BETT

Cite as 

 (BIA 2014)                              Interim Decision #3818




              Matter of Ezra Kibichii BETT, Respondent
                            Decided October 30, 2014
                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals

  A Form I-9 (Employment Eligibility Verification) is admissible in immigration
proceedings to support charges of removability against an alien and to determine his or
her eligibility for relief from removal.
FOR RESPONDENT: J. Bradley Pace, Esquire, Mission, Kansas
FOR THE DEPARTMENT OF HOMELAND SECURITY:                        Kimberlee L. Moore,
Assistant Chief Counsel
BEFORE: Board Panel: MULLANE and MANN, Board Members; LIEBOWITZ,
Temporary Board Member.
LIEBOWITZ, Temporary Board Member:


    In a decision dated May 9, 2012, an Immigration Judge found the
respondent removable on his own admissions and denied his application for
adjustment of status under section 245(a) of the Immigration and
Nationality Act, 

(a) (2012), because he did not establish
that he was admissible to the United States. The respondent has appealed
from that decision. The appeal will be dismissed.

             I. FACTUAL AND PROCEDURAL HISTORY
   The respondent is a native and citizen of Kenya who was admitted to the
United States on August 20, 2008, as a nonimmigrant student. On
December 3, 2009, the Department of Homeland Security (“DHS”) issued
a notice to appear charging him with removability under section
237(a)(1)(C)(i) of the Act, 

(a)(1)(C)(i) (2006), as an alien
admitted as a nonimmigrant who failed to maintain or comply with the
conditions of his status.
   In a hearing before the Immigration Judge, the respondent applied for
adjustment of status as the beneficiary of a visa petition filed on his behalf
by his United States citizen spouse, which was approved on May 31, 2011.
The DHS asserted that the respondent was not eligible to adjust his status
because he was inadmissible as an alien who falsely represented himself to


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be a United States citizen under section 212(a)(6)(C)(ii)(I) of the Act,

(a)(6)(C)(ii)(I) (2012), which provides as follows:

        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 Act
      (including section 274A) or any other Federal or State law is inadmissible.

(Emphasis added.)1
    The record includes evidence that the respondent filed a Form I-9
(Employment Eligibility Verification) with two different employers on
October 9, 2009, and October 27, 2009. On each form, a box is checked
signifying that the applicant is a United States citizen. 2 The respondent
acknowledged that the signature on both forms resembled his own.
However, he testified that he was “not sure” if he had completed them,
stating “I don’t remember filling out those forms.” He was also unsure
whether he had checked the citizenship box on both forms, stating, “I don’t
remember what I checked in [the] file.” When further questioned, he
reiterated that he did not remember checking the citizenship box on the
forms but testified, “I don’t think I did.”
    The record also contains proof that in November 2008, the respondent
received a social security card with the restriction that it was “VALID FOR
WORK ONLY WITH DHS AUTHORIZATION.” However, the record
also contains copies of social security cards bearing the respondent’s name
that had been provided to his two employers. Neither card contained the
restrictive language regarding work authorization. When asked about these
cards, the respondent replied that he “did not know” how the employers had
received them. The respondent testified that he received work authorization
in July 2011 but admitted that he had worked before that time.
    The Immigration Judge found that the respondent did not present
credible testimony, citing section 240(c)(4)(C) of the Act, 8 U.S.C.
§ 1229a(c)(4)(C) (2012). He found the “most glaring” problem to be the
respondent’s testimony regarding the I-9 forms he submitted to his former
employers. The Immigration Judge noted that although the respondent
acknowledged that he applied for a job at each company and that it looked
like his signature appeared on both forms, he could not recall checking the
1
   Section 212(a)(6)(C)(ii)(II) of the Act sets forth an exception to this provision.
Neither party has alleged that this exception applies in this case.
2
   In 2008, the DHS amended the Form I-9 to provide separate boxes so that an applicant
must clearly identify whether he or she attests to be a citizen of the United States, a
noncitizen national, a lawful permanent resident, or an alien authorized to work for a
period of time. See Documents Acceptable for Employment Eligibility Verification,

, 76,508 (interim rule Dec. 17, 2008) (Supplementary Information).


