Jaen-chavez v. U.S. Attorney Gen.
| Decision Date | 25 February 2011 |
| Docket Number | No. 10-12880,Agency No. A096-741-112,10-12880 |
| Parties | FRITZ JAEN-CHAVEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Petition for Review of a Decision of the
Board of Immigration Appeals
Before BARKETT, HULL and MARCUS, Circuit Judges.
Fritz Jaen-Chavez ("Jaen-Chavez") seeks review of the Board of Immigration Appeals's ("BIA") affirming the Immigration Judge's ("IJ") pretermission of his application for a waiver of inadmissibility and an adjustment of status. After review, we dismiss in part and deny in part the petition.
On May 17, 2002, Jaen-Chavez, a citizen of Peru, entered the United States with authorization to remain until November 17, 2002. After his visa expired, Jaen-Chavez stayed in the United States.
In April 2003, Jaen-Chavez applied for a job at Mountain Fresh Young Chicken in North Carolina. On his employment application, Jaen-Chavez listed a social security number. Jaen-Chavez completed and signed an Employment Eligibility Verification Form I-9. On the Form I-9, Jaen-Chavez checked the box indicating that he attested under penalty of perjury that he was "[a] citizen or national of the United States." As one of his two forms of identification, Jaen-Chavez submitted a U.S. social security card with the number listed on his employment application.
In June 2005, Jaen-Chavez married Melissa Jones, a U.S. citizen. On February 5, 2006, Jaen-Chavez filed an application to adjust his immigrationstatus, pursuant to the Immigration and Nationality Act ("INA") § 245, 8 U.S.C. § 1255, based on his recent marriage. Jaen-Chavez's wife filed an I-130 visa petition on his behalf, which was approved on January 8, 2007. On January 24, 2007, the Department of Homeland Security ("DHS") denied Jaen-Chavez's application for adjustment of status because he had falsely represented himself to be a U.S. citizen in order to gain employment and thus was inadmissible under INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii).
The same day, the DHS served Jaen-Chavez with a Notice to Appear, charging him with removability for: (1) having remained in the United States for a longer time than permitted, pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B); (2) failing to comply with the conditions of the non-immigrant status under which he was admitted, pursuant to INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i); and (3) being an alien who falsely represented himself as a U.S. citizen for a purpose or benefit under federal or state law, pursuant to INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D).
Jaen-Chavez conceded removability, but denied he had falsely claimed to be a U.S. citizen. Jaen-Chavez noted that he was requesting an adjustment of status and a waiver of inadmissibility pursuant to INA § 212(i), 8 U.S.C. § 1182(i).
At his removal hearing, Jaen-Chavez admitted that the social security number he provided on his employment application was false, that he signed the employment application, and that he wrote his name beside a statement certifying that all of the responses provided on the application were correct and truthful. Jaen-Chavez explained that he obtained the false social security card from someone he met while waiting in line for work.
Jaen-Chavez further admitted that he checked the box on the Form I-9 indicating he was a "citizen or national of the United States." Jaen-Chavez explained that he did not know the difference between a "national" and a "citizen," and that he thought that "national" meant "[s]omeone that is here." Jaen-Chavez further stated that he did not understand what "under penalty of perjury" meant and that he signed the Form I-9 without first reading it.
The IJ pretermitted Jaen-Chavez's application for adjustment of status and waiver of inadmissibility, finding Jaen-Chavez removable from the United States pursuant to INA § 237(a)(1)(B), (a)(1)(C)(i), and (a)(3)(D). The IJ found that Jaen-Chavez provided what he knew to be a false social security card in conjunction with the Form I-9. The IJ found "somewhat feeble" Jaen-Chavez's explanation for marking "citizen or national" on the Form I-9 given that he knew the social security card was false and he had one year of college education.
Accordingly, the IJ found that Jaen-Chavez "knew what he was doing" when he checked the "citizen or national" box on the Form I-9.
