Issuance of Notices to Appear (NTAs) Inadmissible and Removable Aliens

Policy Memorandum November 7, 2011 PM-602-0050
NTA PM (Approved as final 11-7-11)

SUBJECT: Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens

Purpose

This Policy Memorandum (PM) establishes new USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of the resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. This PM supersedes Policy Memorandum No. 110, Disposition of Cases Involving Removable Aliens, dated July 11, 2006.

Scope

This PM applies to and is binding on all USCIS employees unless otherwise specifically provided in this PM.

Authority

Immigration and Nationality Act (INA) sections 101(a)(43), 103(a), 239, 240 and 318; Title 8, Code of Federal Regulations (8 CFR) parts/sections 2.1, 103, 204, 207.9, 208, 216.3(a), 216.6(a)(5), 236.14(c), and 239; Adjudicator’s Field Manual Chapter 10.11(a).

Background

U.S. Citizenship and Immigration Services (USCIS) has authority, under the immigration laws, see, e.g., INA §§ 103(a), 239; 8 CFR §§ 2.1, 239.1, to issue Form I-862, Notice to Appear, to initiate removal proceedings. 1 U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) also have authority to issue NTAs. Accordingly, USCIS must ensure that its issuance of NTAs fits within and supports the Government’s overall removal priorities, while also ensuring that its NTA policies promote national security and the integrity of the nation’s immigration system.

To those ends, this PM identifies the circumstances under which USCIS will issue an NTA, or will refer the case to ICE for NTA issuance, in order to effectively handle cases that involve public safety threats, criminals, and aliens engaged in fraud.

Policy

I. National Security Cases

This PM does not affect the handling of cases involving national security concerns. 2 Guidance from the Fraud Detection and National Security Directorate (FDNS) 3 will continue to govern the definition of these cases and the procedures for resolution and NTA issuance.

II. NTA Issuance Required by Statute or Regulation

USCIS will issue an NTA in the following circumstances: 4

A.Termination of Conditional Permanent Resident Status and Denials of Form I-751, Petition to Remove the Conditions of Residence (8 CFR 216.3, 216.4, 216.5) 5

B. Denials of Form I-829, Petition by Entrepreneur to Remove Conditions (8 CFR 216.6)

C.Termination of refugee status by the District Director (8 CFR 207.9)

D.Denials of NACARA 202 and HRIFA adjustments

1. NACARA 202 adjustment denials (8 CFR 245.13(m));

2. HRIFA adjustment denials (8 CFR 245.15(r)(2)(i)).

E. Asylum 6 , NACARA 203, and Credible Fear cases: 7

1. Asylum referrals (8 CFR 208.14(c)(1));

2.Termination of asylum or termination of withholding of removal or deportation (8 CFR 208.24(e)); 8

3 Positive credible fear findings (8 CFR 208.30(f));

4. NACARA 203 cases where suspension of deportation or cancellation of removal is not granted, and the applicant does not have asylum status, or lawful immigrant or non-immigrant status (8 CFR 240.70(d)).

This PM does not apply to, or change, NTA or notification procedures for Temporary Protected Status cases. 9 Further, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, processed under the Violence Against Women Act (VAWA), should continue to be processed under existing protocols. If the VAWA applicant’s Form I-485 is denied, this memorandum is applicable in terms of NTA issuance. 10

III. Fraud Cases with a Statement of Findings Substantiating Fraud

To protect the integrity of the immigration system and address fraud, USCIS will issue NTAs when a Statement of Findings (SOF) substantiating fraud is part of the record. 11 An NTA will be issued upon final adjudicative action on the petition and/or application or other appropriate eligibility determination. 12 NTAs will be issued even if the petition and/or application is denied for a ground other than fraud, such as lack of prosecution or abandonment, is terminated based on a withdrawal by the petitioner/applicant, or where an approval is revoked, so long as an SOF substantiating fraud is in the record.

The NTA should include the charge of fraud or misrepresentation, if possible. The appropriate charge(s) will be determined on a case-by-case basis. Consultation with local USCIS counsel to determine the appropriate charge(s) is recommended.

IV. Cases to be Referred to ICE for a Decision on NTA Issuance

A. Criminal Cases: Criminal aliens are a top immigration enforcement priority for the government. The following guidance recognizes the prioritization and requires USCIS to refer criminals to ICE for action or issue an NTA in accordance with this PM.

