Theodros v. Gonzales, No. 05-60980.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGarwood
Citation490 F.3d 396
Decision Date25 June 2007
Docket NumberNo. 05-60980.
PartiesBrook Emmanuel THEODROS, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
490 F.3d 396
Brook Emmanuel THEODROS, Petitioner,
v.
Alberto R. GONZALES, U.S. Attorney General, Respondent.
No. 05-60980.
United States Court of Appeals, Fifth Circuit.
June 25, 2007.

[490 F.3d 397]

Angie N. N'Duka, Dallas, TX, for Petitioner.

[490 F.3d 398]

Donald Anthony Couvillon, Thomas Ward Hussey, Director, Linda Susan Wendtland, U.S. Dept. of Justice, Office of Immigration Litigation, Alberto R. Gonzales, U.S. Dept. of Justice, Washington, DC, Anne M. Estrada, U.S. I.N.S., Dallas, TX, Trey Lund, U.S. Immigration and Customs Enforcement, Field Office Director, Attn: Carl Perry, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before GARWOOD, BARKSDALE and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:


Brook Emmanuel Theodros (Theodros) petitions this court to review the decision of the Board of Immigration Appeals (BIA) affirming an immigration judge's ruling that he was removable and denying his application for status adjustment because he had made a false claim to United States citizenship to gain employment. For the following reasons, the petition is DENIED.

I.

Theodros, a native of Ethiopia and a citizen of Italy, came to the United States with his father in 1987, when he was thirteen years old, as a derivative E-2 visa holder benefitting from his father's E-1 status. Theodros's E-2 status was valid until 1993, when he reached the age of eighteen. In 1993 and 1994, he served prison sentences in California for three convictions for offenses of receiving stolen property—offenses categorized as crimes involving moral turpitude. After completing his sentences, Theodros moved to Dallas, Texas, where he worked for four-and-a-half years at a hotel, the Marriott. Then, from 1999 to 2003, Theodros worked for Nortel in Dallas and, in 2003, Theodros moved to Hawaii to manage commercial real estate.

On November 24, 2003, the Department of Homeland Security (DHS) issued Theodros a Notice to Appear, charging him with removability under 8 U.S.C. § 1227(a)(1)(B)1 of the Immigration and Nationality Act (INA) since he remained in the United States after the expiration of his visa. To avoid deportation, Theodros sought an adjustment of status under 8 U.S.C. § 1255(a), which requires, inter alia, an alien to be "admissible to the United States" in order to qualify for a status adjustment.2 Since Theodros was inadmissible under 8 U.S.C.

490 F.3d 399

§ 1182(a)(2)(A) because he had committed crimes of moral turpitude, he sought a waiver of inadmissibility under 8 U.S.C. §§ 1182(a)(2)(F) and (h) due to the extreme hardship his removal would cause his wife, a United States citizen. Therefore, if this waiver of inadmissibility were granted, Theodros would be deemed admissible and eligible for a status adjustment under 8 U.S.C. § 1255(a)(2).

Subsequently, at the initial hearing before the Immigration Judge (IJ) on March 12, 2004, the IJ asked Theodros whether he had authorization to work in the United States prior to his wife's I-130 petition and Theodros responded that he first received authorization in 2000.3 The IJ then asked Theodros how he obtained jobs prior to 2000, and Theodros answered that he "didn't tell the truth." The government then asked Theodros whether he "ever told somebody [he was] a U.S. citizen", and Theodros replied, "On the jobs, yes, I did. On the job application where it says, when it asks on that, I did." The IJ then suspended the hearing and, six weeks later, on April 23, 2004, DHS filed an additional charge against Theodros. DHS alleged that, first, in his testimony on March 12, 2004, Theodros admitted to falsely claiming United States citizenship to gain employment and, second, that in November 1999, Theodros represented himself as a United States citizen to gain employment at Nortel. Based on those allegations, DHS charged Theodros with removability under 8 U.S.C. § 1227(a)(3)(D)(i)4 for falsely representing he was a United States citizen. This additional charge jeopardized Theodros's admissibility because 8 U.S.C. § 1182(a)(6)(C)(ii)(I)5 provides that such a false representation of citizenship renders an alien inadmissible—and, unlike inadmissibility caused by committing crimes involving moral turpitude, no waiver is available for inadmissibility caused by such false claiming of citizenship.

