David Diaz-Jimenez v. Jefferson Sessions, III

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ISRAEL DIAZ-JIMENEZ, No. 15-73603
Petitioner,
Agency No.
v. A204-294-379
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 17, 2017
San Francisco, California
Filed August 30, 2018
Before: Edward Leavy, William A. Fletcher,
and Richard A. Paez, Circuit Judges.
Opinion by Judge W. Fletcher
2 DIAZ-JIMENEZ V. SESSIONS
SUMMARY*
Immigration
The panel granted David Israel Diaz-Jimenez’s petition
for review of a decision of the Board of Immigration Appeals
upholding his order of removal, holding that Diaz was not
removable under 8 U.S.C. § 1182(a)(6)(C)(ii)(I), as an alien
who made a false claim of citizenship to obtain private
employment, because there was no basis in the record to
conclude that Diaz represented himself as a citizen on a Form
I–9, and remanded.
Under 8 U.S.C. § 1182(a)(6)(C)(ii)(I), an “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 [8 U.S.C. § 1324a]) or
any other Federal or State law is inadmissible.”
The panel held that private employment is a “purpose or
benefit” within the meaning of § 1182(a)(6)(C)(ii)(I). The
panel observed that § 1182(a)(6)(C)(ii)(I) refers to 8 U.S.C.
§ 1324a, which makes it unlawful to hire an unauthorized
alien. The panel further explained that § 1324a covers federal
employment, but its principal concern is private employment.
Thus, the panel concluded that by specifically referencing
§ 1324a in the text of § 1182(a)(6)(C)(ii)(I), Congress
expressed an intent to make private employment a qualifying
“purpose or benefit.”
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DIAZ-JIMENEZ V. SESSIONS 3
Next, the panel addressed Diaz’s argument that, even if
private employment qualifies as a purpose of benefit, he had
not made a false representation of citizenship for the purposes
of § 1324a. As a preliminary matter, the panel concluded that
Diaz had satisfied the exhaustion requirement with respect to
this issue, explaining that Diaz did not make the precise
argument to the BIA, but he gave the BIA an adequate
opportunity to pass on the issue.
Addressing the merits, the panel observed that
§ 1324a(b)(2) requires a person seeking employment to attest
to United States citizenship on “the form designated or
established” for that purpose, and that the relevant designated
form under § 1324a(b)(2) is Form I–9.
The panel held that an alien can violate
§ 1182(a)(6)(C)(ii)(I) by a false representation of citizenship
for the “purpose or benefit” of obtaining private employment
under § 1324a only when such a representation is made under
§ 1324a(b)(2) on a Form I–9. In so concluding, the panel
considered the language of § 1182(a)(6)(C)(ii)(I), the BIA’s
decision in Matter of Bett, 26 I. & N. Dec. 437, 440 (BIA
2014) (holding that an alien who represents himself as a
citizen on a Form I–9 to secure employment with a private
employer has falsely represented himself for a purpose or
benefit under the Immigration & Nationality Act), and the
legislative history.
Because there was nothing in the record showing that
Diaz ever filled out a Form I–9, the panel concluded there
was therefore nothing in the record to show that he made a
4 DIAZ-JIMENEZ V. SESSIONS
false representation of citizenship under § 1324a(b)(2) and
that, as a consequence, he made a false representation of
citizenship within the meaning of § 1182(a)(6)(C)(ii)(I).
COUNSEL
Alan Hutchison (argued), Law Office of Alan Hutchison,
Reno, Nevada, for Petitioner.
