Theodros v. Gonzales

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT June 25, 2007

Charles R. Fulbruge III

Clerk

No. 05-60980

BROOK EMMANUEL THEODROS,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. Attorney General,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals

Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Brook Emmanuel Theodros (Theodros) petitions this court to

review the decision of the Board of Immigration Appeals (BIA)

affirming an immigration judge’s ruling that he was removable and

denying his application for status adjustment because he had made

a false claim to United States citizenship to gain employment.

For the following reasons, the petition is DENIED.

I.

Theodros, a native of Ethiopia and a citizen of Italy, came

to the United States with his father in 1987, when he was

thirteen years old, as a derivative E-2 visa holder benefitting

from his father’s E-1 status. Theodros’s E-2 status was valid

until 1993, when he reached the age of eighteen. In 1993 and

1994, he served prison sentences in California for three

convictions for offenses of receiving stolen property—offenses

categorized as crimes involving moral turpitude. After

completing his sentences, Theodros moved to Dallas, Texas, where

he worked for four-and-a-half years at a hotel, the Marriott.

Then, from 1999 to 2003, Theodros worked for Nortel in Dallas

and, in 2003, Theodros moved to Hawaii to manage commercial real

estate.

On November 24, 2003, the Department of Homeland Security

(DHS)issued Theodros a Notice to Appear, charging him with

removability under 8 U.S.C. § 1227(a)(1)(B)1 of the Immigration

and Nationality Act (INA) since he remained in the United States

after the expiration of his visa. To avoid deportation, Theodros

sought an adjustment of status under 8 U.S.C. § 1255(a), which

1

8 U.S.C. § 1227(a)(1)(B) provides:

“(a) Classes of deportable aliens[:] Any alien

(including an alien crewman) in and admitted to the

United States shall, upon the order of the Attorney

General, be removed if the alien is within one or more

of the following classes of deportable aliens: (1)

Inadmissible at time of entry or of adjustment of

status or violates status . . . . (B) Present in

violation of law[;] Any alien who is present in the

United States in violation of this chapter or any other

law of the United States, or whose nonimmigrant visa

(or other documentation authorizing admission into the

United States as a nonimmigrant) has been revoked under

section 1201(i) of this title, is deportable.”

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requires, inter alia, an alien to be “admissible to the United

States” in order to qualify for a status adjustment.2 Since

Theodros was inadmissible under 8 U.S.C. § 1182(a)(2)(A) because

he had committed crimes of moral turpitude, he sought a waiver of

inadmissibility under 8 U.S.C. §§ 1182(a)(2)(F) and (h) due to

the extreme hardship his removal would cause his wife, a United

States citizen. Therefore, if this waiver of inadmissibility

were granted, Theodros would be deemed admissible and eligible

for a status adjustment under 8 U.S.C. § 1255(a)(2).

Subsequently, at the initial hearing before the Immigration

Judge (IJ) on March 12, 2004, the IJ asked Theodros whether he

had authorization to work in the United States prior to his

wife’s I-130 petition and Theodros responded that he first

received authorization in 2000.3 The IJ then asked Theodros how

he obtained jobs prior to 2000, and Theodros answered that he

2

8 U.S.C. § 1255(a) provides:

“The status of an alien who was inspected and admitted

or paroled into the United States or the status of any

other alien having an approved petition for

classification . . . may be adjusted by the Attorney

General, in his discretion and under such regulations

as he may prescribe, to that of an alien lawfully

admitted for permanent residence if (1) the alien makes

an application for such adjustment, (2) the alien is

eligible to receive an immigrant visa and is admissible

to the United States for permanent residence, and (3)

an immigrant visa is immediately available to him at

the time his application is filed.”

3

At all times throughout all the proceedings Theodros was

represented by legal counsel.

