St. Aubyn Murphy v. U.S. Attorney Gen., 15-12516
| Decision Date | 11 October 2016 |
| Docket Number | No. 15-12516,15-12516 |
| Parties | SEBASTIAN ST. AUBYN MURPHY, a.k.a. Sebastian Murphy, a.k.a. Sebastian St. Abuyn Murphy, a.k.a. Darien Dukelly, a.k.a. Darien Michael Dukelly, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Petition for Review of a Decision of the Board of Immigration Appeals Before HULL, MARTIN and ANDERSON, Circuit Judges.
Sebastian Murphy seeks review of the Board of Immigration Appeals' ("BIA") final order affirming the Immigration Judge's ("IJ") denial of adjustment of status under the Immigration and Nationality Act ("INA") § 245(a), 8 U.S.C. § 1255(a), and waiver of inadmissibility under INA § 212(h), 8 U.S.C § 1182(h). After review, we deny Murphy's petition for review.
Murphy, a native and citizen of Jamaica, entered the United States in December 1990 on a one-year tourist visa and has remained in the United States ever since.
In December 2003, Murphy obtained a Florida driver's license in the name of "Darien Dukelly." Murphy's application for the driver's license indicated that "Dukelly" was born in the United States Virgin Islands. The Department of Motor Vehicles also received a copy of a U.S. Virgin Islands birth certificate in the name of Darien Dukelly.
In December 2005, Murphy applied for and received several credit cards using a false social security number. In January 2006, Murphy secured a vehicle loan using the same false social security number and purchased a truck for hislandscaping business. As a result of these activities, in August 2010, Murphy pled guilty to, and was convicted in federal court of, false use of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B), and aggravated identity theft, in violation of 18 U.S.C. § 1028A. Murphy served a 24-month sentence.
Murphy was placed in removal proceedings in February 2010. After Murphy completed his federal sentence, the Department of Homeland Security served him with an amended Notice to Appear ("NTA"). The NTA alleged that Murphy (1) was admitted to the United States on or about December 20, 1990, as a nonimmigrant visitor for pleasure (B2 visa) with authorization to remain in the United States for a maximum period not to exceed one year; (2) remained in the United States longer than one year; (3) in December 2003, represented himself to be a citizen of the United States for the purpose of obtaining a Florida driver's license by presenting a U.S. Virgin Islands birth certificate to the Florida Department of Motor Vehicles ("DMV"); and (4) in December 2010, was convicted of false use of a social security number and aggravated identity theft.
Accordingly, the NTA charged Murphy with these three grounds of removability: (1) under INA § 237 (a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United States longer than permitted; (2) under INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D), as an alien who made a false claim ofcitizenship; and (3) under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony theft offense, as defined in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). Murphy, through counsel, admitted all of the NTA's factual allegations, except that he had misrepresented his citizenship to the Florida DMV. Murphy also conceded removability for overstaying his visa, the first ground, but denied the second and third grounds, falsely claiming U.S. citizenship and being convicted of an aggravated felony theft offense.
In July 2011, Murphy filed an I-485 application for adjustment of status to lawful permanent residence under INA § 245(a), 8 U.S.C. § 1255(a), along with an I-601 application for waiver of inadmissibility under INA § 212(h), 8 U.S.C § 1182(h), based upon his marriage to his U.S. citizen wife, with whom he has four U.S.-born children.
At a 2013 merits hearing, the IJ heard testimony from Murphy, his wife, a neighbor and friend, and a therapist who had treated Murphy's family and prepared an expert report opining on the hardships Murphy's family faced if he were removed from the United States. Relevant to this appeal, Murphy testified, inter alia, that in 2003 he paid a man named Patrick $1,500 to get him a Florida driver'slicense. Murphy gave Patrick the made-up name Darien Dukelly, a birth date, and photographs of himself he had taken at a CVS store. Two weeks later, Patrick delivered the Florida license in an envelope. Murphy claimed he did not go to the DMV himself, did not submit the U.S. Virgin Islands birth certificate to the DMV, and did not represent to the DMV that he was born in the U.S. Virgin Islands. Approximately a year later, Murphy went to the DMV to obtain a replacement driver's license and had a new picture taken, but he was not required to fill out any paperwork or submit any forms and was not asked if he was a U.S. citizen. At some point, Murphy also obtained a Florida identification card with the name Darien Dukelly.