1.Egregious Public Safety (EPS) Cases

USCIS will refer all EPS cases, including cases with pending N-400s, to ICE prior to adjudicating the case even if USCIS can deny the petition and/or application on its merits. An EPS case is defined by USCIS and ICE as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of, any of the following:

a. Murder, rape, or sexual abuse of a minor as defined in section 101(a)(43)(A) of the INA.

b. Illicit trafficking in firearms or destructive devices as defined in section 101(a)(43)(C) of the INA.

c. Offenses relating to explosive materials or firearms as defined in section 101(a)(43)(E) of the INA.

d. Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year as defined in section 101(a)(43)(F) of the INA.

e. An offense relating to the demand for, or receipt of, ransom as defined in section 101(a)(43)(H) of the INA.

f. An offense relating to child pornography as defined in section 101(a)(43)(I) of the INA.

g. An offense relating to peonage, slavery, involuntary servitude, and trafficking in persons as defined in section 101(a)(43)(K)(iii) of the INA.

h. An offense relating to alien smuggling as described in section 101(a)(43)(N) of the INA

i. Human Rights Violators, known or suspected street gang members, or Interpol hits.

j. Re-entry after an order of exclusion, deportation or removal subsequent to conviction for a felony where a Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal, has not been approved.

All EPS cases must be referred to ICE using the procedures outlined below. The case will be referred as soon as it is identified. ICE will have an opportunity to decide if, when, and how to issue an NTA and/or detain the alien. USCIS will not issue an NTA in these cases if ICE declines to issue an NTA. If some other basis unrelated to the EPS concern becomes apparent during the course of adjudication, an NTA may be issued in accordance with this memo.

Referral Process

This referral process is utilized in order to give ICE the opportunity to determine the appropriate course of action before USCIS adjudicates the case. A decision to issue an NTA may directly affect the processing of the pending petition and/or application. Upon issuing the Referral to Immigration and Customs Enforcement (RTI), USCIS will suspend adjudication for 60 days, or until ICE provides notification of its action on the case, whichever is earlier.

In response to the RTI –

1. ICE may issue an NTA. ICE’s issuance of an NTA allows USCIS to proceed with adjudication (unless jurisdiction transfers to EOIR or the pending application is an N-400), taking into account the basis for the NTA.

2. If ICE does not issue an NTA or otherwise provide notification of its action on the case within 60 days of the RTI, USCIS may resume its adjudication of the case, taking into account the referral grounds.

a. If the case is approvable, USCIS will consult with ICE prior to adjudication.

b. Once adjudicated, regardless of the decision, USCIS will notify ICE of the result by sending a copy of the original RTI to ICE with a cover memorandum advising of the outcome of the case.

EPS cases referred to ICE prior to adjudication should be called up and reviewed no later than 60 days after referral. Normally, the case should be adjudicated by USCIS. However, USCIS retains discretion to place the case on hold for more than 60 days if ICE requests additional time to conduct an investigation. 13

Office-Specific Processes

1. Cases to be adjudicated by Service Centers and the National Benefits Center. Adjudication will be suspended and the case will immediately be sent to the appropriate Service Center Background Check Unit (BCU). The BCU will refer the case to the ICE Benefit Fraud Unit (BFU) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. The BCU will retain the file unless ICE requests it or the 60 days expire.

2. Cases to be adjudicated by Field Offices. The Immigration Services Officer (ISO) will suspend adjudication and the case will immediately be referred to the local ICE Special Agent in Charge (SAC) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. A copy of the RTI must also be sent to the ICE BFU. USCIS will retain the file unless ICE requests the file for their review.

An RTI should include any relevant attachments that USCIS has at the time, such as a copy of the RAP sheet and a copy of the petition and/or application.

2. Non-Egregious Public Safety Criminal Cases

If it appears that the alien is inadmissible or removable for a criminal offense not included on the EPS list, USCIS will complete the adjudication and then refer the case to ICE. This section applies to N-400 cases if the N-400 has been denied on good moral character (GMC) grounds based on the criminal offense. 14 ICE will decide if, and how, it will institute removal proceedings and whether or not it will detain the alien. USCIS will not issue an NTA if ICE declines to issue an NTA.

If some other basis unrelated to the criminal offense becomes apparent upon return of the case to USCIS, an NTA may be issued in accordance with this memo.

Referral Process

The referral process is used to allow ICE to make a determination whether to issue an NTA, based on the totality of circumstances and its priorities. ICE will determine the appropriate grounds for removal if an NTA is issued.

Once adjudication is complete, USCIS will send an RTI to ICE. USCIS will concurrently transmit a copy of the RTI to ICE Headquarters (HQ) Enforcement and Removal Operations (ERO) Criminal Alien Division for statistical monitoring purposes. If there is any confusion or uncertainty about classifying a case as egregious versus non-egregious, the USCIS ISO should refer the matter as an EPS case using the process described above.

The accompanying A-file will be referred to ICE with the RTI, if the file is in the possession of the referring USCIS office or center. If the file is not at the referring USCIS office or center, the RTI should include any relevant attachments that USCIS has, such as a copy of the RAP sheet and a copy of the petition and/or application. Where USCIS obtained certified conviction records through normal processing of the case, USCIS will include the records with the RTI, but it will not hold the RTI on a completed case solely to obtain disposition records. Instead ICE will decide whether, and how, it will obtain such records as part of its decision to issue an NTA.