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box on the forms signifying that he was a United States citizen. The
Immigration Judge found that the direct and circumstantial evidence of
record established that the respondent did, in fact, fill out the forms and that
he selectively withheld this information at the hearing.
    In addition, the Immigration Judge found the respondent’s testimony
about the social security cards unconvincing because he could not explain
how his employers received copies of the cards, which had apparently been
altered.    The Immigration Judge also considered the respondent’s
unresponsiveness when asked why he had a Missouri driver’s license after
he had testified that he lived with his wife in Kansas. Moreover, the
Immigration Judge found that the respondent had answered other questions
in a nonresponsive and tentative manner, sometimes deliberating for several
moments while contemplating answers to simple “yes” or “no” questions.
    In light of his adverse credibility finding, the Immigration Judge
determined that the respondent did not establish that he was not
inadmissible under section 212(a)(6)(C)(ii)(I) of the Act. Further, the
Immigration Judge found that even if the respondent’s testimony was
credible on these matters, his uncertain testimony would not suffice to
resolve other critical issues regarding his admissibility. The Immigration
Judge therefore concluded that the respondent could not establish eligibility
for adjustment of status. Regarding the respondent’s request for voluntary
departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2012), the
Immigration Judge found that the respondent was ineligible for that relief
because he lacked good moral character on account of his false testimony.
Alternatively, the Immigration Judge determined that the respondent did
not merit a favorable exercise of discretion.
    On appeal, the respondent challenges the adverse credibility
determination and argues that he met his burden of establishing eligibility
for adjustment of status. According to the respondent, the Immigration
Judge made the erroneous assumption that he must have checked the
citizenship box on the I-9 forms because only he would benefit from a
claim that he was a United States citizen. The respondent argues that
employers might also be motivated to check the citizenship box on an
applicant’s behalf because it would allow them to procure workers.
    In addition, the respondent claims that the Immigration Judge should
have examined other documents generated by the employers besides the I-9
forms. He also challenges the Immigration Judge’s reliance on the other
documentary evidence in the record, including the social security cards.
Finally, in a supplemental brief filed during the pendency of the appeal, the
respondent asserts that intervening case law supports the argument that a
Form I-9 should not be admitted as evidence in a removal proceeding.


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                                II. ANALYSIS
    To be eligible for adjustment of status, an applicant has the burden to
show that he is clearly and beyond doubt entitled to be admitted to the
United States and is not inadmissible under section 212(a) of the Act.
See sections 240(c)(2)(A), (4), 245(a) of the Act; Hashmi v. Mukasey, 

 (8th Cir. 2008) (citing Kirong v. Mukasey, 

,
803–04 (8th Cir. 2008)); 

(d) (2014); see also Crocock
v. Holder, 

 (2d Cir. 2012) (per curiam). Specifically, in
this case, the respondent was required to prove clearly and beyond doubt
that he did not falsely represent himself “to be a citizen of the United States
for any purpose or benefit under this Act (including section 274A).”
Section 212(a)(6)(C)(ii)(I) of the Act; see also Crocock v. Holder, 

 (explaining that the applicant for adjustment of status “was required
to prove a negative,” namely, that he did not falsely claim United States
citizenship when he checked the box that indicated he was a citizen or
national).
    It is well established 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. Hashmi
v. Mukasey, 

 (citing Rodriguez v. Mukasey, 

 (8th Cir. 2008)); see also Castro v. Att’y Gen. of U.S., 

,
369 & n.9 (3d Cir. 2012); Ferrans v. Holder, 

 (6th Cir.
2010); Kechkar v. Gonzales, 

 (10th Cir. 2007).

          A. Admissibility of a Form I-9 in Removal Proceedings

    The respondent asserts that a Form I-9 is not admissible as evidence in a
removal proceeding. The United States Court of Appeals for the Eighth
Circuit, in whose jurisdiction this case arises, has recently addressed this
issue. Downs v. Holder, 

 (8th Cir. 2014). The petitioner in
Downs sought to suppress various documents from evidence, including two
I-9 forms in which she had indicated that she was a citizen or national of
the United States. The Immigration Judge denied the motion to suppress
and the Board affirmed that decision.
    Before the court, the petitioner argued that the plain language of section
274A(b)(5) of the Act, 8 U.S.C. § 1324a(b)(5) (2012), which is entitled
“Limitation on Use of Attestation Form,” prohibited the admission of a
Form I-9 in removal proceedings. Section 274A(b)(5) provides in its
entirety as follows:

       A form designated or established by the Attorney General under this subsection
     and any information contained in or appended to such form, may not be used for

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      purposes other than for enforcement of this Act and sections 1001, 1028, 1546, and
      1621 of title 18, United States Code.3

(Emphasis added.)
    According to the petitioner, the phrase “enforcement of this Act” refers
to enforcement of the Immigration Reform and Control Act of 1986,

(a)(1), 

, 3360, 3363 (“IRCA”),
which added section 274A(b)(5) to the Act. However, the Eighth Circuit
held that because section 274A(b)(5) is a section of the Act, the “plain and
unambiguous meaning of the reference to ‘the Act’ is to the [Immigration
and Nationality Act].” 4 Downs v. Holder, 

. The court
therefore concluded that since a removal proceeding regarding a false claim
to citizenship is clearly a proceeding to enforce the Act, section 274A(b)(5)
“allows the admission of I-9 forms into evidence in removal proceedings.”

. The Eighth Circuit’s decision is binding in the respondent’s
case. See Matter of U. Singh, 

 (BIA 2012).
    In any case, we agree with the court’s reasoning that the plain meaning
and unambiguous text of section 274A(b)(5) of the Act permits the use of a
Form I-9 as evidence in immigration proceedings. We are therefore
unpersuaded by the respondent’s argument that the legislative history of the
IRCA indicates that Congress intended otherwise. See Downs v. Holder,

 (explaining that “[a]lthough the legislative history of the
IRCA is informative, it does not override the plain meaning of the
unambiguous text of the [Act]” (citing Chamber of Commerce of U.S.
v. Whiting, 

 (2011))); see also Matter of Briones,

 (BIA 2007) (holding that the “touchstone [of
statutory interpretation] is the plain language of the statute” and that the
Board rarely looks “past the unambiguous meaning of statutory language”).

3
   Section 274A of the Act addresses the “Unlawful Employment of Aliens.” The
Form I-9 was created to comply with that section, which mandated that an “individual
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 Act
or by the Attorney General to be hired, recruited, or referred for such employment.”
Section 274A(b)(2) of the Act; see also 8 C.F.R. § 274a.2(a) (1988) (stating that the
Form I-9 was designated as the form to be used in complying with the requirements of
the statute).
4
   The court noted that the text of published versions of section 274A(b)(5) of the Act
varies. Downs v. Holder, 

 n.3. The original provision in the IRCA states
that a Form I-9 “may not be used for purposes other than for enforcement of this Act,”
but the version in the United States Code substitutes the word “chapter” for “Act.” The
court stated that this did not affect its analysis. 

 We agree.


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    Moreover, we find other support for our reading of the statute, most
notably in section 212(a)(6)(C)(ii)(I) of the Act. This provision explicitly
encompasses violations of section 274A within the inadmissibility grounds,
and the Form I-9 is a specific creation of that section. See supra note 3.
Furthermore, an identical reference to section 274A is included in section
237(a)(3)(D)(i) of the Act, which makes a false claim to citizenship
a ground for deportation.
    In his supplemental brief on appeal, the respondent asserts that recent
case law calls into question whether a Form I-9 is admissible as evidence to
prove that an alien is inadmissible. He cites to several cases, including
Arizona v. United States, 

 (2012), and Lozano v. City of
Hazleton, 

 (3d Cir. 2013). These cases address the degree to
which Federal immigration law preempts various State or local provisions
that pertain to the treatment of aliens who are not authorized to work or
live in the United States. 5 See generally Chamber of Commerce of
U.S. v. Whiting, 

; Keller v. City of Fremont, 

(8th Cir. 2013).
    The petitioner in Downs raised a similar argument. The Eighth Circuit
responded as follows:

      Arizona and Whiting were cases concerning federal preemption of state statutes and
      the use of an I-9 form in a removal proceeding was not an issue raised in either
      case. As such, the decisions do not constitute binding precedent on this issue
      which would overrule the plain meaning of the text of [section] 274A(b)(5).

Downs v. Holder, 

. Since the respondent’s case is governed
by the Eighth Circuit’s decision, his argument that a Form I-9 cannot be
used as evidence in removal proceedings is unavailing.
    We agree with the Eighth Circuit’s rationale in Downs and will continue
to accept the admissibility of I-9 forms as evidence in removal proceedings
nationwide. The Form I-9 has long been recognized as an admissible
document in immigration proceedings, and numerous Federal cases have
held that the form may be used to support charges of removability against
an alien and to determine his or her eligibility for relief from removal.

