Patel v. U.S. Attorney Gen., No. 17-10636

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: TJOFLAT, Circuit Judge
• Citation: 971 F.3d 1258
• Parties: Pankajkumar S. PATEL, Jyotsnaben P. Patel, Nishantkumar Patel, Petitioners, v. UNITED STATES ATTORNEY GENERAL, Respondent.
• Decision Date: 19 August 2020
• Docket Number: No. 17-10636

971 F.3d 1258

Pankajkumar S. PATEL, Jyotsnaben P. Patel, Nishantkumar Patel, Petitioners,
v.
UNITED STATES ATTORNEY GENERAL, Respondent.

No. 17-10636

United States Court of Appeals, Eleventh Circuit.

August 19, 2020

971 F.3d 1261

Robert Scott Oswald, The Employment Law Goup, PC, WASHINGTON, DC, Ira J. Kurzban, John Patrick Pratt, Edward Fortunato Ramos, Kurzban Kurzban Tetzeli & Pratt, PA, CORAL GABLES, FL, for Petitioners.

Margot Carter, Meadow W. Platt, Sara J. Bayram, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, WASHINGTON, DC, Anthony W. Norwood, U.S. Department of Justice, Office of Immigration Litigation, WASHINGTON, DC, Meadow W. Platt, U.S. Department of Justice, Civil Division, Appellate Staff, WASHINGTON, DC, Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, ATLANTA, GA, for Respondent.

Russell Abrutyn, Abrutyn Law, PLLC, BERKLEY, MI, Rebecca Sharpless, Attorney, University of Miami School of Law, CORAL GABLES, FL, for Amicus Curiae.

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX5-851

Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, TJOFLAT, ED CARNES, and MARCUS, Circuit Judges.^*

TJOFLAT, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, ED CARNES, and MARCUS, Circuit Judges, joined.

TJOFLAT, Circuit Judge:

Pankajkumar Patel seeks review of a final order of removal from the Board of Immigration Appeals ("BIA"). Patel sought discretionary relief under 8 U.S.C. § 1255(i), which permits an alien who entered without inspection to obtain relief from removal if, among other things, the alien is the beneficiary of a labor certification. The BIA determined that Patel was ineligible for such relief because he falsely represented himself as a citizen for a benefit when he applied for a Georgia driver's

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license. See 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Patel now petitions, asking us to resolve two questions. First, he argues that, as a factual matter, he did not falsely represent himself as a citizen because he merely checked the wrong box on the license application form. Second, Patel argues that his misrepresentation was not material because the benefit, a Georgia driver's license, is available to non-citizens.

This case requires us to determine the scope of a jurisdiction-stripping provision in the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B). That provision provides that "no court shall have jurisdiction to review" "any judgment regarding the granting of relief" for certain enumerated categories of discretionary relief. 8 U.S.C. § 1252(a)(2)(B)(i). Section 1255, the relief for which Patel applied, is one of the enumerated categories in § 1252(a)(2)(B)(i).

In our first published opinion to interpret § 1252(a)(2)(B)(i), we drew a distinction between "appellate review of discretionary decisions" and "review of non-discretionary legal decisions that pertain to statutory eligibility for discretionary relief." Gonzalez-Oropeza v. U.S. Attorney General , 321 F.3d 1331, 1332 (11th Cir. 2003). Since then, we have held in numerous cases that we lack jurisdiction to review discretionary determinations underlying discretionary relief, while we retain jurisdiction to review non-discretionary decisions underlying that relief. The problem: that interpretation is based on the predecessor version of § 1252(a)(2)(B) and is unmoored from the current statutory language. Today, we overrule such precedent, holding that we are precluded from reviewing "any judgment regarding the granting of relief under [ 8 U.S.C §§] 1182(h), 1182(i), 1229b, 1229c, or 1255" except to the extent that such review involves constitutional claims or questions of law. See 8 U.S.C. §§ 1252(a)(2)(B)(i) & (D).

