Jaen-Chavez v. U.S. Attorney General , 415 F. App'x 964 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12880 FEB 25, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A096-741-112
FRITZ JAEN-CHAVEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 25, 2011)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Fritz Jaen-Chavez (“Jaen-Chavez”) seeks review of the Board of
Immigration Appeals’s (“BIA”) affirming the Immigration Judge’s (“IJ”)
pretermission of his application for a waiver of inadmissibility and an adjustment
of status. After review, we dismiss in part and deny in part the petition.
I. BACKGROUND
A. False Claim of U.S. Citizenship
On May 17, 2002, Jaen-Chavez, a citizen of Peru, entered the United States
with authorization to remain until November 17, 2002. After his visa expired,
Jaen-Chavez stayed in the United States.
In April 2003, Jaen-Chavez applied for a job at Mountain Fresh Young
Chicken in North Carolina. On his employment application, Jaen-Chavez listed a
social security number. Jaen-Chavez completed and signed an Employment
Eligibility Verification Form I-9. On the Form I-9, Jaen-Chavez checked the box
indicating that he attested under penalty of perjury that he was “[a] citizen or
national of the United States.” As one of his two forms of identification, Jaen-
Chavez submitted a U.S. social security card with the number listed on his
employment application.
In June 2005, Jaen-Chavez married Melissa Jones, a U.S. citizen. On
February 5, 2006, Jaen-Chavez filed an application to adjust his immigration
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status, pursuant to the Immigration and Nationality Act (“INA”) § 245, 8 U.S.C.
§ 1255, based on his recent marriage. Jaen-Chavez’s wife filed an I-130 visa
petition on his behalf, which was approved on January 8, 2007. On January 24,
2007, the Department of Homeland Security (“DHS”) denied Jaen-Chavez’s
application for adjustment of status because he had falsely represented himself to
be a U.S. citizen in order to gain employment and thus was inadmissible under
INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii).
B. Removal Proceedings
The same day, the DHS served Jaen-Chavez with a Notice to Appear,
charging him with removability for: (1) having remained in the United States for a
longer time than permitted, pursuant to INA § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B); (2) failing to comply with the conditions of the non-immigrant
status under which he was admitted, pursuant to INA § 237(a)(1)(C)(i), 8 U.S.C.
§ 1227(a)(1)(C)(i); and (3) being an alien who falsely represented himself as a
U.S. citizen for a purpose or benefit under federal or state law, pursuant to INA
§ 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D).
Jaen-Chavez conceded removability, but denied he had falsely claimed to be
a U.S. citizen. Jaen-Chavez noted that he was requesting an adjustment of status
and a waiver of inadmissibility pursuant to INA § 212(i), 8 U.S.C. § 1182(i).
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At his removal hearing, Jaen-Chavez admitted that the social security
number he provided on his employment application was false, that he signed the
employment application, and that he wrote his name beside a statement certifying
that all of the responses provided on the application were correct and truthful.
Jaen-Chavez explained that he obtained the false social security card from
someone he met while waiting in line for work.
Jaen-Chavez further admitted that he checked the box on the Form I-9
indicating he was a “citizen or national of the United States.” Jaen-Chavez
explained that he did not know the difference between a “national” and a “citizen,”
and that he thought that “national” meant “[s]omeone that is here.” Jaen-Chavez
further stated that he did not understand what “under penalty of perjury” meant
and that he signed the Form I-9 without first reading it.
The IJ pretermitted Jaen-Chavez’s application for adjustment of status and
waiver of inadmissibility, finding Jaen-Chavez removable from the United States
pursuant to INA § 237(a)(1)(B), (a)(1)(C)(i), and (a)(3)(D). The IJ found that
Jaen-Chavez provided what he knew to be a false social security card in
conjunction with the Form I-9. The IJ found “somewhat feeble” Jaen-Chavez’s
explanation for marking “citizen or national” on the Form I-9 given that he knew
the social security card was false and he had one year of college education.
4
Accordingly, the IJ found that Jaen-Chavez “knew what he was doing” when he
checked the “citizen or national” box on the Form I-9.
The IJ concluded that: (1) Jaen-Chavez’s false claim to citizenship rendered
him inadmissible under INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii); and
(2) making a false claim of citizenship was not waivable under INA § 212(i), 8
U.S.C. § 1182(i). Although Jaen-Chavez had not submitted an application for
voluntary departure, the IJ concluded that he would deny voluntary departure
because Jaen-Chavez used false identification documents and did not provide a
current valid document.
C. Appeal to the BIA
The BIA dismissed Jaen-Chavez’s appeal, concluding, inter alia, that: (1)
Jaen-Chavez was both removable and inadmissible for having made a false claim
of citizenship for any purpose or benefit under the INA; (2) Jaen-Chavez
knowingly submitted a false social security card along with his Form I-9; (3)
because Jaen-Chavez did not know the meaning of the word “national,” “he could
not have intended to represent himself as a national” on the Form I-9; (4) filling
out the Form I-9 to obtain private employment “is to obtain a benefit under the
Act”; (5) “[t]here is no available waiver”; (6) Jaen-Chavez was statutorily
ineligible for adjustment of status; and (7) because Jaen-Chavez did not request
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voluntary departure before the IJ and had not filed a motion to remand with the
BIA to seek voluntary departure, that issue was not before the BIA.
