Judge.
Cyprian Mayemba petitions for review of the decision of the Board of
Immigration Appeals ("BIA") finding him removable and inadmissible based on his
representation of United States citizenship in a Form I-9 employment verification
form and the BIA's denial of his motion for reconsideration. We deny the
consolidated petitions for review.
Mayemba is a native and citizen of Tanzania. He came to the United States on
January 6, 2001, under an F-1 nonimmigrant, student visa to pursue his education at
Wichita State University in Wichita, Kansas. Unfortunately, after the unexpected
death of his father, Mayemba was unable to afford enrolling at Wichita State. He
remained in the country, however, and, on April 13, 2004, he married NaCeea
Johnson (now Mayemba). Soon after, they had a child, and Mrs. Mayemba filed a
family-based, immediate-relative I-130 visa petition on behalf of Mayemba.
Mayemba simultaneously filed an I-485 application to adjust his status. The I-130
petition was approved; however, United States Citizenship and Immigration Services
denied the I-485 application, finding Mayemba to be inadmissable based on a prior
false claim of United States citizenship in a June 2001 application for admission to
a technical college.
On June 1, 2009, the Department of Homeland Security ("DHS") issued a
Notice to Appear to Mayemba, charging him with removability under 8 U.S.C.
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§§ 1227(a)(3)(D) and 1227(a)(1)(C)(i). As amended, the Notice to Appear alleged
Mayemba:
1) was not a citizen or national of the United States;
2) was a native and citizen of Tanzania;
3) was admitted to the United States on or about January 6, 2001, as an
F-1 student;
4) admitted to a violation of his nonimmigrant status by working without
authorization;
5) was employed for wages at Schowalter Villa in Hesston, Kansas
without proper authorization; and
6) represented himself to be a United States citizen on or about June 3,
2003, to gain employment at Schowalter Villa in Hesston, Kansas.
In the removal proceeding, Mayemba admitted allegations 1, 2, 3, and 5 but
denied allegations 4 and 6. He conceded removability under § 1227(a)(1)(C)(i) but
denied the false-claim charge under § 1227(a)(3)(D). Additionally, he indicated his
intent to seek adjustment of status based on the approved I-130 petition.
After a hearing on the contested issues, on February 18, 2011, the immigration
judge ("IJ") made an oral decision sustaining the charges of removability and denying
Mayemba's application for adjustment of status. The IJ overruled Mayemba's
objections to the admission of the Form I-9, rejected Mayemba's claim he had been
told to mark the checkbox on the Form I-9 and application for admission into the
technical college, found the DHS met its burden of demonstrating Mayemba was
removable, and found Mayemba failed to meet his burden of showing he was
admissible.
Mayemba then petitioned for review to this court and concurrently filed a
motion for reconsideration with the BIA, which was denied on June 17, 2013. In
denying Mayemba's motion, the BIA noted Mayemba did not contest the charge of
removability under § 1227(a)(1)(C)(i), reaffirmed its conclusion the Form I-9 was
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admissible in the proceeding, and affirmed its decision Mayemba was removable
under § 1227(a)(3)(D). Mayemba then petitioned for review of the BIA's decision on
his motion for reconsideration, and the two cases were consolidated.
"We review the BIA's decision, as it is the final agency decision; however, to
the extent that the BIA adopted the findings or the reasoning of the IJ, we also review
the IJ's decision as part of the final agency decision." Davila-Mejia v. Mukasey, 531
F.3d 624, 627 (8th Cir. 2008). The BIA's legal determinations are reviewed de novo,
but the Court accords "'substantial deference to the BIA's interpretation of the statutes
and regulations it administers.'" Spacek v. Holder, 688 F.3d 536, 538 (8th Cir. 2012)
(quoting Davila-Mejia, 531 F.3d at 627).
"It is well settled that 'an immigration judge is in the best position to make
credibility findings because he or she sees the witness as the testimony is given.'"
Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005) (quoting Mayo v. Ashcroft, 317
F.3d 867, 871 (8th Cir. 2003)). Thus, "[t]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary." Goswell-Renner v. Holder, 762 F.3d 696, 699 (8th Cir. 2014) (citing 8
U.S.C. § 1252(b)(4)(B) and INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
On appeal, Mayemba argues (1) as a matter of law a representation in a Form
I-9 cannot be the basis for a false claim of United States citizenship in a removal
proceeding; and (2) even if it can, Mayemba's disjunctive representation of "citizen
or national" cannot be a false claim of United States citizenship.
With regard to the first issue, Mayemba asserts, based on the statutory language
and legislative history, Form I-9 has a very limited purpose such that it may not be
used in removal proceedings. Distilled to its core, the argument centers on whether
the statute's reference to "Act" refers to the INA or the Immigration Reform and
Control Act of 1986 ("IRCA"). Mayemba believes it refers to the IRCA. We very
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recently rejected this exact argument in a similar case argued by Mayemba's attorney.