Patel's petition presents both a factual challenge and a question of law. We hold that § 1252(a)(2)(B)(i) precludes our review of the factual challenge. We retain jurisdiction to review the question of law related to whether a Georgia driver's license is a material benefit.

I.

Patel is a citizen of India who entered the United States without inspection. In 2012, the Department of Homeland Security issued a notice to appear to Patel charging him as removable for being present in the United States without inspection. In a subsequent removal proceeding before an immigration judge, Patel conceded that he was removable, but he sought discretionary relief from removal by applying for adjustment of status under 8 U.S.C. § 1255(i). Section 1255 permits an alien who entered without inspection to obtain relief from removal if, among other things, the alien is the beneficiary of a labor certification. See § 1255(i)(1)(B)(ii).¹

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Patel qualified to apply for relief pursuant to § 1255(i) as he had an approved I-140 employment authorization document.²

The Attorney General may adjust an alien's status to that of a lawful permanent resident if the alien meets certain requirements. See § 1255(i) ; see also 8 C.F.R. § 1245.10(b) (listing the eligibility requirements for an alien who entered without inspection and is seeking adjustment of status based on a labor certification). The parties agree that Patel meets all the statutory criteria for adjustment of status except one: the applicant must show "clearly and beyond doubt" that he is not inadmissible. See 8 U.S.C. § 1229a(c)(2) (in a removal proceeding, an alien applying for admission "has the burden of establishing ... that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible").

Patel's admissibility is in doubt because he falsely represented that he was a U.S. citizen when he applied for a Georgia driver's license in 2008. When applying for the license, Patel checked a box indicating that he is a U.S. citizen. This incident arguably renders Patel inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(ii)(I), which says:

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.

The BIA has interpreted this section to require three elements: (1) a false representation of citizenship, (2) that is material to a purpose or benefit under the law, (3) with the subjective intent of obtaining the purpose or benefit. Matter of Richmond , 26 I. & N. Dec. 779, 786–87 (B.I.A. 2016).

There was no dispute that Patel made a false representation of citizenship. Nor was there any dispute that a driver's license is a benefit under state law. Patel challenged the applicability of the statute on two grounds: (1) he lacked the requisite subjective intent to falsely represent himself as a citizen, and (2) the false representation was not material.

At the removal hearing, Patel argued that he did not have the requisite subjective intent because he simply made a mistake. To prove that it was a mistake, Patel claimed that he provided his alien registration number and his employment authorization card to the Georgia Department of Motor Vehicles with his driver's license application. Patel argued that it would have made no sense to document his non-citizen status if his goal were to pose as a citizen. Patel also argued that a false representation

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of citizenship was not material to obtaining a driver's license because an alien is eligible to receive a driver's license from Georgia. As proof, Patel observed that he had previously received a license from Georgia.

The Immigration Judge rejected Patel's arguments. The Immigration Judge determined that Patel was not credible. He was evasive when testifying and would not explain to the Court exactly how he had made a mistake. Furthermore, the Immigration Judge examined the application and determined that Patel did not write his alien registration number on the application. The application asks about citizenship and directs the applicant to provide his alien registration number if he is not a citizen. Patel marked that he was a citizen and did not write down his alien registration number. The application also does not reflect that Patel provided his employment authorization card. In the section on the form where the Georgia official is to list the documents accepted, the only document mentioned is Patel's prior Georgia driver's license. In short, the evidence contradicted Patel's testimony, which the Immigration Judge already suspected was not candid, so the Immigration Judge did not believe Patel's claim that he made a mistake. The Immigration Judge found that Patel willfully and purposefully indicated that he was a U.S. citizen.

The Immigration Judge also held that Patel failed to prove that his false representation was immaterial because he failed to meet his burden of proving that he was otherwise eligible for a driver's license. The fact that Patel had previously obtained a license in Georgia is inconclusive because Patel might have misrepresented his citizenship on...