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“didn’t tell the truth.” The government then asked Theodros

whether he “ever told somebody [he was] a U.S. citizen”, and

Theodros replied, “On the jobs, yes, I did. On the job

application where it says, when it asks on that, I did.” The IJ

then suspended the hearing and, six weeks later, on April 23,

2004, DHS filed an additional charge against Theodros. DHS

alleged that, first, in his testimony on March 12, 2004, Theodros

admitted to falsely claiming United States citizenship to gain

employment and, second, that in November 1999, Theodros

represented himself as a United States citizen to gain employment

at Nortel. Based on those allegations, DHS charged Theodros with

removability under 8 U.S.C. § 1227(a)(3)(D)(i)4 for falsely

representing he was a United States citizen. This additional

charge jeopardized Theodros’s admissibility because 8 U.S.C. §

1182(a)(6)(C)(ii)(I)5 provides that such a false representation

of citizenship renders an alien inadmissible—and, unlike

inadmissibility caused by committing crimes involving moral

turpitude, no waiver is available for inadmissibility caused by

4

8 U.S.C. § 1227(a)(3)(D)(i) provides: “Any 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 is deportable.”

5

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.”

4

such false claiming of citizenship.

At the subsequent hearing on July 6, 2004, Theodros’s wife

testified that she is supported by the rental income from the

commercial real estate managed by her husband and would not be

capable of managing the property by herself if Theodros were

deported. Theodros also testified, admitting he made false

claims of United States citizenship to gain employment but

stating that he could not now remember to which employers he thus

lied or just when he did so. And, when asked “You don’t know

what you told Nortel in 1999,” Theodros replied “I can’t say 100

percent.” The government introduced a document from Theodros’s

Nortel employment application entitled “Determination of

Eligibility to Work on Jobs Affected by U.S. Export Control

Laws”, signed by Theodros and dated November 20, 1999. In this

document, Theodros answered affirmatively the question asking

whether the signatory was a United States citizen or permanent

resident. Theodros’s counsel then stated that Theodros admitted

that he had made claims to United States citizenship to obtain

employment, but further stated, with respect to the allegation

that on November 20, 1999 Theodros had claimed to be a United

States citizen for purposes of obtaining employment at Nortel,

that “we’re going to deny that, Your Honor.”

The IJ ruled he “would be inclined to grant the respondent

adjustment and the [hardship] waiver” but that “the issue before

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the Court is whether there has been a false claim to U.S.

citizenship, since in the Court’s understanding of the law, that

removes any discretion that the Court might otherwise have.”

Finding that Theodros had made a false claim to United States

citizenship to gain employment, and that this is an unwaivable

ground of inadmissibility, the IJ denied Theodros’s request for

adjustment of status and ordered him to depart voluntarily or be

deported.

Theodros timely appealed to the BIA, which adopted and

affirmed the IJ’s decision and dismissed Theodros’s appeal.

Theodros then filed in this court a petition for review raising

the same claims presented to the BIA—essentially that the IJ’s

decisions denying Theodros’s application for status adjustment

and the waiver of inadmissibility were based on insufficient

evidence and that the IJ erred in interpreting the bar to

admissibility in 8 U.S.C. § 1182(a)(6)(C)(ii)(I) as applying to

false claims of United States citizenship to gain private sector

employment. Theodros’s motion for a stay of removal pending

review was denied. For the following reasons, we deny Theodros’s

petition.

II.

“We review factual findings of the Board to determine if

they are supported by substantial evidence in the record.”

Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). “When, as

6

here, the BIA affirms the immigration judge and relies on the

reasons set forth in the immigration judge's decision, this court

reviews the decision of the immigration judge as well as the

decision of the BIA.” Ahmed v. Gonzales, 447 F.3d 433, 437 (5th

Cir. 2006).

Theodros seeks review of the IJ and BIA decisions finding he

made a false claim of United States citizenship under 8 U.S.C.

§§ 1227(a)(3)(D)(i) and 1182(a)(6)(c)(ii)(I). He argues that the

finding rests on insufficient evidence and on an incorrect

interpretation of the INA.

A. False Representation of Citizenship

Theodros argues that substantial evidence does not support

the finding that he falsely claimed United States citizenship.