5
   The respondent cites to a statement of the Supreme Court that “Congress has made
clear, however, that any information employees submit to indicate their work status ‘may
not be used’ for purposes other than prosecution under specified federal criminal statutes
for fraud, perjury, and related conduct.” Arizona v. United States, 

(quoting sections 247A(b)(5), (d)(2)(F) of the Act). However, section 274A(b)(5) was
not relevant to the Court’s discussion in Arizona, and it did not quote the entire section,
which includes the language regarding enforcement of the Act.



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See, e.g., Castro v. Att’y Gen. of U.S., 

 & n.9; Crocock
v. Holder, 

; Ferrans v. Holder, 

; Hashmi
v. Mukasey, 

; Kechkar v. Gonzales, 

; Ateka
v. Ashcroft, 

 (8th Cir. 2004); see also Matter of Guadarrama,

 (BIA 2008); Matter of Lazarte, 

 (BIA
1996). We discern no change of law that would now preclude the use of
the form in removal proceedings.

                 B. False Claim to United States Citizenship

    The Immigration Judge’s adverse credibility determination is not clearly
erroneous. 

(d)(3)(i) (2014); see also Matter of R-S-H-,

, 637 (BIA 2003) (discussing the deferential nature of
clear error review). In reaching his conclusion, the Immigration Judge
properly considered the totality of the circumstances and relied on direct
and circumstantial evidence, including the two I-9 forms with the
respondent’s signature, the unexplained discrepant social security cards, the
respondent’s equivocal testimony, and his demeanor.                See section
240(c)(4)(C) of the Act. Although the respondent argued that he could not
recall checking the citizenship box on either form, the Immigration Judge
was not required to accept his version of events. See Matter of D-R-,

 (BIA 2011) (explaining that an Immigration Judge is
not required to accept a respondent’s assertions, even if plausible, where
there are other permissible views of the evidence based on the record); see
also Matter of Y-L-, 

 (BIA 2007) (stating that an
alien’s intent is a factual finding, which is reviewed for clear error).
    The I-9 forms in evidence, which were completed and submitted to two
different employers several weeks apart, bear similar handwriting and
signatures. Significantly, the respondent never offered an explanation that
satisfied the Immigration Judge regarding the signatures on the forms,
which he conceded resembled his own signature. Also, the respondent did
not satisfactorily explain why both employers would have copies of a social
security card that did not contain the employment limitation found on
a card that he acknowledges is his. While altered social security cards are
not evidence of a false claim to citizenship, the presence of these cards in
the files of two separate employers supports the Immigration Judge’s
adverse credibility finding.
    The respondent suggests that the DHS should have presented evidence
to show who, in fact, completed the I-9 forms in question, including
providing more evidence from the respondent’s employers. However, the
respondent bears the burden of proof to show that he did not make a false
claim to citizenship and that he is clearly and beyond doubt admissible

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under section 212(a)(6)(C)(ii) of the Act. See sections 240(c)(2)(A), (4),
245(a) of the Act; 

(d). He must therefore present
documents or other evidence to support his position and cannot shift the
burden to the DHS by suggesting the evidence that it could have sought to
obtain or that the Immigration Judge should have required.
    As the trier of fact, the Immigration Judge had ample support in the
record for his finding that the respondent made a false claim to citizenship
and is therefore inadmissible under section 212(a)(6)(C)(ii) of the Act. We
agree with his determination that the respondent did not establish his
eligibility for relief from removal. 

(d)(3)(ii).

                             III. CONCLUSION
   The Immigration Judge properly relied on the I-9 forms to find that the
respondent made a false claim to United States citizenship. Consequently,
the respondent has not clearly and beyond doubt demonstrated that he is
admissible to the United States and therefore cannot establish eligibility
for adjustment of status. Furthermore, given the respondent’s lack of
credibility at his hearing concerning the completion of the I-9 forms and the
Immigration Judge’s other findings regarding the forms, we agree that the
respondent’s request for voluntary departure should be denied in the
exercise of discretion. See section 240B(b) of the Act. Accordingly, the
respondent’s appeal will be dismissed.
   ORDER: The appeal is dismissed.




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