Nayani v. Mukasey , 285 F. App'x 175 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 24, 2008
No. 07-60527
Summary Calendar Charles R. Fulbruge III
Clerk
ASHIQALI NAYANI
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 324 639
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ashiqali Nayani, a native and citizen of Pakistan, petitions for review of
a final order of the Board of Immigration Appeals (BIA) that dismissed his
appeal of the Immigration Judge’s order removing him to Pakistan. The BIA
concluded that Nayani was deportable under 8 U.S.C. § 1227(a)(3)(D) and
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii) because Nayani made a false
claim of citizenship on an application for a loan guaranteed by the Small
Business Administration (SBA).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-60527
Nayani argues that his false claim of citizenship on the SBA form does not
render him deportable or inadmissible because, although the Small Business
Administration Act (the Act) is a federal law, his false claim of citizenship was
not made for a purpose or benefit thereunder. Nayani argues that recipients of
SBA loans are not required to be citizens or lawful permanent residents and
that he did not actually receive a benefit under the Act.
The BIA’s factual findings are reviewed for substantial evidence. Brieva-
Perez v. Gonzales, 482 F.3d 356, 359 (5th Cir. 2005). In reviewing the BIA’s
construction of immigration statutes, the court will defer to the agency’s
interpretation if it is based on a permissible construction of the statute and if
Congress has not evidenced clear and unambiguous intent concerning the
question before the court. White v. INS, 75 F.3d 213, 215 (5th Cir. 1996) (citing
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984)). Under this standard, the court will not substitute its judgment for that
of the BIA; we may, though, reject any BIA interpretation that is “arbitrary,
capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844.
The BIA concluded that there was a purpose to Nayani’s false claim of
citizenship because, under the Act, 15 U.S.C. § 631(i), SBA funds may not be
used to provide any direct benefit or assistance to anyone in the United States
unlawfully, as Nayani concedes he was when he signed the SBA application.
Further, the BIA found that Nayani made the false claim of citizenship with the
intent that he receive a benefit from signing the SBA application. This finding
was supported by substantial evidence. The BIA’s interpretation of the “purpose
or benefits” clause of Sections 1227(a)(3)(D) and 1182(a)(6)(C)(ii), an
interpretation focusing on Nayani’s intent rather than actual benefits received,
was not “arbitrary, capricious, or manifestly contrary to [a] statute” and is
therefore deserving of our deference. Chevron, 467 U.S. at 844.
Nayani’s petition for review is DENIED.
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