Jaen-Chavez filed this petition for review.
II. DISCUSSION
A. Jurisdiction
As a threshold matter, we conclude that we lack jurisdiction to review a
number of Jaen-Chavez’s claims.1 We lack jurisdiction to review the discretionary
decisions to deny Jaen-Chavez’s application for a waiver of inadmissibility, filed
pursuant to INA § 212(i), 8 U.S.C. § 1182(i)(1), and to deny his application for an
adjustment of status, filed pursuant to INA § 245, 8 U.S.C. § 1255. See INA
§ 212(i)(2), 8 U.S.C. § 1182(i)(2); INA § 242(a)(2)(B)(i), 8 U.S.C.
§ 1252(a)(2)(B)(i). Thus, to the extent Jaen-Chavez’s petition seeks review of the
Attorney General’s discretionary denial of either form of relief, we dismiss his
petition.
In addition, we lack jurisdiction to review the following unexhausted
claims, which were not argued before the BIA: (1) whether the IJ misallocated the
burden of proof; (2) whether the IJ was biased; and (3) whether the government
1
“We review our subject-matter jurisdiction de novo.” Alvarado v. U.S. Att’y Gen., 610
F.3d 1311, 1314 (11th Cir. 2010).
6
failed to meet its burden of proof with regard to intent to defraud the government.
See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006)
(explaining that we lack jurisdiction to review claims raised in the petition for
review that were not raised with the BIA). Similarly, we lack jurisdiction to
review Jaen-Chavez’s request for voluntary departure because Jaen-Chavez did
not request voluntary departure in proceedings before the IJ. See Galindo-Del
Valle v. Att’y Gen., 213 F.3d 594, 599 (11th Cir. 2000). Accordingly, we dismiss
the petition as to these claims.
Although we lack jurisdiction to review the denial of discretionary relief, we
retain jurisdiction to review questions of law, such as statutory eligibility for
discretionary relief, and constitutional claims. See INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D); Alvarado v. U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir.
2010) (explaining that we retain jurisdiction to address the legal question of
statutory eligibility for discretionary relief). However, we do not review abuse-of-
discretion claims “merely couched in constitutional language” or constitutional
claims that are not colorable. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th
Cir. 2007). “For a constitutional claim to be colorable, the alleged violation need
not be substantial, but the claim must have some possible validity.” Id. at 1284
n.2 (quotation marks omitted).
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Jaen-Chavez raises two constitutional claims, neither of which is colorable.
First, Jaen-Chavez argues that he was singled out for removal because he is an
Hispanic male married to a U.S. citizen, in violation of the Due Process and Equal
Protection Clauses. Jaen-Chavez produced no evidence whatsoever indicating that
DHS instituted removal proceedings against him or any other Hispanic male based
on a discriminatory motive.
Second, Jaen-Chavez contends that he was deprived of employment in
violation of the Due Process Clause. Even assuming arguendo that Jaen-Chavez
had a constitutional right to employment, he identified no specific due process
violation or how proceedings under the immigration statutes deprived him of that
right. Accordingly, we dismiss the petition with respect to Jaen-Chavez’s
constitutional claims.
B. Applicable Standard of Proof in Removal Proceedings
Jaen-Chavez argues that the standard of proof applicable in criminal cases
should apply in removal proceedings. This claim has no merit.
Congress explicitly provided that the government must prove that an alien is
removable “by clear and convincing evidence.” INA § 240(c)(3)(A), 8 U.S.C.
§ 1229a(c)(3)(A). Moreover, the Supreme Court has concluded that “[a]
deportation proceeding is a purely civil action to determine eligibility to remain in
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this country, not to punish an unlawful entry,” and, thus, “[c]onsistent with the
civil nature of the proceeding, various protections that apply in the context of a
criminal trial do not apply in a deportation hearing.” INS v. Lopez-Mendoza, 468
U.S. 1032, 1038, 104 S. Ct. 3479, 3483 (1984). This Court also has refused to
incorporate the protections afforded to criminal defendants into removal
proceedings, which are inherently civil in nature. See De La Teja v. United States,
321 F.3d 1357, 1364-65 (11th Cir. 2003) (refusing to apply the Double Jeopardy
Clause to deportation hearing because double jeopardy attaches only to
proceedings that are essentially criminal in nature). We find no reversible error in
the IJ’s and the BIA’s application of the clear and convincing evidence standard in
Jaen-Chavez’s removal proceedings.