See Downs v. Holder, 758 F.3d 994, 997 (8th Cir. 2014) (holding that because
"Section 274A(b)(5) is a section of the INA, the plain and unambiguous meaning of
the reference to 'this Act' is to the INA" and that "INA § 274A(b)(5) allows the
admission of I-9 forms into evidence in removal proceedings"). Mayemba fails to
distinguish Downs in any way, and we continue to believe its reasoning is sound.
Accordingly, we again reject this argument.
As to Mayemba's second argument, although the government addressed the
issue at oral argument, Mayemba did not pursue it. Because we cannot be sure
Mayemba has abandoned the issue, we construe his written submission as an
argument that the BIA erred in finding him inadmissible and briefly discuss it.1
An alien is inadmissible if he "falsely represents, or has falsely represented,
himself . . . to be a citizen of the United States for any purpose or benefit under [the
Act]." See 8 U.S.C. § 1182(a)(6)(C)(ii). With respect to his adjustment of status and
showing of admissibility, Mayemba had the burden of showing clearly and beyond
a doubt he was admissible. See Hashmi v. Mukasey, 533 F.3d 700, 704 (8th Cir.
2008).
As a matter of law, we agree with Mayemba the mere fact he checked the
disjunctive citizenship box on the Form I-9 alone cannot be sufficient to demonstrate
a false claim of United States citizenship. See Rodriguez v. Mukasey, 519 F.3d 773,
776-77 (8th Cir. 2008) (explaining that by checking the box, a "person ambiguously
represents that he is either a citizen or a national" and that "[a] false representation
by an alien that he is a national of the United States would not make him inadmissible
. . . ."); Hashmi, 533 F.3d at 704 (reiterating it is possible "an alien who has checked
the 'citizen or national' box has not represented himself to be a citizen"). However,
1
Because Mayemba conceded removability under § 1227(a)(1)(C)(i), and has
not challenged it on appeal, we need not address it.
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additional evidence may "support a finding that the alien marked the 'citizen or
national of the United States' box on a Form I-9 with the purpose of representing
himself as a citizen, not a national." Rodriguez, 519 F.3d at 777; see also Hashmi,
533 F.3d at 704 (explaining that "[i]n any given case, the significance of the form
may depend on the credibility of the alien's testimony concerning his intent in
checking the box").
In this case, additional evidence supports the BIA's finding Mayemba failed to
meet his burden of showing he did not make a false claim of United States
citizenship. For example: 1) Mayemba had unambiguously represented himself to
be a United States citizen in the Wichita technical college application for admission;
2) the application for admission specifically directed Mayemba to stop the application
and contact the admissions office if he was not a United States citizen–something he
did not do; 3) he testified at the time he filled out the application he knew he was not
a United States citizen;2 4) Mayemba testified he knew a person born in the United
States is a United States citizen; 5) Mayemba introduced no evidence showing he
believed he was a noncitizen national; to the contrary, he testified he did not know
what it meant to be a national. Because substantial evidence supports the BIA's
finding Mayemba failed to meet his burden of showing he did not make a false claim
of United States citizenship, he did not prove he was admissible. See Rodriguez, 519
F.3d at 777 (considering fact the petitioner "did not testify and [did] not argue that he
meant to indicate that he was a national" and rejecting the petitioner's argument he
did not "understand what it meant when he marked the 'citizen [or] national of the
United States' box"); Kirong v. Mukasey, 529 F.3d 800, 804-05 (8th Cir. 2008)
(finding substantial evidence supported the determination of inadmissability because
the petitioner "testified that he did not know what a national was and also that a
2
Although the application for admission was not the basis for the false claim
of United States citizenship, it may still be relevant evidence of Mayemba's intent in
marking the checkbox on the Form I-9 as it relates to whether he was admissible.
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citizen was a person born in the United States[, and] [h]e knew that he was not born
in the United States and was not a United States citizen"); Hashmi, 533 F.3d at 704
(upholding inadmissibility determination because the petitioner had unambiguously
represented in another employer form he was a United States citizen and because he
"admitted at the hearing that he knew a person born in the United States is a United
States citizen").
Finally, as to Mayemba's appeal of the BIA's denial of his motion for
reconsideration, such motions are reviewed for an abuse of discretion. See, e.g., INS
v. Doherty, 502 U.S. 314, 323 (1992). "The BIA abuses its discretion where it gives
no rational explanation for its decision, departs from its established policies without
explanation, relies on impermissible factors or legal error, or ignores or distorts the
record evidence." Mshihiri v. Holder, 753 F.3d 785, 789 (8th Cir. 2014) (internal
quotation marks omitted). Mayemba did not present any meaningful argument on the
issue and we find no abuse of discretion.
For these reasons, the petitions for review are denied.
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