Office-Specific Processes

1. Cases adjudicated by Service Centers and the National Benefits Center. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, the file will be referred to the BCU. The BCU will refer the case, along with the A-file and/or receipt file, to the appropriate ERO Field Office Director (FOD) via an RTI.

2. Cases adjudicated by Field Offices. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, USCIS will prepare an RTI and refer the case, along with the A-file and/or receipt file, to the local ERO FOD.

B. National Security Entry Exit Registration System (NSEERS) Violator Cases

USCIS will refer all cases in which an application is denied based on an NSEERS violation to ICE for possible NTA issuance.

V. Cases Involving Form N-400, Application for Naturalization

The following guidance applies to the issuance of NTAs in cases in which applicants for naturalization are removable. There are two primary situations in which NTAs may be issued in connection with a filed Form N-400. If the N-400 case involves fraud (documented in the SOF) the procedures found in this section must be followed, rather than the procedures found in Section III (Fraud Cases with a Statement of Findings Substantiating Fraud). However, the below guidance does not apply to EPS cases. EPS cases must be referred in accordance with Section IV.A.1 (Egregious Public Safety Cases) of this memo. Additionally, the below guidance does not apply to non-EPS criminal cases when the N-400 can be denied on GMC grounds based on the criminal act. These cases must be denied and referred in accordance with Section IV.A.2 (Non-Egregious Public Safety Criminal Cases).

A.The first situation occurs when the applicant may be eligible to naturalize but is also deportable under section 237 of the INA. Examples include applicants convicted of aggravated felonies prior to November 29, 1990, or applicants convicted of deportable offenses after obtaining Lawful Permanent Resident (LPR) status that do not fall within the GMC period. The ISO should:

1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: severity of crime, time since crime committed, other criminal conduct, reformation, immigration history including method of entry, length of presence in the U.S., and prior immigration violations, and contributions to society to include the pursuit of education and military service. 15

2. Once the ISO has made a recommendation on whether or not to issue an NTA, the case should be forwarded to the N-400 NTA Review Panel (Review Panel), along with the written recommendation. A Review Panel must be formed in each Field Office and include a local Supervisory Immigration Services Officer (SISO), a local USCIS Office of Chief Counsel attorney, and a district representative. An attorney from ICE’s local Office of Chief Counsel will be invited to participate and will have an advisory role on the panel. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.

3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once proceedings have concluded, or if the Review Panel declines to issue an NTA, adjudicate the case appropriately.

B. The second situation occurs when it is determined that the applicant was inadmissible at the time of adjustment or admission to the United States, thus deportable under section 237 of the INA and not eligible for naturalization under section 318 of the INA. 16 The ISO should:

1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: willfulness of actions, fraud factors, length of LPR status, criminal history, and officer error at time of adjustment.

2. Once the ISO has made a recommendation on the issuance of the NTA, the case should be forwarded to the Review Panel (see Section V.A.2), along with the written recommendation. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.

3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once removal proceedings have concluded, adjudicate the case appropriately. If the Review Panel declines to issue an NTA, deny the case under section 318 of the INA.

VI. Other Cases

A. An alien may request NTA issuance to renew an application for adjustment or in certain cases with a denied N-400. The request must be made in writing. 17

B. An asylum applicant issued an NTA may request NTA issuance for family members not included on the asylum application as dependents for family unification purposes. The request must be made in writing. 18

VII. Exceptions

Exceptions to the guidance in this PM require concurrence from Regional or Center Directors, who will consult with ICE before issuing an NTA.

VIII. Coordination with ICE

According to the June 2011 ICE memo regarding the exercise of prosecutorial discretion consistent with priorities, 19 USCIS will receive notice before an ICE attorney exercises prosecutorial discretion and dismisses, suspends, or closes a case. The local N-400 NTA Review Panel will work with ICE to come to a resolution if USCIS does not agree with ICE’s use of prosecutorial discretion in a particular case. If concurrence cannot be reached, the case should be elevated to the USCIS Office of Chief Counsel in headquarters.

Implementation

Each field office must form an N-400 NTA Review Panel and create a process to complete RTIs and refer EPS and non-EPS criminal cases to ICE. A written list enumerating the members of the Review Panel and a document outlining the process of referral must be sent to the appropriate district office within 30 days of the issuance of this memorandum.

Use

This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law, or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

_______________________

1 Delegation by the Secretary of the Department of Homeland Security to the Bureau of Citizenship and Immigration Services, Delegation Number 0150.1; Paragraph 2(N). However, international District Directors and officers are not authorized to issue NTAs.

