Patel v. U.S. Attorney Gen.

• Citation: 917 F.3d 1319
• Decision Date: 06 March 2019
• Docket Number: No. 17-10636,17-10636
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Pankajkumar S. PATEL, Jyotsnaben P. Patel, Nishantkumar Patel, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.

917 F.3d 1319

Pankajkumar S. PATEL, Jyotsnaben P. Patel, Nishantkumar Patel, Petitioners,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 17-10636

United States Court of Appeals, Eleventh Circuit.

March 6, 2019

Robert Scott Oswald, The Employment Law Group, PC, WASHINGTON, DC, for Petitioners.

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

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

Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.

TJOFLAT, Circuit Judge:

This case presents interesting, and rather complicated, questions of statutory interpretation.

Pankajkumar Patel, an immigrant facing removal, asks us to review a decision by the Board of Immigration Appeals. The Board held that Patel is inadmissible, and thus cannot get relief from removal, because he falsely represented himself as a citizen when applying for a Georgia driver’s license. The relevant statute provides that an alien is inadmissible if he falsely represents himself as a U.S. citizen "for any purpose or benefit" under the law. 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Under the Board’s previous interpretation of the statute, an alien is inadmissible only if he makes the false representation with the intent to obtain the purpose or benefit, and if the false representation is material to the purpose or benefit sought. Matter of Richmond , 26 I. & N. Dec. 779, 786–87 (BIA 2016). Patel argues that he simply checked the wrong box, and that citizenship did not affect the application. His case presents two questions.

First, whether we have jurisdiction to review Patel’s claim that, as a factual matter, he checked the wrong box and thus lacked the requisite subjective intent to trigger the statute. Second, whether we must defer to the Board’s interpretation in Richmond , finding a materiality element in the statute. The answer to both is, we do not.

I.

Patel came to the United States from India. He entered the country without inspection. Consequently, 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. See 8 U.S.C. § 1182(a)(6)(A)(i) ("An alien present in the United States without being admitted or paroled ... is inadmissible.").

Patel conceded removability, 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). Patel was a valid beneficiary, because he had an approved I-140 Immigrant Petition for Alien Worker.¹

The Attorney General may adjust an alien’s status to 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 the box indicating that he is a U.S. citizen. This incident arguably renders Patel inadmissible pursuant to § 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 Board of Immigration Appeals 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. Richmond , 26 I. & N. Dec. at 786–87.

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: he lacked the requisite subjective intent, and the false representation was not material.

At the removal hearing, Patel argued that he did not have the requisite subjective intent: 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 DMV with his driver’s license application, suggesting that it would make no sense to document his non-citizen status if his goal was to pose as a citizen.

Patel also argued that a false representation of citizenship was not material to obtaining a driver’s license. He asserted that an alien is eligible to receive a driver’s license in Georgia. As proof, Patel observed that he had previously received a license from Georgia.

The Immigration Judge ("IJ") rejected Patel’s arguments. The IJ determined that Patel was not credible. He was evasive when testifying and would not explain to the Court exactly what the mistake was. Furthermore, contrary to his testimony, Patel did not write his alien registration number on the application. Where the application asks about citizenship, it 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 the old Georgia driver’s license. In short, the evidence contradicted Patel’s testimony, which the IJ already suspected was not candid, so the IJ did not believe Patel’s claim that he made a mistake. The IJ found that Patel willfully and purposefully indicated that he was a U.S. citizen.

The IJ also held that Patel 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. Patel might have misrepresented his citizenship on his past application too. Alternatively, the IJ continued, even if Patel obtained his prior license without claiming citizenship, the rules governing who qualifies for a license in Georgia could have changed in the interim. Patel simply did not provide enough evidence to show that he was otherwise eligible for the license.²

Because Patel failed to show that he was not inadmissible, the IJ denied his application for adjustment of status and ordered the removal of the Patels.

The Board affirmed. It found no clear error in the factual finding that Patel was not credible and made the false representation for the purpose of obtaining a license—i.e., with subjective intent. The Board also agreed that Patel did not produce enough evidence to prove that he was otherwise eligible for a license—i.e., to prove that the false representation was immaterial.

One board member dissented. She observed that Georgia law extended driver’s licenses to those with lawful status. See Ga. Comp. R. & Regs. 375-3-1.02(6) ("Each customer must provide documentation of his or her citizenship or lawful status in the United States." (emphasis added)). And an alien with "a pending application for lawful permanent residence" has lawful status for the purpose of a driver’s license application. 6 C.F.R. § 37.3. Since Patel had a pending application for lawful permanent residence when he applied for the Georgia license, he did not need citizenship to obtain the license. Thus, the dissenting board member reasoned, the false representation was immaterial.

Patel appeals the Board’s decision.

II.

Typically, on appeals from a Board decision, we review legal conclusions de novo , and we review factual findings under the substantial evidence test. Gonzalez v. U.S. Att’y Gen. , 820 F.3d 399, 403 (11th Cir. 2016). When the Board expressly adopts the IJ’s findings or reasoning, we also review the IJ’s decision. Id. Both parties propose we follow the typical standard.

But Congress has stripped our jurisdiction to hear certain appeals of immigration cases. And even when the parties agree, we must consider jurisdictional issues sua sponte . Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.").

Congress enumerated several "[m]atters not subject to judicial review" in 8 U.S.C. § 1252(a)(2).³ As it pertains to this case, we do not have "jurisdiction to review ... any judgment regarding the granting of relief under section ... 1255 of this title." § 1252(a)(2)(B). However, even when this jurisdictional bar applies, we still have power to review constitutional claims or questions of law. See § 1252(a)(2)(D). In short, we cannot review appeals from judgments under § 1255 unless the party raises a constitutional claim or a question of law.

Accordingly, as Patel appeals from the denial of his claim for adjustment of status under § 1255, we review the legal conclusions below de novo ,...