BIA Finds I-9 Admissible in Removal Proceedings

In Matter of Bett, 26 I. & N. Dec. 437 (BIA Oct. 30, 2014), the Board of Immigration Appeals (BIA or Board) held that 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.

The respondent, a native and citizen of Kenya, was admitted to the U.S. in August 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 INA § 237(a)(1)(C)(i) [8 USCA § 1227(a)(1)(C)(i)], as an alien admitted as a nonimmigrant who failed to maintain or comply with the conditions of his status. In a hearing before an immigration judge (IJ), the respondent applied for adjustment of status as the beneficiary of a visa petition filed on his behalf by his U.S. citizen spouse, which was approved on May 31, 2011. DHS opposed the application, asserting that the respondent was not eligible to adjust his status because he was inadmissible as an alien who falsely represented himself to be a U.S. citizen under INA § 212(a)(6)(C)(ii)(I) [8 USCA § 1182(a)(6)(C)(ii)(I)], which provides that “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.).

The record includes evidence that the respondent filed I-9, Employment Eligibility Verification, forms with two different employers in October 2009. On each form, a box is checked signifying that the applicant is a U.S. citizen. The respondent acknowledged that the signature on both forms resembled his own; however, he testified that he was unsure if he completed them, that he did not remember doing so, and that he did not believe he checked the citizenship box on the forms. 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 of which 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 IJ found the respondent did not present credible testimony and that he was removable on his own admissions. The IJ also denied his application for adjustment of status under INA § 245(a) [8 USCA § 1255(a)] because he did not establish that he was admissible to the U.S. In doing so, the IJ found that the direct and circumstantial evidence of record established that the respondent did, in fact, fill out the I-9 forms and that he selectively withheld this information at the hearing. The IJ also found the respondent’s testimony about the social security cards unconvincing. Moreover, the IJ found that the respondents answer to his question about why he had a Missouri driver’s license when he testified that he lived with his wife in Kansas and his answers to other questions to be nonresponsive or tentative. The IJ also found the respondent ineligible for voluntary departure because he lacked good moral character in light of his false testimony.

The respondent appealed, challenging the IJ’s adverse credibility determination and arguing that he had met his burden of establishing eligibility for adjustment of status. He also argued that intervening case law supported the argument that an I-9 form should not be admitted as evidence in a removal proceeding.

The Board dismissed the appeal. Temporary Board Member Ellen C Liebowitz delivered the decision for the panel which included Board Members Hugh Mullane and Ana Landazabal Mann, noting preliminarily that (1) 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 U.S. and is not inadmissible under INA § 212(a); (2) 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)”; and (3) 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 INA.

In rejecting the respondent’s contention that a Form I-9 is not admissible as evidence in removal proceedings, the Board observed that the U.S. Court of Appeals for the Eighth Circuit, the circuit in which this proceeding arose, recently rejected this contention in Downs v. Holder, 758 F.3d 994 (8th Cir. 2014). The Eighth Circuit rejected the argument that exclusion of the I-9 form is required by8 USCA § 1324a(b)(5), which was added by the Immigration Reform and Control Act (IRCA) and which reads as follows: “A form designated or established by the Attorney General under this subsection … may not be used for purposes other than for enforcement of this Act and sections 1001, 1028, 1546 and 1621 of Title 18 [Criminal Code].” The Eighth Circuit ruled that “enforcement of this Act” refers to enforcement of the entire INA not, as Downs contented, enforcement of the IRCA. The court indicated that it found nothing in the INA or the IRCA to support Downs’ contention that the reference to “this Act” is to the IRCA. Rather, it found the “plain and unambiguous meaning” of the reference to “the Act” was to the INA. The Board pointed out that this decision is binding in the present case and further stated its agreement, in any event, with the Eighth Circuit’s reasoning that the plain meaning and unambiguous text of § 1324a(b)(5) permits the use of a Form I-9 as evidence in immigration proceedings. Accordingly, the Board held that I-9s are admissible as evidence in removal proceedings nationwide.

The Board also found that the IJ’s adverse credibility determination was not clearly erroneous as the IJ 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. In this regard, the BIA noted that, although the respondent argued that he could not recall checking the citizenship box on either form, the IJ was not required to accept his version of events. Moreover, the Board pointed out that the I-9s in evidence, which were completed and submitted to two different employers several weeks apart, bear similar handwriting and signatures and the respondent never offered an explanation that satisfied the IJ regarding the signatures on the forms, which he conceded resembled his own signature. Further, the Board said, the respondent never satisfactorily explained 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 Board found that the presence of these cards in the files of two separate employers supported the IJ’s adverse credibility finding.

The Board reiterated that 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, which means that he must present documents or other evidence to support his position and cannot shift the burden to the DHS by suggesting evidence that DHS could have sought to obtain or that the IJ should have required. Having found that the IJ properly relied on the I-9s to find that the respondent made a false claim to U.S. citizenship, the Board concluded that the respondent did not clearly and beyond doubt demonstrate that he is admissible to the U.S. and therefore he cannot establish eligibility for adjustment of status. Furthermore, given the respondent’s lack of credibility at his hearing and the IJ’s other findings regarding the forms, the Board agreed that his request for voluntary departure should be denied in the exercise of discretion. Accordingly, the appeal was dismissed.

J. Bradley Pace, Mission, Kansas represented the respondent. Kimberlee L. Moore, Assistant Chief Counsel, appeared for DHS.

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