2 National Security Cases include cases involving Terrorist Related Grounds of Inadmissibility (TRIG) pursuant to sections 212(a)(3)(B) and 212(a)(3)(F) of the INA.

3 See, e.g., Policy for Vetting and Adjudicating Cases with National Security Concerns (April 11, 2008).

4 If any Form I-751 or I-829 cases are also Egregious Public Safety cases, they will be referred to ICE in accordance with Section IV.A.1 of this PM.

5 See the October 9, 2009 internal memo, Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions. See also the April 3, 2009 memo, I-751 Filed Prior to Termination of Marriage.

6 USCIS may issue an NTA when an asylum applicant withdraws his or her asylum application.

7 This memo does not apply to the Asylum Division’s issuance of Form I-863, Notice of Referral to Immigration Judge, to certain stowaways, crewmembers, and VWP individuals who are requesting asylum or withholding of removal; reasonable fear screenings and negative credible fear screenings.

8 See also section 208(c)(3) of the INA describing removal when asylum is terminated.

9 See the September 12, 2003 internal memo, Service Center Issuance of Notice to Appear (Form I-862).

10 When making determinations, employees must keep in mind USCIS’s obligations under 8 USC § 1367, which prohibits the release of any information, outside of DHS, relating to aliens who are seeking or have been approved for immigration benefit(s) under the provisions for battered spouses, children, and parents in the Violence Against Women Act.

11 Alternatively, ICE will determine whether to issue the NTA if a criminal investigation is conducted, fraud is found, and the investigation results in criminal prosecution.

12 This includes, but is not limited to, aliens that were granted asylum status by USCIS, adjusted to Lawful Permanent Resident status, presented fraud indicators, were subject to the Post Adjustment Eligibility Review (PAER) process in an Asylum Office, and met the PAER criteria for NTA issuance.

13 Pursuant to 8 CFR 274a.13(d), USCIS must complete processing of an Employment Authorization Document (EAD) within 90 days or issue an interim EAD card valid up to 240 days. Officers should be mindful of this regulatory timeframe when cases with a pending Form I-765, Application for Employment Authorization, are referred to ICE.

14 See Section V of this memo addressing N-400 cases.

15 Additional factors to be taken under consideration can be found in the June 17, 2011 ICE memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.

16 In the Third Circuit only (Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands), based on the holding in Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009), if the alien has been an LPR for at least five years, the alien cannot be placed in removal proceedings for fraud or willful misrepresentation of a material fact at time of adjustment, if USCIS could have learned of the fraud or misrepresentation through reasonable diligence before the five year rescission period expired. Please consult with USCIS counsel if there are questions regarding the applicability of this precedent.

17 USCIS retains discretion to deny a request. USCIS should consider ICE actions and determinations when making an NTA issuance decision under this section.

18 USCIS retains discretion to deny a request.

19 Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, signed June 17, 2011.

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CA7 Upholds Denial of Good-Faith Marriage Waiver

CA7 Upholds Denial of Good-Faith Marriage Waiver. The court upheld the denial of the petitioner’s request for a good-faith marriage waiver, finding the removal proceedings were not unfair and that the IJ’s adverse credibility determination was reasonable. (Boadi v. Holder, 2/7/13)

Record contained sufficient evidence to support termination of alien’s lawful permanent resident status and his ultimate removal based on finding that: (1) alien’s marriage to U.S. citizen was sham under circumstances where alien was not living with spouse, and where spouse could not name alien’s biological children or name street where alien lived; and (2) alien was not entitled to good-faith marriage waiver to removal after alien and his U.S. spouse had divorced. Moreover, Ct. rejected alien’s claim that IJ’s brief, 20-day continuance of removability hearing to allow him to obtain counsel deprived him of fair opportunity to present favorable evidence on issue as to whether marriage was sham, and alien’s challenge to IJ’s adverse credibility finding was factual matter that could not be challenged on appeal.

Boadi legally entered the U.S. in 2000 but overstayed and married Bonds, a U.S. citizen, in 2001. He adjusted his status to conditional lawful permanent resident in 2003, 8 U.S.C. 1186a(a)(1). In 2007, Boadi and Bonds sought removal of the “condition” to his permanent resident status, with documentation supporting the authenticity of their marriage. DHS’s interview with the couple revealed that Boadi lived in Ohio and Bonds in Illinois and that Boadi may have lived with his ex-wife, another Ghanian national. Bonds could neither name Boadi’s three children nor the street on which Boadi lived. They gave conflicting answers regarding their respective children’s relationships and who paid the bills. Boadi failed to respond to a letter and DHS terminated his legal status in 2009 and issued a notice to appear. Boadi and Bonds divorced only weeks after the notice to appear, which automatically terminates an alien’s conditional legal status, 8 U.S.C. 1186a(b)(1)(A)(ii), distinct from DHS’s existing allegation of fraud. Boadi unsuccessfully requested a good-faith marriage waiver. Removal proceedings began. The immigration judge made an adverse credibility determination and found Boadi removable under 8 U.S.C. 1227(a)(1)(D)(i). The Board of Immigration Appeals affirmed. The Seventh Circuit denied review.

