Rodriguez v. Keisler (8th Cir. 3/19/08)

GRUENDER Murphy Hansen

The 8th Cir had already held that checking off an I-9 form as a "citizen or national" was a false claim to citizenship, in the absence of any claim to be a national. The 8th cir today held that seeking private employment was a "benefit" under the Act, so as to render the applicant permanently inadmissible.  The 8th Cir rejected arguments that proceedings before DAO should be excluded for lack of a translator, preferring to credit the DAO's testimony that the Petitioner understood the questions. 

http://www.ca8.uscourts.gov/opndir/08/03/063523P.pdf

Applicant for Adjustment had filed I-9 claiming to be citizen or national; found inadmissible for false claim to USC.   

1.  The 8th circuit held in Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004), that checking off I-9, combined with statement that he claimed citizenship, sufficed to prove inadmissibility.

   Section 1182(a)(6)(C)(ii)(I) provides that an alien is inadmissible only when he falsely represents himself as a citizen of the United States for any of the described purposes. A false representation by an alien that he is a national of the United States would not make him inadmissible under § 1182(a)(6)(C)(ii)(I). Unfortunately, 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. Therefore, the evidence must support a finding that the alien marked the “citizen or national of the United States” box on a Form I-9 with the purpose of representing himself as a citizen, not a national. See Ateka, 384 F.3d at 957. We held that Ateka was inadmissible because the evidence showed that he falsely represented himself as a citizen and not a national, but we declined to determine whether falsely representing himself as a citizen on a Form I-9 for the purpose of obtaining private employment constituted a benefit or purpose under the Act because Ateka had not properly raised that issue to the BIA. See id. at 958 (Bright, J., concurring).

   * * * [Petitioner] did not testify and does not argue that he meant to indicate that he was a national. Instead, he claims that he did not understand what it meant when he marked the “citizen of national of the United States” box on the Form I-9 and that he did so simply because he wanted to work and someone told him to mark that box to be able to do so.

2.  Found that checking false box on I-9 form, to obtain employment, is a "benefit" under the act.

   [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. With this holding, we follow the lead of all of our sister circuits who have considered this issue. See Theodros v. Gonzales, 490 F.3d 396, 402 (5th Cir. 2007) (holding that private employment is a “benefit or purpose” under the Act and that an alien who falsely represents himself as a citizen to obtain private employment is inadmissible); see also Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007); Naser v. Gonzales, 123 Fed. Appx. 624, 624-25 (5th Cir. 2005).

   The BIA correctly analyzed the Act and held that the “[r]eference to [§ 1324a] immediately following the ‘purpose or benefit’ clause of [§ 1182(a)(6)(C)(ii)(I)] clearly suggests that employment, private or otherwise, is an example of the sort of purpose or benefit contemplated by that statute.” We agree 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. This is so because § 1324a prohibits all employers from knowingly employing unauthorized aliens, and a Form I-9 assists an employer in complying with this requirement and the DHS in enforcing compliance. Therefore, when an alien marks the “citizen or national of the United States” box on a Form I-9 to falsely represent himself as a citizen for the purpose of obtaining private employment, he has falsely represented himself for a purpose or benefit under the Act and is inadmissible. See Theodros, 490 F.3d at 402; Kechkar, 500 F.3d at 1084.

3.  Petitioner argued that sworn statement with adjudications officer shouldn't be admitted, because he didn't understand it and no translator.

   However, Rodriguez did not request a translator, and the adjudications officer testified that Rodriguez understood the questions and did not have difficulty answering the questions in English. Rodriguez further testified before the IJ that he did not remember whether he made the admission to the adjudications officer, but we defer to the IJ’s credibility determination involving Rodriguez’s different statements because, based on the evidence concerning the interview, the IJ’s finding is “supported by a specific, cogent reason for disbelief.” Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006) (internal quotation omitted). Not only did the adjudications officer testify as to Rodriguez’s admission, but it was repeated in the sworn statement he then reviewed and signed.

Atty: Patricia Mattos

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