We review the BIA’s factual findings for substantial evidence,

with deference given to the IJ’s credibility determinations. We

affirm the decision unless the “evidence compels a contrary

conclusion.” Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th

Cir. 1996). “In other words, the alien must show that the

evidence was so compelling that no reasonable factfinder could

conclude against it. This court reviews conclusions of law de

novo (although with the usual deference to the Board’s

interpretations of ambiguous provisions of the Act in accordance

with Chevron U.S.A., Inc. v. Natural Resources Defense Council,

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).” Id.

7

(citations omitted).

While under oath at his March 12, 2004 hearing, Theodros

admitted he had falsely claimed citizenship in order to obtain

employment before securing a work permit. However, he argues

that his admission is too vague to support a finding that he did

so after the September 30, 1996 effective date of 8 U.S.C.

§§ 1227(a)(3)(D) and 1182(a)(6)(C)(ii)(I). See Illegal

Immigration Reform and Immigrant Responsibility Act, Pub. L. No.

104-208, 110 Stat. 3009 (1996) § 344(c). Under 8 U.S.C.

§ 1227(a)(3)(D)(i), “Any 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 other Federal or State law is

deportable.” See also 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (same

language but rendering the alien inadmissible). Both parties

agree that no waiver is available for this ground of

inadmissibility.

Theodros argues that he did not specify the employment for

which he admits making the false representations of citizenship,

and all of his employment prior to the Nortel job (which began in

1999) began prior to September 30, 1996. He also argues that the

Nortel form cannot establish that he made a false representation

for that employment since he could have (falsely) indicated he

was a lawful permanent resident, which does not lead to the same

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non-waivable bar to admissibility as falsely representing United

States citizenship.

To support the IJ’s finding of a false representation of

citizenship, the government provided as rebuttal evidence at the

July 6, 2004 hearing a Nortel employment document6 signed by

Theodros on November 20, 1999, where he indicated a simple

affirmative answer to the question asking whether he was a United

States citizen or a permanent resident—with language

substantially similar to that on the Form I-9. Additionally,

Theodros testified under oath in court that he had represented

himself as a United States citizen to gain employment. In his

testimony he could not deny that he had done so to Nortel in

1999. The IJ had asked Theodros, during the discussion of how he

had gained employment prior to his wife’s 2001 petition, “[H]ave

you ever told somebody you’re a U.S. citizen” and Theodros

responded, after initially denying the question, “On the jobs,

yes, I did. On the job application where it says, when it asks on

that, I did.”

After reviewing the record, we cannot say as a matter of law

that the IJ was incorrect.7 Oral testimony and documentary

6

The government could not obtain a Form I-9 from Nortel,

which was described by government counsel as “very, very

uncooperative” and “very, very difficult.”

7

Theodros’s case is distinguishable from other cases cited,

such as the Ninth Circuit's United States v. Karaouni, 379 F.3d

1139 (9th Cir. 2004), and United States v. Mulumba, 162 Fed.Appx.

9

evidence (including Theodros’s testimony that he had falsely

claimed citizenship in connection with “the jobs,” plural, and

admitted at that time, before changing his story again, having

had only two jobs prior to 2001—Marriott and Nortel) clearly

support the IJ’s finding that he falsely represented to employers

that he was a United States citizen.8 Other circuits have held

similarly. See Ateka v. Ashcroft, 384 F.3d 954, 956–57 (8th Cir.

