David Diaz-Jimenez v. Jefferson Sessions, III
902 F.3d 955
9th Cir.2018Background
- David Israel Diaz-Jimenez, a Mexican national, was served a Notice to Appear alleging unlawful entry and several other charges, including a false claim to U.S. citizenship to obtain private employment under 8 U.S.C. § 1182(a)(6)(C)(ii)(I).
- Diaz conceded removability for unlawful entry but disputed removability based on the false-citizenship charge; the IJ sustained that charge and denied voluntary departure.
- The BIA affirmed, relying on Matter of Bett and precedent treating false attestations of citizenship on Form I-9 as a § 1182(a)(6)(C)(ii)(I) violation.
- Diaz argued (1) private employment is not a “purpose or benefit” under § 1182(a)(6)(C)(ii)(I), and (2) even if it is, the statute only covers false attestations made on the form designated by § 1324a(b)(2) (Form I-9).
- The Ninth Circuit concluded private employment is a qualifying “purpose or benefit” because § 1182(a)(6)(C)(ii)(I) expressly references § 1324a, but held that § 1182(a)(6)(C)(ii)(I) reaches false representations to obtain private employment only when the misrepresentation is made on the Form I-9 as required by § 1324a(b)(2).
- Because the record contained no evidence Diaz completed a Form I-9, the court granted the petition for review and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether private employment is a "purpose or benefit" under § 1182(a)(6)(C)(ii)(I) | Diaz: private employment is not a benefit under the statute | Government/BIA: §1182 references §1324a, so private employment is covered | Held: Private employment is a qualifying "purpose or benefit" because of the explicit §1324a reference |
| Whether a false claim to U.S. citizenship for private employment must be made on the Form I-9 to fall under §1182(a)(6)(C)(ii)(I) | Diaz: §1324a(b)(2) requires the attestation on the designated form; only Form I-9 attestations qualify | BIA/Gov: false representations to obtain private employment generally suffice; relied on Matter of Bett | Held: Violations under §1324a for private employment require the false representation to be made on the Form I-9 per §1324a(b)(2) |
| Whether Diaz exhausted administrative remedies for the Form I-9 argument | Diaz: he raised related §1324a issues before the BIA, giving the agency an opportunity to address the point | Government: argued exhaustion may be lacking | Held: Diaz satisfied exhaustion; his BIA brief put the agency on notice to pass on the issue |
| Result on removability given the record | Diaz: no Form I-9 in record, so cannot be charged under §1182(a)(6)(C)(ii)(I) | BIA: affirmed removability based on representation to obtain employment | Held: Because no evidence Diaz filled out a Form I-9, the record does not support removability under §1182(a)(6)(C)(ii)(I); petition granted and remanded |
Key Cases Cited
- Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008) (holding I-9 citizen-box false attestations qualify under §1182(a)(6)(C)(ii)(I))
- Ferrans v. Holder, 612 F.3d 528 (6th Cir. 2010) (addressing false I-9 attestations to obtain employment)
- Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007) (treating Form I-9 false attestations as basis for removal)
- Kucana v. Holder, 558 U.S. 233 (2010) (statutory interpretation principles; context determines meaning of "under")
- Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013) (textualist guidance: read words in statutory context)