Dwumaah v. Atty Gen USA

NOT PRECEDENTIAL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 of an Order of the
Board of Immigration Appeals
(Agency 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
(Opinion filed: April 12, 2010)
OPINION
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.
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, No. 1:05-cr-00157, 2007
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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 falsely
claimed United States citizenship on his student loan applications.2 After Dwumaah
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).
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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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.
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
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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 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
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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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 and his refusal to provide a handwriting sample do not 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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