Victor M. Lawrence (argued) and Emily Ann Radford,
Assistant Directors; Kohsei Ugumori, Senior Litigation
Counsel; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
W. FLETCHER, Circuit Judge:
David Israel Diaz-Jimenez (“Diaz”) petitions for review
of the decision of the Board of Immigration Appeals (“BIA”)
upholding his order of removal. The Immigration Judge
(“IJ”) concluded that Diaz was removable because he made
a false claim of United States citizenship to obtain private
employment, in violation of 8 U.S.C. § 1182(a)(6)(C)(ii)(I) of
the Immigration and Nationality Act (“INA”). The BIA
dismissed Diaz’s appeal, writing that “an alien who
represents himself as a citizen on a Form I–9 to secure
employment with a private employer has falsely represented
himself for a purpose or benefit under the Act.” There is no
basis in the record for concluding that Diaz “represent[ed]
himself as a citizen on a Form I–9.” Because we conclude
DIAZ-JIMENEZ V. SESSIONS 5
that removability under § 1182(a)(6)(C)(ii)(I) because of a
false representation for a “purpose or benefit” under 8 U.S.C.
§ 1324a must be based on such a representation on a Form
I–9, we grant Diaz’s petition for review and remand for
further proceedings.
I. Background
Diaz is a native and citizen of Mexico. In July 2013, he
was served a Notice to Appear (“NTA”), alleging illegal entry
into the United States on or about September 15, 1993. The
NTA charged four grounds of removal: (1) under 8 U.S.C.
§ 1182(a)(6)(A)(i), for being present in the United States
without having been admitted or paroled, or for having
arrived in the United States at a “time or place other than as
designated by the Attorney General”; (2) under
§ 1182(a)(6)(C)(ii)(I), for “falsely represent[ing]” himself to
be a citizen of the United States for a “purpose or benefit”
under federal or state law; (3) under § 1182(a)(2)(A)(i)(I), for
being convicted of a crime involving moral turpitude; and
(4) under § 1182(a)(6)(C)(i), for seeking to procure a benefit
under the INA “by fraud or willfully misrepresenting a
material fact.”
Diaz conceded before an IJ that he was removable under
the first ground, but denied removability under the others.
The IJ held that Diaz was removable under the first and
second charges—unlawful entry and false claim of
citizenship. The IJ refused to sustain the third
charge—conviction of a crime involving moral turpitude.
Finally, the IJ wrote that it “necessarily follow[ed]” from the
second charge that Diaz was inadmissible under the fourth
charge—fraudulent or willful misrepresentation for a benefit
6 DIAZ-JIMENEZ V. SESSIONS
under the INA. The IJ denied Diaz’s application for
voluntary departure.
Diaz appealed to the BIA, contending that the IJ had erred
in concluding that he was removable under
§ 1182(a)(6)(C)(ii)(I) for making a false representation of
citizenship for a purpose or benefit under state or federal law.
The BIA dismissed Diaz’s appeal. It wrote:
[Diaz’s] sole contention is that he is not
removable pursuant to section 212(a)(6)(C)(ii)
of the Act, 8 U.S.C. § 1182(a)(6)(C)(ii),
inasmuch as a false claim to United States
citizenship to obtain employment does not fall
with[in] the statute. However, the Board held
subsequent to the hearing that an alien who
represents himself as a citizen on a Form I–9
to secure employment with a private employer
has falsely represented himself for a purpose
or benefit under the Act. See Matter of Bett,
26 I&N Dec. 437 (BIA 2014).
The BIA noted that the IJ had not sustained the third charge,
and concluded that the IJ had not ruled on the fourth charge.
Diaz’s only contention before us is that the BIA erred in
upholding the IJ’s decision that he was removable under
§ 1182(a)(6)(C)(ii)(I). He concedes that he is removable
under § 1182(a)(6)(A)(i) (unlawful entry). However, his
petition is not moot because different and more severe
consequences flow from being found removable under
§ 1182(a)(6)(C)(ii)(I) (false claim of citizenship).
DIAZ-JIMENEZ V. SESSIONS 7
II. Standard of Review
“We review the BIA’s legal determinations de novo and
its factual findings for substantial evidence.” Kyong Ho Shin
v. Holder, 607 F.3d 1213, 1216 (9th Cir. 2010).
III. Discussion
The section of the INA at issue, 8 U.S.C.
§ 1182(a)(6)(C)(ii)(I), provides:
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.