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BOADI v. HOLDER

John K. Asare BOADI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2742.

Argued Jan. 9, 2013. — February 07, 2013 Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

Charley L. Yaniko, Attorney, Zeidan & Associates, LLC, Columbus, OH, for Petitioner.Timothy G. Hayes, Attorney, OIL, Attorney, Department of Justice, Washington, DC, for Respondent.

In 2001, John Asare Boadi, a Ghanian national that remained in the United States past his visa’s authorization, obtained conditional permanent resident status by marrying a U.S. citizen. Two years later, he petitioned the Department of Homeland Security (“DHS”) to remove the condition on his status, but the subsequent DHS interview revealed Boadi’s marriage appeared to be a ploy to obtain permanent resident status. DHS initiated removal proceedings, and an immigration judge eventually denied Boadi’s request for a good-faith marriage waiver through which Boadi could have avoided removal if he proved he entered his marriage (which had now ended through divorce) in good faith. Boadi now challenges the nature of that proceeding as well as the immigration judge’s substantive conclusions. For the reasons set forth below, we deny Boadi’s petition for review.

I. Background

A. Factual Background

Boadi legally entered the United States in 2000 but overstayed his thirty-day authorization. He subsequently married Veronica Bonds, a U.S. citizen, in 2001. As a result, he adjusted his status to conditional lawful permanent resident in 2003 pursuant to 8 U.S.C. § 1186a(a)(1) (“an alien spouse ․ shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis”). In 2007, Boadi and Bonds filed a joint petition on U.S. Custom and Immigration Services form I–751 seeking removal of the “condition” to his permanent resident status, and they attached documentation supporting the authenticity of their marriage. See 8 C.F.R. § 216.4(a)(5). DHS’s interview with the couple, however, revealed a number of deficiencies in their application. For instance, they lived apart, Boadi in Ohio and Bonds in Illinois. In fact, DHS discovered that Boadi may have lived with his ex-wife, another Ghanian national that acquired legal status by marrying a U.S. citizen, during his marriage to Bonds. Additionally, Bonds could neither name Boadi’s three biological children nor the street on which Boadi lived. They also gave conflicting answers to the same questions regarding their respective children’s relationships, who paid the bills at Bonds’s home, and the day Boadi arrived for his interview.

After the interview, DHS sent a letter to Boadi expressing its intent to deny the petition. Boadi failed to respond, and DHS terminated his legal status in 2009. DHS subsequently issued a notice to appear on three grounds: (1) obtaining an immigration benefit by fraud or willful misrepresentation, (2) remaining in the United States for a period longer than permitted, and (3) having his conditional lawful permanent resident status terminated.

Boadi and Bonds divorced only weeks after the notice to appear, which automatically terminates an alien’s conditional legal status. 8 U.S.C. § 1186a(b)(1)(A)(ii). This ground was distinct from DHS’s existing allegation of fraud, but either way, Boadi was now removable under 8 U.S.C. § 1227(a)(1)(D)(i). Facing deportation, Boadi requested a good-faith marriage waiver through which the Attorney General or DHS may discretionarily remove the conditional status (i.e., grant full permanent resident status) to an alien who entered into a qualifying marriage in good faith even though it was later terminated. 8 U.S.C. § 1186a(c)(4)(B). DHS eventually denied this request.

B. Procedural Background

Removal proceedings began, and Boadi brought counsel with him to his March 2010 “master calendar” hearing. Boadi conceded removability based on the termination of his conditional lawful resident status, but he opposed the first two grounds. He also requested a transfer to the Cleveland Immigration Court because he still resided in Ohio. DHS opposed this request, and the immigration judge decided to keep the case in Chicago to decide only the issue of removability, reasoning that the evidence of fraud would come from the Chicago DHS agent that interviewed Boadi and Bonds. He continued the case and stated after the next hearing he would “transfer the case to Cleveland.”

A few weeks before Boadi’s next hearing, his counsel withdrew, and Boadi appeared pro se on March 11, 2011. Despite the immigration judge’s previous assurances, he told Boadi this would be his “final” hearing, meaning the court would decide every issue that day, not just removability. In fact, the immigration judge incorrectly asserted that he originally scheduled the hearing “to complete [Boadi’s] case.” Nevertheless, the immigration judge was willing to continue the case for twenty additional days so Boadi, who expressed a desire to obtain new counsel, could consult an attorney. This compromise did not satisfy DHS. Because the agent that investigated Boadi’s marriage was present, DHS requested that the court take her testimony. The immigration judge acceded. Boadi was permitted to cross-examine the witness, but he abandoned his attempt after one question.