The DHS submitted the Florida DMV information for Darien Dukelly, which listed Dukelly's state of birth as the U.S. Virgin Islands and indicated that Dukelly was a U.S. citizen. The DMV information also contained a copy of a U.S. Virgin Islands birth certificate in the name of Darien Dukelly. According to the DMV information, Murphy obtained a replacement driver's license in the name Darien Dukelly on March 10, 2005, and a duplicate driver's license on January 25, 2007. On October 17, 2007, he obtained another duplicate driver's license and an original identification card in the name Darien Dukelly, which also indicated he was born in the U.S. Virgin Islands.
The IJ found Murphy's account of how he obtained the Florida driver's licenses and identification card implausible and not credible. The IJ noted that, under Florida law, an applicant must indicate his country of birth to obtain an identification card and that Florida DMV's records indicated Darien Dukelly was a U.S. citizen. The IJ found that it was likely Murphy had represented himself as a U.S. citizen to the DMV to obtain the identification card.
As to removability, the IJ noted that Murphy had conceded removability for overstaying his visa. The IJ rejected the NTA's charge that Murphy was removable based on his aggravated identify theft conviction, concluding that this conviction did not qualify as an aggravated felony theft offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). However, the IJ sustained the NTA's charge of removability for making a false claim of citizenship under INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D), because Murphy went in person to the DMV, knowingly represented himself to be a U.S. citizen on his application, and certified that the information on his application was true in order to obtain a Florida identification card.
The IJ denied Murphy's applications for adjustment of status and waiver of inadmissibility. The IJ concluded that Murphy had failed to carry his burden to show he was admissible or, if inadmissible, eligible for a waiver of inadmissibility. In particular, the IJ found that Murphy was inadmissible because (1) he had beenconvicted of false use of a social security number, which was a crime involving moral turpitude; and (2) he had falsely represented himself as a U.S. citizen to obtain a benefit. Because the second ground for inadmissibility cannot be waived, the IJ concluded that Murphy had failed to show he was statutorily eligible to adjust his status. The IJ ordered Murphy removed from the United States to Jamaica.
E. BIA's Final Order
The BIA affirmed the IJ's decision. Because Murphy conceded removability for overstaying his visa, the BIA "declined to consider [Murphy's] arguments regarding his false claim of United States citizenship inasmuch as it relates to his deportability," and instead "examine[d] whether [Murphy] carried his burden of proof in establishing his admissibility to the United States for purposes of obtaining relief from removal in the form of adjustment of status."
As to Murphy's eligibility for adjustment of status, the BIA found the IJ's adverse credibility finding was not clearly erroneous. The BIA noted that the IJ "found [Murphy's] account of events to be implausible, as it was undermined by the DMV's standard practice of taking pictures on-site in issuing licenses and identification documents." The BIA concluded that the IJ reasonably relied upon Florida's statutorily mandated requirements for receiving identification cards. Because the BIA found no clear error in the IJ's adverse credibility finding, theBIA agreed with the IJ's conclusion that Murphy did not meet his burden to establish he was not inadmissible for making a false claim of U.S. citizenship, for which no waiver of inadmissibility was available. Therefore, the BIA concluded, Murphy was also statutorily ineligible for an adjustment of status.
The BIA rejected Murphy's argument that the IJ violated his due process rights by, inter alia, impermissibly shifting the burden of proof to Murphy. The BIA explained that Murphy conceded his removability for overstaying his visa and carried the burden to establish his admissibility and eligibility for adjustment of status. The BIA also rejected Murphy's suggestion that the IJ showed bias or acted impermissibly when he discussed Florida's statutory requirements for obtaining a state identification.
An alien is removable if the alien is within one or more classes as specified by the INA. See INA § 237 (a), 8 U.S.C. § 1227(a). Those classes include staying longer than permitted and making a false claim of U.S. citizenship. See INA § 237 (a)(1)(B) & (a)(3)(D), 8 U.S.C. § 1227(a)(1)(B) & (a)(3)...
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