Before the IJ and in his brief to the BIA, Diaz principally
argued that private employment is not a “purpose or benefit”
within the meaning of § 1182(a)(6)(C)(ii)(I). Diaz also
argued to the BIA, in the alternative, that a false
representation of citizenship under § 1182(a)(6)(C)(ii)(I) for
the purpose of obtaining private employment requires that the
representation be made “under penalty of perjury” on a
“designated or established” form, as provided under 8 U.S.C.
§ 1324a(b)(2). As described above, the BIA responded that
“an alien who represents himself as a citizen on a Form I–9
to secure employment with a private employer has falsely
represented himself for a purpose or benefit under the Act.”
Diaz makes both arguments to us. We discuss them in
turn.
8 DIAZ-JIMENEZ V. SESSIONS
A. Private Employment as a “Purpose or Benefit” under
the INA
Diaz argues that private employment is not a “purpose or
benefit” within the meaning of § 1182(a)(6)(C)(ii)(I). We
disagree.
If § 1182(a)(6)(C)(ii)(I) referred only to a “purpose or
benefit under . . . Federal or State law,” we would conclude
that “purpose or benefit” does not include private
employment. However, § 1182(a)(6)(C)(ii)(I) contains an
additional clause—“(including section 1324a of this
title)”—specifying a particular “purpose or benefit” that
would not otherwise have been within the scope of the
statute. “[S]ection 1324a of this title” refers to 8 U.S.C.
§ 1324a, entitled “Unlawful employment of aliens.”
Section 1324a makes it unlawful to knowingly hire an
“unauthorized alien.” 8 U.S.C. § 1324a(a)(1)(A). An
“unauthorized alien” is an alien who at the time of
employment is neither lawfully admitted for permanent
residence nor authorized to work in the United States. Id.
§ 1324a(h)(3). Section 1324a requires employers to screen
for unauthorized aliens using an “[e]mployment verification
system.” Id. § 1324a(b); see H.R. Rep. No. 99-1000, at 88
(1986) (Conf. Rep.). Section 1324a covers federal
employment, see 8 U.S.C. § 1324a(a)(7), but its principal
concern is private employment.
We conclude that by specifically referencing § 1324a in
the text of § 1182(a)(6)(C)(ii)(I), Congress expressed an
intent to make private employment a qualifying “purpose or
benefit.” In so concluding, we join other circuits that have
reached the same conclusion. See, e.g., Rodriguez v.
DIAZ-JIMENEZ V. SESSIONS 9
Mukasey, 519 F.3d 773, 777 (8th Cir. 2008) (holding that “the
explicit reference to § 1324a in § 1182(a)(6)(C)(ii)(I)
indicates that private employment is a ‘purpose or benefit’ of
the Act”); see also Dakura v. Holder, 772 F.3d 994, 999 (4th
Cir. 2014) (collecting cases). The BIA also so concluded in
Matter of Bett, 26 I. & N. Dec. 437, 440 (BIA 2014), holding
that “an alien who represents himself as a citizen on a Form
I–9 to secure employment with a private employer has falsely
represented himself for a purpose or benefit under the Act.”
B. False Representation of Citizenship under § 1324a
Diaz further argues that even if private employment
qualifies as a “purpose or benefit,” he has not made a false
representation of citizenship for purposes of § 1324a. Section
1324a(b)(2) provides:
Individual attestation of employment
authorization
The individual [seeking employment]
must attest, under penalty of perjury on the
form designated or established for purposes of
paragraph (1), that the individual is a citizen
or national of the United States, an alien
lawfully admitted for permanent residence, or
an alien who is authorized under this chapter
or by the Attorney General to be hired,
recruited, or referred for such employment.
Such attestation may be manifested by either
a hand-written or an electronic signature.
8 U.S.C. § 1324a(b)(2). No other subsection of § 1324a
imposes an obligation on a person seeking employment, and
10 DIAZ-JIMENEZ V. SESSIONS
no other subsection refers to a representation of citizenship.