C. Eligibility for Adjustment of Status
Jaen-Chavez challenges the BIA’s conclusion that he was ineligible for
adjustment of status because he was inadmissible for having made a false claim of
U.S. citizenship on his Form I-9.2
2
When, as here, the BIA issues its own decision, we review only that decision, except to
the extent it adopts the IJ’s opinion. Alvarado, 610 F.3d at 1314. “We review the BIA’s
statutory interpretation de novo, but will defer to the BIA’s interpretation of a statute if it is
reasonable and does not contradict the clear intent of Congress.” Jaggernauth v. U.S. Att’y Gen.,
432 F.3d 1346, 1350 (11th Cir. 2005).
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An inadmissible alien is not eligible for an adjustment of status to lawful
permanent resident. See INA § 245(a), 8 U.S.C. § 1255(a) (requiring, inter alia,
that the alien be “admissible to the United States for permanent residence”).
Under § 212(a)(6)(C)(ii), 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 section 1324a of this title) or any other
Federal or State law is inadmissible.” INA § 212(a)(6)(C)(ii)(I), 8 U.S.C.
§ 1182(a)(6)(C)(ii)(I) (emphasis added). Section 1324a, referenced in parentheses,
prohibits an employer from hiring, recruiting or retaining unauthorized aliens and
establishes a verification system to ensure that employees are authorized to work
in the United States. INA § 274A, 8 U.S.C. § 1324a. As part of the verification
system, the prospective employer must attest on a form (i.e., the Form I-9),
provided by the Attorney General, that it has verified that the prospective
employee is not an unauthorized alien by examining certain documents, such as a
social security card. INA § 274A(b)(1)(A), (b)(1)(C)(i), 8 U.S.C.
§ 1324a(b)(1)(A), (b)(1)(C)(i).
Jaen-Chavez argues that he did not make a false claim of U.S. citizenship
within the meaning of § 212(a)(6)(C)(ii). Specifically, he contends that his
checking the box marked “citizen or national of the United States” on the Form I-9
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to procure employment from a private employer was not “for any purpose or
benefit under” the INA.
This argument is contradicted by the plain language of § 212(a)(6)(C)(ii),
which explicitly refers to “section 1324a” as an example of “any purpose or
benefit” under the INA. The reference to § 1324a clearly indicates Congress’s
intent for § 212(a)(6)(C)(ii) to apply to an alien who provides to a prospective
employer false information about his immigration status and authorization to work
in the United States in order to obtain work. Therefore, we join every other circuit
that has addressed this question and conclude that an alien who falsely represents
himself to be a “citizen or national of the United States” on a Form I-9 to obtain
private employment makes a false claim of U.S. citizenship “for any purpose or
benefit under” the INA. See Ferrans v. Holder, 612 F.3d 528, 532-33 (6th Cir.
2010); Rodriguez v. Mukasey, 519 F.3d 773, 776-77 (8th Cir. 2008); Kechkar v.
Gonzales, 500 F.3d 1080, 1085 (10th Cir. 2007); Theodros v. Gonzales, 490 F.3d
396, 402 (5th Cir. 2007).3 Accordingly, we find no reversible error in the BIA’s
conclusion that Jaen-Chavez is inadmissible.
3
Some circuits were construing virtually identical language in INA § 237(a)(2)(D)(i), 8
U.S.C. § 1227(a)(3)(D)(i), which includes within the class of deportable (as opposed to
inadmissible) an 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 . . . .” INA § 237(a)(3)(D)(i), 8 U.S.C. § 1227(a)(3)(D)(i).
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D. Eligibility for § 212(i) Waiver of Inadmissibilty
Jaen-Chavez alternatively contends that his inadmissibility for making a
false claim of U.S. citizenship was waivable. Jaen-Chavez cites INA § 212(i), 8
U.S. C. § 1182(i).
Section 212(i) of the INA, 8 U.S.C. § 1182(i), gives the Attorney General
discretion to waive “the application of clause (i) of subsection (a)(6)(C) of this
section” if the alien is the spouse of a U.S. citizen and meets certain other
requirements. INA § 212(i), 8 U.S.C. § 1182(i). The problem for Jaen-Chavez is
that he was not found inadmissible under § 212(a)(6)(C)(i),4 but under
§ 212(a)(6)(C)(ii). There is no similar waiver provision for § 212(a)(6)(C)(ii).
See generally INA § 212, 8 U.S.C. § 1182. Thus, the BIA did not err in
concluding Jaen-Chavez was ineligible for a § 212(i) waiver of inadmissibility.
PETITION DISMISSED IN PART, DENIED IN PART.
4
Subsection(a)(6)(C)(i) applies to aliens who commit fraud or make a material
misrepresentation in the immigration context. Specifically, § 212(a)(6)(C)(i) provides that an
alien “who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought
to procure or has procured) a visa, other documentation, or admission into the United States or
other benefit provided under this chapter is inadmissible.” INA § 212(a)(6)(C)(i), 8 U.S.C.
§ 1182(a)(6)(C)(i).
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