Humphrey Etenyi v. Loretta E. Lynch, 799 F.3d 1003

Background

Etenyi, a Kenyan national, entered the U.S. on a student visa in 2006, remained after graduation, and married a U.S. citizen who petitioned for him; he applied to adjust status to permanent resident in 2011.
DHS denied adjustment, alleging Etenyi falsely claimed U.S. citizenship on a 2009 Form I-9, and issued a notice to appear charging removability under 8 U.S.C. § 1227(a)(3)(D) and § 1227(a)(1)(C)(i).
At the IJ hearing Etenyi admitted overstaying his student visa but denied knowingly claiming citizenship on the Form I-9, asserting the form was pre-populated and he did not see the checked citizenship box.
The IJ found Etenyi not credible, relying on the signed Form I-9 (which included a checked “citizen of the United States” box and a warning about penalties), his signature adopting the form, his education level, and other documentary evidence.
The BIA affirmed, holding that signing the I-9 amounted to adopting its contents and that the IJ’s credibility finding and conclusion that evidence supported removability were not clearly erroneous.
The Eighth Circuit denied Etenyi’s petition for review, concluding substantial evidence supports the BIA’s determination that he falsely claimed U.S. citizenship and is therefore ineligible for adjustment of status.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether signing a Form I-9 that contains a checked "citizen of the United States" box can constitute a false claim of citizenship for removability and inadmissibility	Etenyi: He did not knowingly claim citizenship; form was pre-populated and he did not see the box	DHS/BIA: Signing the I-9 constitutes adoption of its contents and is sufficient evidence of a false claim	Held: Signing the unambiguous I-9 is sufficient; substantial evidence supports finding he falsely claimed citizenship
Whether the IJ’s adverse credibility finding was supported by substantial evidence	Etenyi: IJ erred; he read other parts and did not notice the box	DHS/BIA: IJ observed testimony, had specific reasons (form warnings, signature, education) to disbelieve him	Held: IJ’s credibility finding entitled to deference and not clearly erroneous
Whether 8 U.S.C. § 1324a(b)(5) precludes use of Form I-9 in removal proceedings	Etenyi: Statute bars use of I-9 outside specified enforcement contexts	DHS/BIA: Precedent interprets § 1324a(b)(5) as not barring I-9 use in removal cases	Held: Argument foreclosed by Eighth Circuit precedent; I-9 may be used in removal proceedings
Whether Kirong requires more than a signed I-9 to prove false claim	Etenyi: Kirong requires additional evidence because of possible ambiguity in I-9 wording	DHS/BIA: Current I-9 wording unambiguously states "citizen," unlike prior form in Kirong, so no extra evidence needed	Held: Kirong inapplicable because prior form was ambiguous; current form is unambiguous and the signed I-9 suffices

Key Cases Cited

Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. 2013) (deference to BIA interpretation and review standards)
Spacek v. Holder, 688 F.3d 536 (8th Cir. 2012) (agency review principles)
Goswell-Renner v. Holder, 762 F.3d 696 (8th Cir. 2014) (substantial-evidence standard)
Mayo v. Ashcroft, 317 F.3d 867 (8th Cir.) (credibility findings and IJ advantages in assessing testimony)
R.K.N. v. Holder, 701 F.3d 535 (8th Cir. 2012) (deference to IJ credibility determinations)
Osonowo v. Mukasey, 521 F.3d 922 (8th Cir. 2008) (requirement for specific, cogent reasons supporting disbelief)
Dakura v. Holder, 772 F.3d 994 (4th Cir. 2014) (signed I-9 can suffice to show false claim of citizenship)
Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008) (prior-form ambiguity limited evidentiary value of I-9)
Downs v. Holder, 758 F.3d 994 (8th Cir. 2014) (§ 1324a(b)(5) does not bar use of I-9 in removal proceedings)