Diaz-Jimenez v. Sessions

• Decision Date: 30 August 2018
• Docket Number: No. 15-73603,15-73603
• Citation: 902 F.3d 955
• Parties: David Israel DIAZ-JIMENEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

902 F.3d 955

David Israel DIAZ-JIMENEZ, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-73603

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2017, San Francisco, California

Filed August 30, 2018

Alan Hutchison (argued), Law Office of Alan Hutchison, Reno, Nevada, for Petitioner.

Victor M. Lawrence (argued) and Emily Ann Radford, Assistant Directors; Kohsei Ugumori, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX4-379

Before: Edward Leavy, William A. Fletcher, and Richard A. Paez, Circuit Judges.

W. FLETCHER, Circuit Judge:

David Israel Diaz-Jimenez ("Diaz") petitions for review of the decision of the Board of Immigration Appeals ("BIA") upholding his order of removal. The Immigration Judge ("IJ") concluded that Diaz was removable because he made a false claim of United States citizenship to obtain private employment, in violation of 8 U.S.C. § 1182(a)(6)(C)(ii)(I) of the Immigration and Nationality Act ("INA"). The BIA dismissed Diaz’s appeal, writing 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." There is no basis in the record for concluding that Diaz "represent[ed] himself as a citizen on a Form I–9." Because we conclude that removability under § 1182(a)(6)(C)(ii)(I) because of a false representation for a "purpose or benefit" under 8 U.S.C. § 1324a must be based on such a representation on a Form I–9, we grant Diaz’s petition for review and remand for further proceedings.

I. Background

Diaz is a native and citizen of Mexico. In July 2013, he was served a Notice to Appear ("NTA"), alleging illegal entry into the United States on or about September 15, 1993. The NTA charged four grounds of removal: (1) under 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without having been admitted or paroled, or for having arrived in the United States at a "time or place other than as designated by the Attorney General"; (2) under § 1182(a)(6)(C)(ii)(I), for "falsely represent[ing]" himself to be a citizen of the United States for a "purpose or benefit" under federal or state law; (3) under § 1182(a)(2)(A)(i)(I), for being convicted of a crime involving moral turpitude; and (4) under § 1182(a)(6)(C)(i), for seeking to procure a benefit under the INA "by fraud or willfully misrepresenting a material fact."

Diaz conceded before an IJ that he was removable under the first ground, but denied removability under the others. The IJ held that Diaz was removable under the first and second charges—unlawful entry and false claim of citizenship. The IJ refused to sustain the third charge—conviction of a crime involving moral turpitude. Finally, the IJ wrote that it "necessarily follow[ed]" from the second charge that Diaz was inadmissible under the fourth charge—fraudulent or willful misrepresentation for a benefit under the INA. The IJ denied Diaz’s application for voluntary departure.

Diaz appealed to the BIA, contending that the IJ had erred in concluding that he was removable under § 1182(a)(6)(C)(ii)(I) for making a false representation of citizenship for a purpose or benefit under state or federal law. The BIA dismissed Diaz’s appeal. It wrote:

[Diaz’s] sole contention is that he is not removable pursuant to section 212(a)(6)(C)(ii) of the Act, 8 U.S.C. § 1182(a)(6)(C)(ii), inasmuch as a false claim to United States citizenship to obtain employment does not fall with[in] the statute. However, the Board held subsequent to the hearing 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. See Matter of Bett , 26 I&N Dec. 437 (BIA 2014).

The BIA noted that the IJ had not sustained the third charge, and concluded that the IJ had not ruled on the fourth charge.

Diaz’s only contention before us is that the BIA erred in upholding the IJ’s decision that he was removable under § 1182(a)(6)(C)(ii)(I). He concedes that he is removable under § 1182(a)(6)(A)(i) (unlawful entry). However, his petition is not moot because different and more severe consequences flow from being found removable under § 1182(a)(6)(C)(ii)(I) (false claim of citizenship).

II. Standard of Review

"We review the BIA’s legal determinations de novo and its factual findings for substantial evidence." Kyong Ho Shin v. Holder , 607 F.3d 1213, 1216 (9th Cir. 2010).

III. Discussion

The section of the INA at issue, 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.

