26 I. & N. Dec. 437
BIA2014Background
- Bett, a Kenyan native, entered the U.S. in 2008 as a nonimmigrant student.
- DHS charged Bett with removability as someone who failed to maintain status after 2009.
- Bett sought adjustment of status based on a spouse's approved visa petition (May 31, 2011).
- DHS contended Bett was inadmissible for false citizenship representation under 212(a)(6)(C)(ii)(I).
- Record shows Bett signed Form I-9s claiming U.S. citizenship; Bett testified he did not remember doing so.
- I-9s, social security cards, and inconsistent testimony undermined Bett’s credibility; IJ denied relief and ordered removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Form I-9 evidence | Bett argues I-9 should be excluded. | I-9 forms are admissible to prove removability and ineligibility for relief. | I-9 forms admissible in removal proceedings. |
| False claim to United States citizenship | Bett did not clearly and beyond doubt falsely claim citizenship. | The I-9 forms and related evidence establish a false claim to citizenship. | Bett made a false claim to U.S. citizenship; inadmissible under 212(a)(6)(C)(ii)(I). |
| Credibility determination | IJ overstepped by relying on I-9 without thorough review of other documents. | IJ properly weighed credibility via totality of circumstances. | Adverse credibility finding not clearly erroneous; supported by record. |
| Eligibility for adjustment of status | If not inadmissible, Bett could adjust; credibility unresolved. | Inadmissibility forecloses adjustment regardless of credibility. | Bett not eligible for adjustment of status. |
| Voluntary departure request | Because of credibility issues, discretionary relief should be granted. | Due to false statement and credibility concerns, relief denied. | Voluntary departure denied in exercise of discretion. |
Key Cases Cited
- Downs v. Holder, 758 F.3d 994 (8th Cir. 2014) (I-9 admissibility in removal proceedings)
- Hashmi v. Mukasey, 533 F.3d 700 (8th Cir. 2008) (false citizenship representation as ground of inadmissibility)
- Crocock v. Holder, 670 F.3d 400 (2d Cir. 2012) (burden to prove non-false representation required)
- Castro v. Att’y Gen. of U.S., 671 F.3d 356 (3d Cir. 2012) (cited for false claim to citizenship context)
- Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007) (false claim to citizenship and admissibility considerations)
- Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) (credibility and evidence in I-9 context)