Paul Kirong v. Michael B. Mukasey

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1370
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Paul Kipkemei Kirong, *
*
Petitioner, *
*
v. * Petition for Review from the
* Board of Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States of *
America, *
*
Respondent. *
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Submitted: January 17, 2008
Filed: June 20, 2008 (Corrected: 06/23/2008)
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Before BYE, BEAM and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Paul Kipkemei Kirong, a native of Kenya, petitions for review of the decision
of the Board of Immigration Appeals (“BIA”) that he was ineligible for adjustment
of status and its alternative decision denying his application for adjustment of status
as a matter of discretion. He also petitions for review of the BIA’s discretionary
decision not to grant voluntary departure. For the reasons discussed below, we deny
the petition.
I. BACKGROUND
Kirong came to the United States in 2001 on an F-1 student visa. On four
occasions between 2001 and 2005, he marked the “citizen or national of the United
States” box on Form I-9s to obtain private employment. Along with the Form I-9s,
he presented an altered social security card to potential employers. His social security
card originally contained the restriction that the card was “valid for work only with
INS [Immigration and Naturalization Service] authorization.” He removed this
language before using the card to obtain employment without INS authorization. In
2005, Kirong was convicted of burglary and child endangerment, following an
incident where he threatened his girlfriend and their child with a knife. He married
his girlfriend while in state custody, but they have never lived together at any point.
In 2006, Kirong admitted that he was removable because he failed to maintain the
conditions of his nonimmigrant status when he was employed for wages without
authorization of the Department of Homeland Security (“DHS”).1 See 8 U.S.C. §
1227(a)(1)(C)(i). However, Kirong sought to adjust his status based on his marriage
to a United States citizen. See 8 U.S.C. § 1255(a), (e)(3).
At a hearing before the immigration judge (“IJ”), Kirong argued that he was
admissible and eligible for adjustment of status based on his testimony that he did not
mark the “citizen or national of the United States” box on the Form I-9s to falsely
represent himself as a citizen of the United States. See 8 U.S.C. § 1182(a)(6)(C)(ii).
Instead, Kirong testified that he simply wanted employment. Kirong also testified that
he had been drinking alcohol on the night of the knife incident, and his wife testified
that she felt pressured by other people involved in the incident to exaggerate her
version of the events to the police.
1
The INS ceased to exist on March 1, 2003, and its functions were transferred
to the DHS. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135(2002).
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After hearing the testimony and reviewing the evidence, the IJ determined that
Kirong was removable because he falsely represented himself as a United States
citizen when he marked on Form I-9s that he was a “citizen or national of the United
States.” See 8 U.S.C. § 1227(a)(3)(D). The IJ then held that Kirong was ineligible
for adjustment of status because he was inadmissible based on his false claim of
United States citizenship. See 8 U.S.C. §§ 1255(a), 1182(a)(6)(C)(ii)(I). The IJ also
held that, even if Kirong were eligible for adjustment of status, she would deny the
application as a matter of discretion. See 8 U.S.C. § 1255(a). She based this
discretionary decision on the facts that Kirong never lived with his wife before or after
the marriage, that he was convicted of child endangerment after threatening his wife
and child with a knife, and that he marked the “citizen or national of the United
States” box on Form I-9s and used an altered social security card to obtain
employment. Finally, the IJ denied Kirong voluntary departure because his lack of
good moral character based on his conviction caused him to be ineligible for voluntary
departure. See 8 U.S.C. § 1229c(b)(1)(B).
Kirong appealed the IJ’s decision to the BIA. The BIA first held that the IJ
erred in concluding that Kirong was removable under 8 U.S.C. § 1227(a)(3)(D). It
concluded that, in order for Kirong to be removable under 8 U.S.C. § 1227(a)(3)(D),
the DHS had the burden of proving by clear and convincing evidence that Kirong
falsely represented himself as a citizen, as opposed to a national, of the United States.
The BIA found that the record did not contain sufficient evidence to support the IJ’s
finding that the DHS met this burden. The BIA, though, held that Kirong previously
conceded his removability under 8 U.S.C. § 1227(a)(1)(C)(i), based on his failure to
maintain the conditions of his nonimmigrant status. Therefore, he still had to prove
that he was eligible for adjustment of status to remain in the United States. See 8
U.S.C. § 1255(a). The BIA held that Kirong did not satisfy his burden to prove
clearly and beyond doubt that he was admissible and, therefore, eligible for
adjustment of status. See 8 U.S.C. §§ 1182(a)(6)(C)(ii)(I), 1229a(c)(2)(A). It
determined that Kirong could not meet his burden of establishing clearly and beyond
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doubt that he had not made a false claim of citizenship based on the evidence that he
marked the “citizen or national of the United States” box on the Form I-9s and signed
them under penalty of perjury, altered his social security card, and testified that he was
not claiming to be either a citizen or a national by filling out the Form I-9s before later
claiming in a brief that he believed he was a national of the United States.