Before adjourning, the immigration judge recognized the difficult situation Boadi faced without counsel. He further explained that he asked the government to submit the I–751 application (for the good-faith marriage waiver, not the original joint submission with Bonds), which contained various documents, and he twice asked Boadi whether there was any evidence he wanted the immigration judge to consider, reminding him he could bring additional material to the next hearing.

On March 31, Boadi had what would turn out to be his final hearing. He again appeared pro se. The immigration judge examined Boadi, who attempted to account for the discrepancies in the DHS investigation. He stated he moved to Chicago in November 2001 to marry Bonds before he started at an Ohio nursing school in 2003. He visited Bonds, who later moved to Decatur, Illinois, on the weekends. Boadi also denied living with his ex-wife. The confusion stemmed, Boadi testified, from his children’s use of his first wife’s address. Boadi said the children received letters with his name on them; that is why it appears that he received mail there. Boadi did admit he used his ex-wife’s address for his driver’s license but only because he could not use the friend’s address where he actually lived. As for the conflicts between his and Bonds’s answers, Boadi explained Bonds forgot his children’s names because it had been a while since she saw them. Finally, Boadi provided letters from friends supporting the bona fides of his marriage, but the immigration judge noted that some of this information conflicted with Boadi’s testimony; namely, that the friends stated Boadi and Bonds were happily married during a period that Boadi testified they were separated.

Ultimately, the immigration judge did not believe Boadi’s account. He made an adverse credibility determination and issued an oral decision finding Boadi was removable under 8 U.S.C. § 1227(a)(1)(D)(i) because the government terminated his conditional status.1 The immigration judge also found Boadi failed to meet his burden for the good-faith marriage waiver under 8 U.S.C. § 1186a(c)(4)(B), his only application for relief. The immigration judge found the discrepancies produced by the DHS investigation damaging, and Boadi’s efforts to compensate for them unpersuasive. Boadi appealed through counsel to the Board of Immigration Appeals, raising the same claims he now raises to this Court and also challenging the immigration judge’s decision as clearly erroneous. The Board affirmed, and Boadi now petitions this Court for review.

II. Discussion

Congress limits our ability to review “any ․ decision ․ of the Attorney General or Secretary of Homeland Security the authority for which is specified ․ to be in the[ir] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). The good-faith marriage waiver, through which Boadi seeks relief, is such a section. 8 U.S.C. § 1186a(c)(4) (“The Secretary of Homeland Security, in the Attorney General’s discretion, may remove the conditional basis of the permanent resident status”). Section 1252(a)(2)(D) restores jurisdiction for colorable legal and constitutional claims, which we review de novo.

Boadi raises four issues on appeal, two of which are legal and two of which are largely factual despite Boadi’s efforts to couch them otherwise. We examine the legal claims first: that the manner in which the immigration judge conducted his proceedings was “fundamentally unfair” and that the judge “failed to identify” the evidence admitted into the record. We then turn to Boadi’s claims that the immigration judge erred in making an adverse credibility determination and inappropriately weighed the evidence.

A. Manner of Proceedings

Boadi primarily takes issue with the manner in which the immigration judge conducted the proceedings. Specifically, Boadi argues that when the immigration judge continued the case after Boadi’s initial master calendar hearing, he indicated he would decide the issue of removability, then transfer the case to Cleveland to determine applications for relief. At the second hearing, however, the immigration judge told Boadi it was his “final hearing.” He did continue the case for twenty days so Boadi could secure counsel, but he also granted DHS’s request to take testimony from its witness. In essence, Boadi argues that he was willing to contest removability pro se but not applications for relief. The immigration judge’s switch, Boadi argues, had two consequences: (1) he did not have a meaningful opportunity to cross-examine the DHS witness or present other evidence, and (2) the immigration judge deprived him of an opportunity to set forth “any and all applications for relief.”2 He contends these consequences violated his rights under 8 U.S.C. § 1229a(b)(4)(B),3 which provides the “alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.”

Preliminarily, even if Boadi believed that the hearing would only concern removability, it is difficult to see how the proceeding surprised him. One contested ground of removability was 8 U.S.C. § 1227(a)(1)(A) (permitting deportation of inadmissible aliens) because he violated 8 U.S.C. § 1182(a)(6)(C)(i), which applies to any “alien who, by fraud or willfully misrepresenting a material fact, ․ has procured[ ] a visa, other documentation, or admission into the United States or other benefit provided under this chapter.” Thus, in proving removability, DHS had to prove Boadi made a misrepresentation in securing his conditional permanent resident status. It did so through the live testimony of the DHS agent that investigated Boadi’s marriage to Bonds. Notwithstanding, Boadi was still not deprived of an opportunity to crossexamine the witness. For one, the immigration judge offered him the opportunity to do so at the hearing, which Boadi declined. But more importantly, if Boadi thought this proved inadequate, he could have recalled the witness (or presented new evidence) at the continued hearing twenty days later, either personally or through counsel. He chose not to.