2004) (same finding under 8 U.S.C. § 1182(a)(6)(C) of the INA,

which has language identical to 8 U.S.C. § 1227(a)(3)(D)); Rana

274, 2005 WL 3226852 (5th Cir. 2005) (unpublished). In both of

these cases, the immigrants’ criminal convictions were reversed

when the sole evidence of their false and willful representations

of United States citizenship described in the opinions was their

respective checking of the same I-9 box language at issue here,

and the cases pertained to aliens charged with making a false

claim under 18 U.S.C. § 911, a criminal statute carrying the

higher burden of beyond a reasonable doubt. Karaouni, 379 F.3d

at 1145; Mulumba, 2005 WL 3226852 at *1. Also, the statutory

language is distinguishable, since 18 U.S.C. § 911 expressly

requires a willful misrepresentation. See Rana v. Gonzales, 175

Fed.Appx. 988, 2006 WL 1389118 (10th Cir. 2006) (following the

Eighth Circuit’s Ateka in a similar case and distinguishing the

Ninth Circuit’s Karaouni). In contrast, § 1227(a)(3)(D)(ii) and

§ 1182(a)(6)(C)(ii)(II) each make an exception for certain aliens

who (unlike Theodros) are children of a citizen and “reasonably

believed . . . that he or she was a citizen.”

8

We also note that Theodros never claimed he thought he was

a lawful permanent resident or that he ever represented himself

as such, and he admitted that he had represented himself as a

United States citizen in connection with applying for employment.

In his testimony he did not deny having so “told Nortel in 1999.”

And, both § 1227(a)(3)(D)(i) and § 1182(a)(6)(C)(ii)(I)

include oral as well as written false representations of

citizenship “for any purpose or benefit under this chapter

(including sections 1324(a) of this title) . . .”

10

v. Gonzales, 175 F. Appx. 988, 996–97 (10th Cir. 2006)

(unpublished; same).

B. Private Sector Employment

Theodros next argues that even if he falsely claimed United

States citizenship to gain or retain employment, seeking private-

sector employment does not fall under any purpose under the INA,

federal or state law required to make him inadmissible under 8

U.S.C. § 1227(a)(3)(D).

When a statute is arguably ambiguous, as is the case here,

we give deference as described in Chevron, 104 S.Ct. at 2793, to

the BIA’s interpretation of the statutory provision, and then

review the BIA’s legal conclusions de novo. Smalley v. Ashcroft,

354 F.3d 332, 335-36 (5th Cir. 2003) (affirming the BIA’s

definition of “moral turpitude,” which was not defined by the

statute, giving its interpretation Chevron deference). As we

have explained, “this two-step approach provides both

consistency—concerning the meaning of [the statute at issue]—and

a proper regard for the BIA’s administrative role—interpretation

of federal immigration laws.” Id.

8 U.S.C. § 1227(a)(3)(D)(i) requires the false

representation of citizenship to have been made “for any purpose

or benefit under this chapter (including section 1324a of this

title) or any Federal or State law.” 8 U.S.C. § 1324a makes it

illegal for any (or almost any – no exception is claimed here)

11

employer—public or private—to hire or continue to employ an

unlawful or unauthorized alien. Indeed, 8 U.S.C. §1324a(b)

requires employers to verify the eligibility of their potential

employee by, for example, completing an employment verification

form. Therefore, the BIA found that private sector employment

was a “purpose or benefit” under section 1227(a)(3)(D):

“The plain language of the statute belies [Theodros’s]

arguments, as the statute provides that “any purpose or

benefit under this Act” is inclusive of section 274A [8

U.S.C § 1324a], the rules governing unlawful employment

of aliens by private or government entities. Reference

to that section immediately following the “purpose or

benefit” clause of section 237(a)(3)(D)(i) [8 U.S.C. §

1227(a)(3)(D)(i)] informs the inference that employment

is an example of the sort of purpose or benefit

contemplated in the statute. Further, the statute

imposes no requirement that the “purpose or benefit”

obtained through the false citizenship representation

be obtained through a federal or state agency.

Instead, the statute deems removable an alien who

obtains a purpose or benefit otherwise available

through the Act or through any federal or state law,

through misrepresenting his citizenship status.”

As the BIA also recognizes, there is no published authority

finding that private employment is not a benefit or purpose under

the Act. Indeed, there is nothing in this record or in any

relevant authority, cited by the parties or otherwise, that leads

this court to find that the BIA’s construction of the statute is

not reasonable or “permissible.” See Chevron, 104 S.Ct. at 2793.

III.

For the foregoing reasons, Theodros’s petition is

DENIED.

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