Alternatively, the BIA affirmed the IJ’s discretionary decision to deny Kirong’s
application for adjustment of status. The BIA then made the discretionary decision
to deny voluntary departure.
II. DISCUSSION
Kirong petitions for review of several aspects of the BIA’s decision and argues
that: (1) the BIA held him to the incorrect burden of proof in determining whether he
proved he was admissible under 8 U.S.C. § 1182(a)(6)(C)(ii); (2) he did not falsely
represent himself as a citizen of the United States for a purpose or benefit under the
Immigration and Nationality Act (“the Act”); (3) the BIA violated his right to due
process by failing to consider the “positive equities” of his case in reaching its
discretionary decision to deny adjustment of status; and (4) the BIA erred in its
discretionary decision not to grant voluntary departure.
A. Adjustment of Status
The BIA found that Kirong was ineligible for adjustment of status before
alternatively holding that, even if Kirong were eligible for adjustment of status, it
would deny the application as a matter of discretion. In most circumstances, we
simply would turn to the alternative, discretionary decision, see Ling Yang v.
Mukasey, 514 F.3d 278, 280 n.2 (2d Cir. 2008) (per curiam), and hold that we lack
jurisdiction to review the BIA’s discretionary decision unless Kirong raised a
constitutional claim or a question of law, see Hailemichael v. Gonzales, 454 F.3d 878,
886 (8th Cir. 2006) (“This Court lacks jurisdiction to review discretionary denials of
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adjustment of status, unless the petition for review raises a constitutional claim or
question of law.”); 8 U.S.C. § 1252(a)(2)(B), (D). However, because the BIA’s
alternative finding that Kirong was inadmissible based on his failure to prove clearly
and beyond doubt that he did not falsely represent himself as a citizen of the United
States could result in a permanent bar to entry into the United States, see 8 U.S.C. §
1182(a)(6)(C)(ii)(I), we are required to review the BIA’s determination that Kirong
was inadmissible and, therefore, ineligible for adjustment of status. See Nguyen v.
Mukasey, 522 F.3d 853, 855 (8th Cir. 2008) (per curiam) (holding that even though
Nguyen conceded removability under 8 U.S.C. § 1227(a)(1)(D)(i), we were obliged
to review the BIA’s decision that Nguyen was also “removable for having committed
marriage fraud and for having procured an immigration benefit by fraud or willful
misrepresentation, because such findings could result in a permanent bar to entry into
the United States”).
“We review the Board’s conclusions of law de novo, with substantial deference
to its interpretations of statutes and regulations administered by the agency.”
Rodriguez v. Mukasey, 519 F.3d 773, 776 (8th Cir. 2008) (quotation omitted). “The
Board’s findings of fact will be disturbed only if unsupported by substantial
evidence.” Id. (quotation omitted). Under 8 U.S.C. § 1255(a), an alien who is
removable may seek adjustment of status. An alien must be “admissible to the United
States” to be eligible for adjustment of status. 8 U.S.C. § 1255(a). An alien is
inadmissible if he or she “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.” 8
U.S.C. § 1182(a)(6)(C)(ii)(I).
Kirong first argues that the BIA erred in requiring him to prove clearly and
beyond doubt that he was admissible and that this error also violated his due process
rights. He contends that, while “applicants for admission” to the United States bear
the burden of proving clearly and beyond doubt that they are admissible, he is not an
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applicant for admission because he was lawfully admitted to the United States in
2001. Instead of being required to prove clearly and beyond doubt that he is
admissible, Kirong argues that he must only prove by a preponderance of the evidence
that the apparent grounds for inadmissibility do not apply. We disagree. Kirong
admitted he was removable under 8 U.S.C. § 1227(a)(1)(C)(i). Therefore, he is an
applicant for admission because he is seeking to adjust his status to be admitted as a
lawful permanent resident. See Ruiz-Almanzar v. Ridge, 485 F.3d 193, 197-98 (2d
Cir. 2007) (explaining that an applicant for adjustment of status is in a similar position
as an alien seeking entry into the United States and, “like [an alien] seeking entry,
must show that [he is] eligible for admissibility under [8 U.S.C. § 1182]”) (internal
quotation omitted). With this “applicant for admission” classification, the BIA
correctly determined that Kirong was required to prove clearly and beyond doubt that
he was admissible and, therefore, eligible for adjustment of status. See Rodriguez, 519
F.3d at 776; Kechkar v. Gonzales, 500 F.3d 1080, 1085 (10th Cir. 2007); Blanco v.