Next, Boadi’s conclusory assertion that the immigration judge deprived him of an opportunity to “set forth any and all applications for relief” lacks merit. First, Boadi does not explain why he could not do so during the twenty-day continuance he did receive from the immigration judge nor does he explain why he could not ask for an additional continuance at that hearing to do so. In fact, at no point during the entire proceeding has Boadi suggested there is another application for relief.

This all leads to the glaring absence of prejudice in Boadi’s case. See Delgado v. Holder, 674 F.3d 759, 769 (7th Cir.2012) (“Even if Daisy’s testimony was inappropriately excluded, Delgado has not shown that he was prejudiced by this exclusion.”); Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir.2007) (“To warrant a new immigration hearing ․ an alien must establish that she was prejudiced, that is, that the error likely affected the result of the proceedings.”). Boadi might have preferred the chance to present a case in Cleveland with more time, but even with counsel representing him on appeal he fails to offer a single way in which the manner of the proceeding altered the outcome. It is not enough to suggest that cross-examination might have gone differently or that an attorney (assuming Ohio counsel was available) would have presented different evidence. Maybe a better cross-examination or different evidence would have exposed a weakness in the DHS investigation. But to succeed on appeal, Boadi must point to that alleged weakness and explain how it affected his case. When asked at oral argument what evidence a lawyer would have produced, Boadi’s counsel cryptically alluded to documents in the “government’s files” without explaining what this evidence was or why it remains unavailable to him. The most specific thing he offered was the evidence submitted with his original joint I–751 petition (not the good-faith marriage petition) through which he originally received conditional permanent resident status. But despite being the person that submitted this information, Boadi does not explain what evidence was in the petition, how it supports his claim, or why he no longer has it.

This flaw in Boadi’s argument has more applicability to the application-for-relief claim. To the extent that twenty days was insufficient to discover additional grounds, the immigration judge issued his decision eighteen months ago and Boadi still has not suggested that an actual alternative application for relief exists. We require a showing of prejudice because we want to avoid remanding a case that will inevitably reach the same result. Boadi provides no suggestion that a new hearing would end differently. In short, it is not enough that the immigration judge’s alleged errors had the potential to prejudice Boadi. Before granting his petition for review, he must show that the procedural irregularities actually prejudiced him. Otherwise, the error is harmless.

B. The Immigration Judge’s Consideration of the Evidence

In his next claim, Boadi essentially argues that the immigration judge “must at least identify” all of the evidence submitted to him “for the purposes of building a record on appeal.” This argument relates to the government’s submission of evidence at his second hearing. Boadi does not contend that this information is not part of the administrative record so we do not see how the immigration judge failed to “build a record on appeal.” Instead, he argues that because the immigration judge did not cite to this material in his oral decision, Boadi does not know how much weight the immigration judge attached to each piece of evidence. Boadi seems to suggest that several of the government’s submissions contained multiple documents, and in discussing these submissions the immigration judge should have indicated precisely what portions were considered and how much weight he attached to each portion. No such requirement exists, however. Boadi even recognizes that the immigration judge does not need to discuss all of the evidence; he need only consider it. And Boadi does not contend that the immigration judge failed to meet this requirement. In light of this concession, we do not see how the immigration judge committed legal error.

Importantly, Boadi once again fails to explain how this alleged error prejudiced him, and we do not see how it could have. Because we lack jurisdiction to review factual claims, a clear articulation of the relative weight of the evidence would make no difference to Boadi’s appeal. The same is true in typical cases that we review for substantial evidence, upholding an immigration judge’s findings “if they are supported by reasonable, substantial, and probative evidence.” Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). The relative weight does not matter so long as adequate evidence supports the immigration judge’s ultimate conclusion. Accordingly, we find this claim lacks merit.

C. Credibility Determination

Boadi’s challenge to the immigration judge’s credibility finding is a factual challenge, which we cannot review under 8 U.S.C. § 1252(a). This sort of claim challenges the immigration judge’s assessment of the evidence and presents no claim of law. Moreover, section 1186a further limits our review by granting the immigration judge the exclusive power to determine “what evidence is credible.” Boadi, however, tries to frame the issue as legal in two distinct ways.

First, he argues that the immigration judge conflated his determination of whether Boadi was credible with his determination of whether Boadi met his burden of proof. However, Boadi’s characterization of the immigration judge’s opinion is incorrect. The immigration judge merely determined Boadi failed to meet his burden of proof because he was not credible. Boadi’s evidence predominantly consisted of his own testimony and explanations regarding DHS’s investigation; without credibility, there was no evidence in favor of Boadi. And in making this credibility determination, the immigration judge reviewed the entire record and explained his reasoning for the determination. He examined the discrepancies uncovered by the DHS witness and explained how Boadi’s clarifications were unpersuasive.

