In re Richmond

• Court: U.S. DOJ Board of Immigration Appeals
• Writing for the Court: COLE, Board Member
• Citation: In re Richmond, 26 I&N Dec. 779, Interim Decision #3867 (B.I.A. Jul 28, 2016)
• Decision Date: 28 July 2016
• Docket Number: Interim Decision #3867
• Parties: Matter of Keon RICHMOND, Respondent

26 I&N Dec. 779

Matter of Keon RICHMOND, Respondent

Interim Decision #3867

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

July 28, 2016

(1) A false claim to United States citizenship falls within the scope of section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012), where there is direct or circumstantial evidence that the false claim was made with the subjective intent of obtaining a purpose or benefit under the Act or any other Federal or State law, and where United States citizenship actually affects or matters to the purpose or benefit sought.

(2) There is a distinction between achieving a "purpose" and obtaining a "benefit" under section 212(a)(6)(C)(ii)(I) of the Act.

(3) Avoiding removal proceedings qualifies as a "purpose" within the meaning of section 212(a)(6)(C)(ii)(I) of the Act.

FOR RESPONDENT: Ryan Muennich, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Sue Chen, Senior Attorney

BEFORE: Board Panel: COLE, GUENDELSBERGER, and MALPHRUS, Board Members.

COLE, Board Member:

This case is before us on remand from the United States Court of Appeals for the Second Circuit for further consideration of the respondent's inadmissibility under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012), and his eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2012). Richmond v. Holder, 714 F.3d 725 (2d Cir. 2013). The respondent's appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Trinidad and Tobago who was admitted to the United States on May 3, 2001, as a nonimmigrant visitor. He was convicted on May 3, 2005, of assault in the second degree under section 120.05(3) of the New York Penal Law. This conviction was overturned by the New York State Appellate Division on January 17, 2007.

The Department of Homeland Security ("DHS") initiated removal proceedings on January 5, 2007, charging that the respondent is removable as a nonimmigrant who overstayed his visa and an alien convicted of an aggravated felony under sections 237(a)(1)(B) and (2)(A)(iii) of the Act, 8 U.S.C. §§ 1227(a)(1)(B) and (2)(A)(iii) (2006). In a hearing before the Immigration Judge on March 13, 2007, the respondent conceded that he was removable for overstaying his visa, denied the aggravated felony charge, and sought adjustment of status based on an approved immigrant visa petition filed by his United States citizen spouse.

The DHS argued that the respondent was ineligible for adjustment of status because he was inadmissible under section 212(a)(6)(C)(ii)(I) of the Act based on his prior false claim to United States citizenship.¹ The DHS submitted evidence that in 2005, the respondent was interviewed by two DHS officers on two separate occasions while in State custody and that, during both interviews, the respondent swore that he was a United States citizen, having been born in Brooklyn, New York.²

The respondent admitted that he was interviewed by DHS officers but testified that he had no idea why he was being interviewed. In this regard, the respondent also testified that he had no fear of being deported because his mother had told him he was a United States citizen. Although the respondent admitted that he used a Trinidadian passport to enter the United States, he claimed that he could not read at that time and therefore did not know that the passport was issued by Trinidad and Tobago.

The Immigration Judge sustained the overstay charge of removability under section 237(a)(1)(B) of the Act but determined that the DHS had not established the respondent's removability under section 237(a)(2)(A)(iii) for conviction of an aggravated felony. The Immigration Judge also found the respondent ineligible for adjustment of status because he determined that the false claims to United States citizenship he made to the DHS officers were to obtain a "benefit" pursuant to section 212(a)(6)(C)(ii)(I) ofthe Act. According to the Immigration Judge, the false claim "completely exempt[ed] the respondent from further scrutiny or investigation by Immigration Officers and would of course be the complete defense to any Immigration related proceedings seeking to remove the respondent from the United States." The Immigration Judge also did not find the respondent's claim that he believed he was a United States citizen to be credible in light of the circumstances of his admission to the United States, contradictory information in a presentence report, and the lack of corroborating testimony from his mother.³ The Immigration Judge therefore ordered the respondent removed to Trinidad and Tobago.