Mukasey, 518 F.3d 714, 720 (9th Cir. 2008). Thus, in this case, Kirong was required
to prove clearly and beyond doubt that he did not make a false claim of United States
citizenship for a purpose or benefit under the Act. See 8 U.S.C. § 1182(a)(6)(C)(ii)(I).
Kirong then argues that falsely claiming United States citizenship to obtain
private employment by marking the “citizen or national of the United States” box on
a Form I-9 is not for a purpose or benefit under the Act. See 8 U.S.C. §§
1182(a)(6)(C)(ii)(I), 1324a. We have since decided this issue and held that “an alien
who marks the ‘citizen or national of the United States’ box on a Form I-9 for the
purpose of falsely representing himself as a citizen to secure employment with a
private employer has falsely represented himself for a benefit or purpose under the
Act.” Rodriguez, 519 F.3d at 777. In light of this holding, Kirong’s argument that his
checking the “citizen or national of the United States” box on the Form I-9s was not
for a purpose or benefit under the Act fails so long as he cannot prove clearly and
beyond doubt that he did not represent himself as a United States citizen. See id. at
776 (noting that an alien is only inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii)(I)
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“when he falsely represents himself as a citizen of the United States for any of the
described purposes”).
After reviewing the record, we find that substantial evidence supports the BIA’s
finding that Kirong did not clearly and beyond doubt prove that he was admissible.
Kirong marked the “citizen or national of the United States” box on four Form I-9s
to obtain employment with four different employers. Along with submitting the Form
I-9s, Kirong showed potential employers an altered social security card, from which
he had removed the language requiring INS approval for his employment. Kirong
testified that he did not know what a national was and also that a citizen was a person
born in the United States. He knew that he was not born in the United States and was
not a United States citizen. He also testified that he intentionally marked the “citizen
or national” box but that he did not mean to claim anything by that action. He only
sought to obtain employment. Although it is conceivable that Kirong marked the
“citizen or national of the United States” box on the Form I-9s to indicate he was a
national, the evidence does not clearly and beyond doubt establish that Kirong did not
falsely represent himself as a United States citizen when he marked the “citizen or
national of the United States” box on the Form I-9s. As the BIA stated and as Kirong
argued in his brief to this court, “the evidence in this case, at best, is equivocal as to
whether his attestation involved a claim of citizenship or nationality.” BIA Order at
3.2 Therefore, substantial evidence supports the BIA’s finding that Kirong did not
satisfy his burden of proving clearly and beyond doubt that he did not falsely represent
2
The equivocal nature of the evidence in this case is demonstrated further by the
BIA’s holding that the DHS did not carry its burden of proving by clear and
convincing evidence that Kirong falsely represented himself as a United States citizen.
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himself as a United States citizen and that he, therefore, did not prove he was
admissible.3
Because substantial evidence supports the BIA’s holding that Kirong did not
satisfy his burden of proof, we agree with the BIA’s determination that Kirong is
inadmissible and, therefore, ineligible for adjustment of status. Therefore, we deny
Kirong’s petition for review with respect to his adjustment of status claim.4
3
Kirong also argues that the BIA made a new and incorrect factual finding by
stating that Kirong asserted “something” by marking the “citizen or national of the
United States” box on the Form I-9s. We disagree with his characterization that this
was a new and incorrect factual finding. Instead, the BIA agreed with the IJ’s refusal
to believe that Kirong only marked the box to obtain employment without claiming
anything. Clearly, by marking the box on the four Form I-9s, Kirong was claiming
either to be a citizen or a national of the United States.
Additionally, we reject Kirong’s argument that the BIA made a new and
incorrect factual finding when it characterized his argument in his brief to the BIA as
including a new claim that he meant to indicate he was a national when he marked the
“citizen or national” box. In his brief to the BIA, Kirong discussed the disjunctive
nature of the “citizen or national of the United States” box on the Form I-9s and
argued, “Isn’t it more likely that Mr. Kirong, not really knowing what a national was,
thought that it might then apply to him?” Br. of Pet’r to the BIA at 21. Kirong claims
that he did not argue that he was, in fact, indicating he was a national by marking the
box. He only argued that a person’s decision to mark the “citizen or national” box on
a Form I-9 does not automatically prove that he or she is claiming to be a citizen. We
see no reason to view the BIA’s interpretation of Kirong’s argument as a new and
erroneous factual finding.