Diaz argues that he is removable under § 1182(a)(6)(C)(ii)(I)
only if he made a false representation of citizenship on “the
form designated or established” under § 1324a(b)(2). For the
reasons that follow, we agree.
1. Exhaustion Before the BIA
Before reaching the merits of Diaz’s argument, we must
determine whether he has “exhausted all administrative
remedies available . . . as of right.” Puga v. Chertoff,
488 F.3d 812, 815 (9th Cir. 2007) (quoting 8 U.S.C.
§ 1252(d)(1)). To satisfy the exhaustion requirement, Diaz
needed to “put the BIA on notice” in his appeal from the IJ’s
removal order. Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir.
2011) (quoting Moreno-Morante v. Gonzales, 490 F.3d 1172,
1173 n.1 (9th Cir. 2007)).
“We do not employ the exhaustion doctrine in a
formalistic manner.” Id. (quoting Figueroa v. Mukasey,
543 F.3d 487, 492 (9th Cir. 2008)). Thus, while “[a]
petitioner cannot satisfy the exhaustion requirement by
making a general challenge” to the BIA’s decision, the
petitioner “need not . . . raise the precise argument below.”
Garcia v. Lynch, 786 F.3d 789, 793 (9th Cir. 2015) (per
curiam) (emphasis in original) (quoting Vizcarra-Ayala v.
Mukasey, 514 F.3d 870, 873 (9th Cir. 2008)). For example,
in Moreno-Morante, an alien sought to argue before this court
that grandchildren meet the definition of “child” under
8 U.S.C. § 1101(b)(1)(F)(i). 490 F.3d at 1173 n.1. The alien
had not made this precise statutory argument to the BIA,
arguing only that grandchildren should be considered
qualifying relatives for purposes of cancellation of removal.
Id. We held that the alien had given the agency “an
DIAZ-JIMENEZ V. SESSIONS 11
opportunity to pass on this issue,” id. (quoting Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam)),
and that his “failure to elaborate on his general contention
with a specific statutory argument is . . . immaterial.” Id.
We conclude that Diaz has satisfied the exhaustion
requirement. In his brief to the BIA, he contested his
removability under § 1182(a)(6)(C)(ii)(I), writing, “[T]he
purpose of this legal brief is to determine if the respondent’s
false claim to U.S. Citizenship for employment makes him
inadmissible and hence, removable.” Diaz principally argued
that private employment was not a “purpose or benefit”
within the meaning of the section. However, he also pointed
out that “the purpose of [§ 1324a] is to make it: ‘. . . unlawful
for a person or other entity to hire . . . an alien, knowing the
alien is an unauthorized alien.’ This applies only to
employers, not to unlawful aliens.” He specifically noted that
§ 1324a(b)(2) “is the only wording in section [1324a] that
places any liability on an unauthorized alien.” Diaz did not
make the precise argument we now consider, but he gave the
BIA an adequate opportunity to pass on the issue. We
therefore consider the argument on the merits.
2. False Representation of Citizenship
Section 1324a(b)(2) requires a person seeking
employment to attest to United States citizenship on “the
form designated or established” for that purpose. Diaz argues
that an alien can make a false representation of citizenship
under § 1324a(b)(2) only by making the false representation
on that form.
“[T]he starting point for interpreting a statute is the
language of the statute itself. When interpreting a statute, we
12 DIAZ-JIMENEZ V. SESSIONS
first use the traditional tools of statutory construction to
determine whether Congress directly addressed the precise
question at issue. If the precise question at issue is addressed,
then the unambiguously expressed intent of Congress
controls. A ‘clear and unambiguous’ statutory provision is
one in which the meaning is not contradicted by other
language in the same act.” Olympic Forest Coal. v. Coast
Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018) (internal
citations and quotation marks omitted).