At the subsequent hearing on July 6, 2004, Theodros's wife testified that she is supported by the rental income from the commercial real estate managed by her husband and would not be capable of managing the property by herself if Theodros were deported. Theodros also testified, admitting he made false claims of United States citizenship to gain employment but stating that he could not now remember to which employers he thus lied or just when he did so. And, when asked "You don't know what you told Nortel in 1999," Theodros replied "I can't say 100 percent." The government introduced a document from Theodros's Nortel employment application entitled "Determination of Eligibility to Work on Jobs Affected by U.S. Export Control Laws", signed by Theodros and dated November 20, 1999. In this document, Theodros answered affirmatively the question asking whether the signatory was a United States citizen or permanent resident. Theodros's counsel then stated that Theodros admitted that he had made claims to United States citizenship to obtain employment, but further stated, with respect to the allegation that on November

490 F.3d 400

20, 1999 Theodros had claimed to be a United States citizen for purposes of obtaining employment at Nortel, that "we're going to deny that, Your Honor."

The IJ ruled he "would be inclined to grant the respondent adjustment and the [hardship] waiver" but that "the issue before the Court is whether there has been a false claim to U.S. citizenship, since in the Court's understanding of the law, that removes any discretion that the Court might otherwise have." Finding that Theodros had made a false claim to United States citizenship to gain employment, and that this is an unwaivable ground of inadmissibility, the IJ denied Theodros's request for adjustment of status and ordered him to depart voluntarily or be deported.

Theodros timely appealed to the BIA, which adopted and affirmed the IJ's decision and dismissed Theodros's appeal. Theodros then filed in this court a petition for review raising the same claims presented to the BIA—essentially that the IJ's decisions denying Theodros's application for status adjustment and the waiver of inadmissibility were based on insufficient evidence and that the IJ erred in interpreting the bar to admissibility in 8 U.S.C. § 1182(a)(6)(C)(ii)(I) as applying to false claims of United States citizenship to gain private sector employment. Theodros's motion for a stay of removal pending review was denied. For the following reasons, we deny. Theodros's petition.

II.

"We review factual findings of the Board to determine if they are supported by substantial evidence in the record." Mikhael v. INS, 115...

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36 practice notes
  • Knapp v. U.S. Dep't of Agric., No. 14-60002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...but with the appropriate level of deference to his interpretations of the AWA and of Department regulations. See Theodros v. Gonzales, 490 F.3d 396, 400 (5th Cir. 2007); see also Perfectly Fresh Farms, Inc. v. U.S. Dep't of Agric., 692 F.3d 960, 966 (9th Cir. 2012). We generally grant Auer ......
  • Knapp v. U.S. Dep't of Agric., No. 14–60002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...but with the appropriate level of deference to his interpretations of the AWA and of Department regulations. See Theodros v. Gonzales, 490 F.3d 396, 400 (5th Cir.2007) ; see also Perfectly Fresh Farms, Inc. v. U.S. Dep't of Agric., 692 F.3d 960, 966 (9th Cir.2012). We generally grant Auer d......
  • Sandoval v. Holder, No. 09–3600.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 14, 2011
    ...of inadmissibility is not waivable, and it triggers a permanent bar to the alien's admissibility into the country. Theodros v. Gonzales, 490 F.3d 396, 401 (5th Cir.2007); Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.2000). The only exception to the bar exists for children whose parents are......
  • Matter of Barcenas-Barrera, Interim Decision No. 3647.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 19, 2009
    ...it involved a criminal statute that carries the higher burden of proof of guilt beyond a reasonable doubt. See Theodros v. Gonzales, 490 F.3d 396, 401 n.7 (5th Cir. 5. We note that a person born in the United States is both a citizen and national of the United States at birth unless the ind......
  • Request a trial to view additional results
36 cases
  • Knapp v. U.S. Dep't of Agric., No. 14-60002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...but with the appropriate level of deference to his interpretations of the AWA and of Department regulations. See Theodros v. Gonzales, 490 F.3d 396, 400 (5th Cir. 2007); see also Perfectly Fresh Farms, Inc. v. U.S. Dep't of Agric., 692 F.3d 960, 966 (9th Cir. 2012). We generally grant Auer ......
  • Knapp v. U.S. Dep't of Agric., No. 14–60002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...but with the appropriate level of deference to his interpretations of the AWA and of Department regulations. See Theodros v. Gonzales, 490 F.3d 396, 400 (5th Cir.2007) ; see also Perfectly Fresh Farms, Inc. v. U.S. Dep't of Agric., 692 F.3d 960, 966 (9th Cir.2012). We generally grant Auer d......
  • Sandoval v. Holder, No. 09–3600.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 14, 2011
    ...of inadmissibility is not waivable, and it triggers a permanent bar to the alien's admissibility into the country. Theodros v. Gonzales, 490 F.3d 396, 401 (5th Cir.2007); Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.2000). The only exception to the bar exists for children whose parents are......
  • Matter of Barcenas-Barrera, Interim Decision No. 3647.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 19, 2009
    ...it involved a criminal statute that carries the higher burden of proof of guilt beyond a reasonable doubt. See Theodros v. Gonzales, 490 F.3d 396, 401 n.7 (5th Cir. 5. We note that a person born in the United States is both a citizen and national of the United States at birth unless the ind......
  • Request a trial to view additional results

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