4
Because the BIA correctly held that Kirong was ineligible for adjustment of
status, we need not reach the BIA’s alternative, discretionary decision to deny
adjustment of status or Kirong’s due process claim challenging the discretionary
decision.
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B. Voluntary Departure
We generally lack jurisdiction to review the BIA’s decision denying voluntary
departure. 8 U.S.C. § 1229c(f) (“No court shall have jurisdiction over an appeal from
denial of a request for an order of voluntary departure . . . .”). However, we have
jurisdiction over constitutional claims or questions of law relating to a voluntary
departure determination. 8 U.S.C. § 1252(a)(2)(B)(i), (D). Kirong argues that the
BIA legally erred by denying voluntary departure in its discretion sua sponte, instead
of reviewing the IJ’s determination that he was ineligible for voluntary departure.
The BIA “may review questions of law, discretion, and judgment and all other
issues in appeals from the decisions of immigration judges de novo.” 8 C.F.R. §
1003.1(d)(3)(ii). Based on the regulation’s broad grant of authority to the BIA to
review de novo “all . . . issues in appeals from the decisions of immigration judges,”
we see no reason to limit the BIA’s authority to make a discretionary decision to deny
voluntary departure after an IJ denies voluntary departure based on an applicant’s
ineligibility for it. Requiring the BIA to remand this case to the IJ so that the IJ can
first make a discretionary determination “would be an imprudent expenditure of
resources.” Solano-Chicas v. Gonzales, 440 F.3d 1050, 1054 (8th Cir. 2006).
Therefore, we reject Kirong’s legal argument and deny his petition for review with
respect to his voluntary departure claim.
III. CONCLUSION
For the foregoing reasons, we deny Kirong’s petition for review.
BYE, Circuit Judge, concurring.
A false claim of citizenship is a ground for the mandatory denial of an
application for relief from removal. Despite the clear regulatory language imposing
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a mere preponderance standard upon an alien who argues a ground for denial of relief
should not apply to him, see 8 C.F.R. § 1240.8(d) ("If the evidence indicates that one
or more of the grounds for mandatory denial of the application for relief may apply,
the alien shall have the burden of proving by a preponderance of the evidence that
such grounds do not apply." ), we hold Paul Kipkemei Kirong had the higher burden
of proving "clearly and beyond doubt" that he did not make a false claim of
citizenship. I will not belabor the reasons why I disagree with this conclusion,
because we are bound by Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008), issued
after this case was submitted to our panel. See Rodriguez, 519 F.3d at 776("Rodriguez bore the burden of proving clearly and beyond doubt that he was not
inadmissible."). I concur in denying Kirong's petition for review because I agree he
cannot show clearly and beyond doubt that he did not make a false claim of
citizenship when he marked the "citizen or national of the United States" box on Form
I-9.
I write separately for the purpose of urging the government to revise Form I-9.
In Rodriguez, we noted "Form I-9 is poorly designed in that by checking one box the
person ambiguously represents that he is either a citizen or a national." Id. at 776-77.
The ambiguous nature of the "citizen or national" box on Form I-9 has spawned
needless litigation in this circuit as well as others over whether an alien makes a false
claim of citizenship by checking the box. See id.; see also Ateka v. Ashcroft, 384
F.3d 954, 957 (8th Cir. 2004); Kechkar v. Gonzales, 500 F.3d 1080, 1085 (10th Cir.
2007); United States v. Karaouni, 379 F.3d 1139, 1143 (9th Cir. 2004). The doubt
created by Form I-9's disjunctive choice between "citizen or national" is exacerbated
by the fact that few people know what it means to be a "national" of the United States.
Indeed, counsel for the government in this case could not advise our panel on the
precise meaning of a "national" of the United States. As a result, some aliens may
genuinely, but mistakenly, believe they are nationals of the United States when they
complete Form I-9, only to be subsequently imposed with the onerous burden of
proving clearly and beyond doubt that they were not making a false claim of
citizenship.
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The government offers no reason why the "citizen or national" inquiry on Form
I-9 must be posed as a single disjunctive choice, rather than as two separate, stand-
alone questions. Given the dire consequences which face an alien who falsely
represents himself to be a citizen, see ante at 5 (noting such a claim can result in a
permanent bar to entry into the United States), I suggest a simple revision in this
widely-used form is more than overdue.
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