Section 1182(a)(6)(C)(ii)(I) applies to an alien who makes
a false representation of citizenship “under this chapter
(including section 1324a of this title).” To interpret this
provision, “we must read the words in their context and with
a view to their place in the overall statutory scheme.” King
v. Burwell, 135 S. Ct. 2480, 2489 (2015) (internal quotation
marks omitted). Context is especially important for words
like “under,” which can have a variety of meanings. See
Kucana v. Holder, 558 U.S. 233, 245 (2010) (“The word
‘under’ is chameleon; it has many dictionary definitions and
must draw its meaning from its context.” (internal quotation
marks omitted)).
Section 1182 uses the word “under” in several places.
For example, the statute speaks of “aliens who are
inadmissible under the following paragraphs,” 8 U.S.C.
§ 1182(a), and children “seeking an immigrant visa as an
immediate relative under section 1151(b) of this title,” id.
§ 1182(a)(1)(C)(iii). The statute also defines “terrorist
activity” as “any activity which is unlawful under the laws of
the place where it is committed.” Id. § 1182(a)(3)(B)(iii).
These uses of “under” consistently reflect the meaning “in
accordance with.” Kirtsaeng v. John Wiley & Sons, Inc.,
DIAZ-JIMENEZ V. SESSIONS 13
568 U.S. 519, 530 (2013) (quoting 18 Oxford English
Dictionary 950 (2d ed. 1989)). To qualify “under” a statutory
provision, the regulated person or act must satisfy the criteria
specified by the provision. For example, to be “inadmissible
under” § 1182, an alien must fit within one of the described
classes of inadmissible aliens. Similarly, to be “unlawful
under the laws of the place” where an activity is committed,
the activity must be prohibited by the terms of a law of the
local jurisdiction. See Zumel v. Lynch, 803 F.3d 463, 473
(9th Cir. 2015) (“The relevant inquiry under
§ 1182(a)(3)(B)(iii) is whether the activity is unlawful . . . .”
(emphasis removed)). With this in mind, we consider the text
of § 1324a.
The obligations imposed by § 1324a fall almost entirely
on employers. See, e.g., 8 U.S.C. § 1324a(a) (“[m]aking
employment of unauthorized aliens unlawful”). Employers
must “attest, under penalty of perjury,” that they have verified
their new hires. Id. § 1324a(b)(1)(A). Employers “must
ensure that the individual [employee] properly” completes his
or her section of the Form I–9, and must review
documentation establishing an employee’s identity and work
authorization and “ensure that the documents presented
appear to be genuine and . . . relate to the individual.”
8 C.F.R. § 274a.2(b)(1). The employer must also complete
the “Employer Review and Verification” section of the Form
I–9. Id. Employers who engage in a pattern or practice of
violating the verification system are subject to criminal
penalties. See 8 U.S.C. § 1324a(f)(1) (imposing fines “for
each unauthorized alien with respect to whom such a
violation occurs”).
Section 1324a imposes a single requirement on
employees: “The individual must attest, under penalty of
14 DIAZ-JIMENEZ V. SESSIONS
perjury on the form designated or established for purposes of
paragraph (1), that the individual is a citizen or national of
the United States, an alien lawfully admitted for permanent
residence, or an alien who is authorized under this chapter or
by the Attorney General to be hired, recruited, or referred for
such employment.” Id. § 1324a(b)(2) (emphasis added). The
“designated or established” form is Form I–9. See 8 C.F.R.
§ 274a.2(a)(2).
We easily conclude from the foregoing that making a
false representation of United States citizenship on a Form
I–9 qualifies as a false representation “under . . . section
1324a of this title.” Our sister circuits that have considered
this question agree. See Ferrans v. Holder, 612 F.3d 528,
530 (6th Cir. 2010) (noting that “Ferrans falsely represented
himself to be a United States citizen on an Employment
Eligibility Verification Form (‘Form I–9’) in order to obtain
employment at Jiffy Lube”); Rodriguez, 519 F.3d at 777
(“[W]e hold 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.”); Kechkar v.
Gonzales, 500 F.3d 1080, 1082 (10th Cir. 2007) (“DHS later
added a charge of misrepresenting United States citizenship.
Regarding the added charge, DHS alleged that Kechkar had,
on February 6, 2002, completed an employment-eligibility
verification form (Form I–9) to work for Dillard’s, Inc.”).