The respondent appealed. We dismissed his appeal, affirming the Immigration Judge's finding that the respondent is ineligible for adjustment of status. We found no clear error in the Immigration Judge's adverse credibility finding as to the respondent's claim that he had a good faith belief that he was a United States citizen. We held that the respondent's false claim to citizenship to avoid being placed in removal proceedings had been made for a "purpose or benefit" under the Act and rendered him inadmissible under section 212(a)(6)(C)(ii)(I).⁴ The respondent filed a petition for review of our decision with the Second Circuit, and on April 30, 2013, the court vacated our decision and remanded the proceedings for us to provide an authoritative analysis of section 212(a)(6)(C)(ii)(I). Richmond, 714 F.3d at 729-31.⁵

II. ISSUES

In this decision, we will (1) interpret the meaning and scope of the phrase "for any purpose or benefit under this Act . . . or any other Federalor State law" under section 212(a)(6)(C)(ii)(I) of the Act; (2) decide if there is a distinction in this provision between achieving a "purpose" and obtaining a "benefit"; and (3) determine whether avoiding removal proceedings qualifies as such a "purpose" or a "benefit."

III. POSITIONS OF THE PARTIES

The respondent argues that the plain language of the statutory phrase "for any purpose or benefit under this Act . . . or any other Federal or State law" in section 212(a)(6)(C)(ii)(I) of the Act was intended to encompass only those false claims to United States citizenship made to obtain or achieve "identifiable" purposes or benefits enumerated in the Act, or any other Federal or State law, such as obtaining a passport, a Federal student loan, or employment. He contends that avoiding a negative legal consequence—such as removal proceedings—is not enumerated in the Act and is therefore not a cognizable "purpose or benefit." He also argues that to hold otherwise would render the phrase "purpose or benefit" in section 212(a)(6)(C)(ii)(I) of the Act mere surplusage because all false claims to citizenship carry with them the benefit of avoiding potential removal proceedings.

In addition, the respondent asserts that a false claim to citizenship need not be material to the "purpose or benefit" being sought. Even assuming that it must be material, the respondent contends that all false claims made to the DHS to avoid removal proceedings are immaterial because the DHS conducts independent investigations of citizenship claims. Finally, the respondent argues that a false claim must be made knowingly and with the subjective intent of achieving or obtaining a cognizable "purpose or benefit."

The DHS argues that section 212(a)(6)(C)(ii)(I) of the Act encompasses any false claim to citizenship that is made with the subjective intent to achieve a purpose or obtain a benefit "under [the] Act . . . or any other Federal or State law," which requires that the purpose or benefit be actually governed by some law, and the false claim must objectively matter. In addition, the DHS views the phrase "purpose or benefit" as broadly encompassing not only false claims made to obtain "affirmative or positive benefits" under the Act and any other Federal or State law but also misrepresentations made to avoid negative legal consequences—including removal proceedings under the Act.

IV. ANALYSIS

A. Statutory Language

In interpreting statutory language, we review whether it has a plain and unambiguous meaning by referring "to the [statutory] language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

Section 212(a)(6)(C)(ii)(I) was added to the Act by section 344(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-637. The amendment was proposed to address abuse in the employment verification process by aliens, as well as the fraud and abuse committed by illegal aliens to obtain public services and benefits that are limited to United States citizens. H.R. Rep. No. 104-828, at 199 (1996) (Conf. Rep.) (Joint Explanatory Statement), 1996 WL 563320, at *199; 142 Cong. Rec. 24,783 (1996); 142 Cong. Rec. 10,030 (1996); see also Castro v. Att'y Gen. of U.S., 671 F.3d 356, 368-69 (3d Cir. 2012); Matter of Bett, 26 I&N Dec. 437, 442 (BIA 2014) (concluding that section 212(a)(6)(C)(ii)(I) of the Act "explicitly encompasses violations of section 274A" of the Act, 8 U.S.C. § 1324a (2012), which delineates the employment verification process).

Section 212(a)(6)(C)(ii)(I) of the Act contains three components. An alien is inadmissible under this provision if he or she: (1) "falsely represents, or has falsely represented, himself or herself to be a citizen of the United States"; (2) "for any purpose or benefit"; (3) "under th[e] Act . . . or any other Federal or State law."

1. False Representation of Citizenship

The plain language of section 212(a)(6)(C)(ii)(I) of the Act that any alien who "falsely represents, or has falsely represented himself...