Ateka v. Ashcroft, 03-2962.

• Decision Date: 24 September 2004
• Docket Number: No. 03-2962.,03-2962.
• Parties: Elija Kebaso ATEKA, Petitioner, v. John ASHCROFT, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

384 F.3d 954

Elija Kebaso ATEKA, Petitioner, v. John ASHCROFT, Respondent.

No. 03-2962.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2004.

Filed: September 24, 2004.

Petition for review from the Board of Immigration Appeals.

Phillip Frederick Fishman, argued, Minneapolis, MN (Sonseere Henton Goldenberg, on the brief), for petitioner.

Jennifer Paisner, argued, Washington, D.C. (Peter D. Keisler and David V. Bernal, on the brief), for respondent.

Before MURPHY, BRIGHT, and MELLOY, Circuit Judges.

MURPHY, Circuit Judge.

Elija Kebaso Ateka, a native and citizen of Kenya, petitions for review from a final order of the Board of Immigration Appeals affirming an immigration judge's ruling that he was ineligible for lawful permanent resident status because he had made a false claim of citizenship on an I-9 employment eligibility form. We deny the petition.

Ateka entered the United States in August 1996 on a nonimmigrant student visa. Instead of attending school in North Carolina as authorized, he moved to Minnesota and got a job as a nurse's aide at the Southview Walker nursing home in May 1997. In order to get the job Ateka had to fill out a Form I-9 in March 1997 relating to his employment eligibility, and he checked the first box on the form to indicate that he was "a citizen or national of the United States." In July 1997 Ateka married a United States citizen, and his wife subsequently filed a visa petition on his behalf concurrent with his application for adjustment of status.

The Immigration and Naturalization Service (INS) interviewed Ateka in January 1998 about his eligibility for adjustment of status. When the INS officer asked whether he had made a false claim to United States citizenship on his Form I-9, he answered three times that he had. He said he had done so because "[he] needed to survive, [he] had no money, [he] had no other options." On May 13, 1998, the INS denied Ateka's adjustment of status application and charged him with removability for overstaying his student visa and for falsely claiming United States citizenship to obtain a benefit under the Immigration and Nationality Act or other federal or state law. At a hearing on September 22, 1998, Ateka conceded removability for remaining longer than permitted, but he denied having falsely claimed United States citizenship. He requested relief from removal and adjustment of status to that of permanent resident under 8 U.S.C. § 1255.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was enacted on September 30, 1996, some time before Ateka filled out his Form I-9. IIRIRA provides in part 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 chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.

8 U.S.C. § 1182(a)(6)(C)(ii)(I). Section 1324a of the statute makes it unlawful knowingly to hire or employ any alien who is not authorized to work in the United States. See 8 U.S.C. § 1324a. The immigration judge concluded that under IIRIRA an alien who has falsely represented himself to be a United States citizen in order to procure employment is inadmissible to the United States. He found Ateka inadmissible because he had made such a false representation and concluded that he was therefore ineligible for adjustment of status under 8 U.S.C. § 1255(a).¹ Ateka appealed, and a member of the Board of Immigration Appeals affirmed the immigration judge's decision without opinion, pursuant to 8 C.F.R. 1003.1(a)(7). Ateka timely petitioned for review.

Ateka argues that the Board erred in finding that he had made a false representation of citizenship, that it misapplied the law on the legal consequences of such a misrepresentation, and it should not have affirmed without opinion. We treat the immigration judge's opinion as that of the Board when it has affirmed without a written opinion. See 8 C.F.R. § 1003.1(a)(7); Dominguez v. Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir.2003). The Board's findings of fact will be disturbed only if unsupported by substantial evidence. Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir.2004). We review the Board's conclusions of law de novo, with substantial deference to its interpretations of statutes and regulations administered by the agency. Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002).

Ateka contends that when he checked the box on the Form I-9 indicating that he was a "citizen or national of the United States," he was making what he thought might be the truthful representation that he was a "national of the United States." The immigration judge found this claim not credible in light of Ateka's multiple admissions to an INS officer that he had made a false representation of United States citizenship on his Form I-9 in order to procure employment. At his interview Ateka initially did not remember which box he had checked on the form, and he never suggested to the INS officer that he thought he was truthfully representing that he was a national of the United States. Moreover, in his testimony before the immigration judge he admitted that he did not know what a "national" was and that he had knowingly misrepresented his employment eligibility when he completed the Form I-9. Given his prior statements and his testimony, there was substantial evidence to support the immigration judge's finding that Ateka had intentionally made a false representation of United States citizenship in order to procure employment.

Ateka also now argues that making a false representation of citizenship in order to procure employment does not necessarily make an alien inadmissible because employment is not a "purpose or benefit under [the Immigration and Nationality Act] or any other Federal or State law." Ateka failed to raise this argument before the immigration judge or in his appeal to the Board. He in fact explicitly stated in his filings before the Board that his appeal raised "the sole question of whether the mere checking of the first box on a Form I-9 ... can be interpreted as constituting an unequivocal false claim to U.S. citizenship."² The Attorney General contends that we cannot consider Ateka's "purpose or benefit" argument since it was not raised before the Board.

The Immigration and Naturalization Act provides that a court may review a final order of removal only if "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). If a petitioner fails to raise a particular issue when he appeals to the Board and has not presented the Board with the need or opportunity to address that issue,...