Before the IJ and in his brief to the BIA, Diaz principally argued that private employment is not a "purpose or benefit" within the meaning of § 1182(a)(6)(C)(ii)(I). Diaz also argued to the BIA, in the alternative, that a false representation of citizenship under § 1182(a)(6)(C)(ii)(I) for the purpose of obtaining private employment requires that the representation be made "under penalty of perjury" on a "designated or established" form, as provided under 8 U.S.C. § 1324a(b)(2). As described above, the BIA responded 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."

Diaz makes both arguments to us. We discuss them in turn.

A. Private Employment as a "Purpose or Benefit" under the INA

Diaz argues that private employment is not a "purpose or benefit" within the meaning of § 1182(a)(6)(C)(ii)(I). We disagree.

If § 1182(a)(6)(C)(ii)(I) referred only to a "purpose or benefit under ... Federal or State law," we would conclude that "purpose or benefit" does not include private employment. However, § 1182(a)(6)(C)(ii)(I) contains an additional clause—"(including section 1324a of this title)"—specifying a particular "purpose or benefit" that would not otherwise have been within the scope of the statute. "[S]ection 1324a of this title" refers to 8 U.S.C. § 1324a, entitled "Unlawful employment of aliens."

Section 1324a makes it unlawful to knowingly hire an "unauthorized alien." 8 U.S.C. § 1324a(a)(1)(A). An "unauthorized alien" is an alien who at the time of employment is neither lawfully admitted for permanent residence nor authorized to work in the United States. Id. § 1324a(h)(3). Section 1324a requires employers to screen for unauthorized aliens using an "[e]mployment verification system." Id. § 1324a(b) ; see H.R. Rep. No. 99-1000, at 88 (1986) (Conf. Rep.). Section 1324a covers federal employment, see 8 U.S.C. § 1324a(a)(7), but its principal concern is private employment.

We conclude that by specifically referencing § 1324a in the text of § 1182(a)(6)(C)(ii)(I), Congress expressed an intent to make private employment a qualifying "purpose or benefit." In so concluding, we join other circuits that have reached the same conclusion. See, e.g. , Rodriguez v.Mukasey , 519 F.3d 773, 777 (8th Cir. 2008) (holding 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"); see also Dakura v. Holder , 772 F.3d 994, 999 (4th Cir. 2014) (collecting cases). The BIA also so concluded in Matter of Bett , 26 I. & N. Dec. 437, 440 (BIA 2014), holding 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."

B. False Representation of Citizenship under § 1324a

Diaz further argues that even if private employment qualifies as a "purpose or benefit," he has not made a false representation of citizenship for purposes of § 1324a. Section 1324a(b)(2) provides:

Individual attestation of employment authorization

The individual [seeking employment] 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 chapter or by the Attorney General to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a hand-written or an electronic signature.

8 U.S.C. § 1324a(b)(2). No other subsection of § 1324a imposes an obligation on a person seeking employment, and no other subsection refers to a representation of citizenship. Diaz argues that he is removable under § 1182(a)(6)(C)(ii)(I) only if he made a false representation of citizenship on "the form designated or established" under § 1324a(b)(2). For the reasons that follow, we agree.

1. Exhaustion Before the BIA

Before reaching the merits of Diaz’s argument, we must determine whether he has "exhausted all administrative remedies available ... as of right." Puga v. Chertoff , 488 F.3d 812, 815 (9th Cir. 2007) (quoting 8 U.S.C. § 1252(d)(1) ). To satisfy the exhaustion requirement, Diaz needed to "put the BIA on notice" in his appeal from the IJ’s removal order. Ren v. Holder , 648 F.3d 1079, 1083 (9th Cir. 2011) (quoting Moreno-Morante v. Gonzales , 490 F.3d 1172, 1173 n.1 (9th Cir. 2007) ).

"We do not employ the exhaustion doctrine in a formalistic manner." Id. (quoting Figueroa v. Mukasey , 543 F.3d 487, 492 (9th Cir. 2008) ). Thus, while "[a] petitioner cannot satisfy the exhaustion requirement by making a general challenge" to the BIA’s decision, the petitioner "need not ... raise the precise argument below." Garcia v. Lynch , 786 F.3d 789, 793 (9th Cir. 2015) (per curiam) (...