The IJ concluded that: (1) Jaen-Chavez's false claim to citizenship rendered him inadmissible under INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii); and (2) making a false claim of citizenship was not waivable under INA § 212(i), 8 U.S.C. § 1182(i). Although Jaen-Chavez had not submitted an application for voluntary departure, the IJ concluded that he would deny voluntary departure because Jaen-Chavez used false identification documents and did not provide a current valid document.
The BIA dismissed Jaen-Chavez's appeal, concluding, inter alia, that: (1) Jaen-Chavez was both removable and inadmissible for having made a false claim of citizenship for any purpose or benefit under the INA; (2) Jaen-Chavez knowingly submitted a false social security card along with his Form I-9; (3) because Jaen-Chavez did not know the meaning of the word "national," "he could not have intended to represent himself as a national" on the Form I-9; (4) filling out the Form I-9 to obtain private employment "is to obtain a benefit under the Act"; (5) "[t]here is no available waiver"; (6) Jaen-Chavez was statutorily ineligible for adjustment of status; and (7) because Jaen-Chavez did not requestvoluntary departure before the IJ and had not filed a motion to remand with the BIA to seek voluntary departure, that issue was not before the BIA.
Jaen-Chavez filed this petition for review.
As a threshold matter, we conclude that we lack jurisdiction to review a number of Jaen-Chavez's claims.1 We lack jurisdiction to review the discretionary decisions to deny Jaen-Chavez's application for a waiver of inadmissibility, filed pursuant to INA § 212(i), 8 U.S.C. § 1182(i)(1), and to deny his application for an adjustment of status, filed pursuant to INA § 245, 8 U.S.C. § 1255. See INA § 212(i)(2), 8 U.S.C. § 1182(i)(2); INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). Thus, to the extent Jaen-Chavez's petition seeks review of the Attorney General's discretionary denial of either form of relief, we dismiss his petition.
In addition, we lack jurisdiction to review the following unexhausted claims, which were not argued before the BIA: (1) whether the IJ misallocated the burden of proof; (2) whether the IJ was biased; and (3) whether the governmentfailed to meet its burden of proof with regard to intent to defraud the government. See Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (). Similarly, we lack jurisdiction to review Jaen-Chavez's request for voluntary departure because Jaen-Chavez did not request voluntary departure in proceedings before the IJ. See Galindo-Del Valle v. Att'y Gen., 213 F.3d 594, 599 (11th Cir. 2000). Accordingly, we dismiss the petition as to these claims.
Although we lack jurisdiction to review the denial of discretionary relief, we retain jurisdiction to review questions of law, such as statutory eligibility for discretionary relief, and constitutional claims. See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Alvarado v. U.S. Att'y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010) (). However, we do not review abuse-of-discretion claims "merely couched in constitutional language" or constitutional claims that are not colorable. Arias v. U.S. Att'y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). "For a constitutional claim to be colorable, the alleged violation need not be substantial, but the claim must have some possible validity." Id. at 1284 n.2 (quotation marks omitted).
Jaen-Chavez raises two constitutional claims, neither of which is colorable. First, Jaen-Chavez argues that he was singled out for removal because he is an Hispanic male married to a U.S. citizen, in violation of the Due Process and Equal Protection Clauses. Jaen-Chavez produced no evidence whatsoever indicating that DHS instituted removal proceedings against him or any other Hispanic male based on a discriminatory motive.
Second, Jaen-Chavez contends that he was deprived of employment in violation of the Due Process Clause. Even assuming arguendo that Jaen-Chavez had a constitutional right to employment, he identified no specific due process violation or how proceedings under the immigration statutes deprived him of that right. Accordingly, we dismiss the petition with respect to Jaen-Chavez's constitutional claims.
Jaen-Chavez argues that the standard of proof applicable in criminal cases should apply in removal proceedings. This claim has no merit.
Congress explicitly provided that the government must prove that an alien is removable "by clear and convincing evidence." INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A). Moreover, the Supreme Court has concluded that "[a] deportation proceeding is a purely civil action to determine eligibility to remain inthis country, not to punish an unlawful entry," and, thus, "[c]onsistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing." INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S. Ct. 3479, 3483 (1984). This Court also has refused to incorporate the protections afforded to criminal defendants into removal proceedings, which are inherently civil in...
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