The precise question before us, however, is different. The
question is whether making a false representation on a Form
I–9 is the only false representation of citizenship to procure
private employment that qualifies as a false representation
under § 1182(a)(6)(C)(ii)(I).
DIAZ-JIMENEZ V. SESSIONS 15
We are assisted in answering the question by the BIA’s
decision in Matter of Bett, where the BIA held that “an alien
who represents himself as a citizen on a Form I–9 to secure
employment with a private employer has falsely represented
himself for a purpose or benefit under the Act.” 26 I. & N.
Dec. at 440 (emphasis added). In support of its conclusion,
the BIA cited four decisions from different circuits. Id.
Three of them were the decisions cited above, all of which
addressed private employment obtained through a false
representation of citizenship on a Form I–9. See Ferrans,
Rodriguez, and Kechkar, supra. The fourth was Castro v.
Attorney General of the U.S., 671 F.3d 356 (3d Cir. 2012), in
which the court held that avoiding the attention of the
immigration authorities did not qualify as a “purpose or
benefit” under § 1182(a)(6)(C)(ii)(I). Castro did not involve
private employment, but in the course of its analysis the court
summarized the legislative history of § 1182(a)(6)(C)(ii)(I).
The Castro court concluded, “There is no question that
§ 1182(a)(6)(C)(ii) encompasses false claims of U.S.
citizenship made during the employment eligibility
verification process.” Id. at 369.
Further, in its Bett opinion, which contains a thorough
discussion of inadmissibility under § 1182(a)(6)(C)(ii)(I), the
BIA sustained the charge against Bett based only on his false
representation of citizenship on a Form I–9. Bett had also
presented an altered social security card as part of his
application for employment, but the BIA considered this
irrelevant. Although the altered card could be considered in
assessing Bett’s credibility, the BIA concluded that “altered
social security cards are not evidence of a false claim to
citizenship.” Bett, 26 I. & N. Dec. at 443.
16 DIAZ-JIMENEZ V. SESSIONS
We are further assisted by the legislative history of
§ 1182(a)(6)(C)(ii)(I), which reflects a narrow focus on false
representations under § 1324a(b)(2). The reference to
§ 1324a was added as an amendment to § 1182(a)(6)(C)(ii)(I)
to penalize false attestations of citizenship under
§ 1324a(b)(2). 142 Cong. Rec. 10,030 (1996). Senator Alan
Simpson explained that he introduced the amendment in
response to the “obvious weakness” of the attestation system,
namely, “the potential for false claims of citizenship” by
persons seeking employment. Id. According to Senator
Simpson, the amendment addressed this weakness by
“creating a new disincentive for falsely claiming U.S.
citizenship, which will be a new ground of exclusion and of
deportation.” Id.
Considering the language of § 1182(a)(6)(C)(ii)(I), the
BIA’s decision in Matter of Bett, and the legislative history,
we conclude that an alien can violate § 1182(a)(6)(C)(ii)(I) by
a false representation of citizenship for the “purpose or
benefit” of obtaining private employment under § 1324a only
when such a representation is made under § 1324a(b)(2) on
a Form I–9. We emphasize that while a false representation
of citizenship for a purpose or benefit under § 1324a must be
on a Form I–9, this is not so for false representations for other
purposes or benefits under other laws. See, e.g., Valadez-
Munoz v. Holder, 623 F.3d 1304, 1308–09 (9th Cir. 2010)
(presentation of a false birth certificate in order to gain
admission into the United States).
Conclusion
There is nothing in the record showing that Diaz ever
filled out a Form I–9. There is therefore nothing in the record
to show that he made a false representation of citizenship
DIAZ-JIMENEZ V. SESSIONS 17
under § 1324a(b)(2), and that, as a consequence, he made a
false representation of citizenship within the meaning of
§ 1182(a)(6)(C)(ii)(I).
We grant the petition for review and remand for further
proceedings.
Petition GRANTED and REMANDED.