Second, Boadi argues the immigration judge did not consider the factors in 8 U.S.C. § 1229a(c)(4)(C) in making the credibility determination. This section is permissive—the “immigration judge may base a credibility determination [on various factors].” Thus, the immigration judge was under no obligation, contrary to Boadi’s assertion, to, for instance, consider Boadi’s demeanor, evasiveness, or internal inconsistency. See also id. (noting “there is no presumption of credibility” and permitting the immigration judge to consider “the totality of the circumstances” and the “inherent plausibility of the applicant’s or witness’s account”). Thus, the immigration judge correctly followed the law in determining Boadi was not believable.

D. Weight of the Evidence

Finally, Boadi’s assertion that the immigration judge’s decision was against the manifest weight of the evidence, as the name suggests, requests that we reweigh the immigration judge’s assessment of the evidence—something we cannot do when the application for relief is in the Attorney General’s discretion. 8 U .S.C. § 1252(a). However, Boadi again tries to couch this claim as legal. First, Boadi argues that 8 C.F.R. § 216.5(e)(2)(i)-(iv) required the immigration judge to place more weight on the bills and bank account statements that bore both his and Bonds’s name. That regulation, however, merely lists evidence an applicant “may” submit. It does not require the immigration judge to attach a certain weight to it.

Boadi also argues that the immigration judge focused exclusively on Boadi and Bonds’s conduct after the marriage. Boadi essentially argues that too much emphasis on after-the-marriage conduct runs afoul of the statute’s requirement that the marriage be “entered into” in good faith—i.e., the couple’s intention at the time of marriage. However, conduct after the marriage is certainly relevant to determining Boadi’s intention at the time of his marriage. A bona fide couple’s decision to have children, buy a house together, or introduce one another to the other’s children suggests that they intend to begin a life together. These considerations are not dispositive—a fraudulent marriage could exhibit similar tendencies just like bona fide couples could live apart or speak infrequently. But they are relevant, and an immigration judge is charged with placing the appropriate weight on them, which 8 U.S.C. § 1252(a) prevents us from second guessing.

III. Conclusion

For the foregoing reasons, we Deny Boadi’s petition.

FOOTNOTES

1. Because Boadi was removable under this section, the immigration judge did not reach the issue of removability under sections 1227(a)(1)(A) (obtaining immigration benefit by fraud) or 1227(a)(1)(B) (exceeding the authorization of his visa).

2. Boadi also argues the immigration judge’s conduct violated his rights in a third way—that the Board failed to consider the “implications” of this procedural posture. Boadi does not explain what these implications are beyond having to proceed pro se when the government examined its witness and having twenty days to secure Chicago counsel instead of more time to secure Cleveland counsel, both of which we consider.

3. Boadi initially asserted that these procedural irregularities deprived him of due process under the Fifth Amendment. However, as Boadi recognizes in his reply brief, the good-faith marriage waiver is discretionary. Discretionary waivers (i.e., the waiver of inadmissibility) are not liberty interests and do not implicate the Constitution. See Lagunas–Salgado v. Holder, 584 F.3d 707, 712–13 (7th Cir.2009); Kahn v. Mukasey, 517 F.3d 513, 518 (7th Cir.2008).

FLAUM, Circuit Judge.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Good-Faith Marriage Waiver | Tagged | Leave a comment

CA7 on In Absentia Orders of Removal

CA7 on In Absentia Orders of Removal: The court set aside the in absentia order of removal, finding that the petitioner was not given an opportunity to present evidence that her case should be reopened because she never received notice of the hearing.

A Lithuanian national, Smykiene entered the U.S. in 1995 on a visitor’s visa. Six months after it expired, she was arrested by Border Patrol officers in New York. The officers gave her an order to show cause why she should not be deported and also told her to provide an address. The Immigration Court sent certified mail to the address that Smykiene with her hearing notice. The Postal Service returned the mail with the notation “Attempted—Not Known.” There was no follow-up. Smykiene did not appear and the immigration judge ordered her deported. A year later she married a man who, two years after that, became a naturalized U.S. citizen. In 2010, when authorities located her, Smykiene swore that she had not received the notice and that at the time she was handed the order to show cause she couldn’t understand English. The Board of Immigration Appeals affirmed an order of removal. The Seventh Circuit remanded, stating that: “The government cites no authority for the proposition that an innocent mistake, especially of the kind likely to be made by a newcomer … from a non-English-speaking country, forfeits the right to reopen an order of removal in absentia.”

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SMYKIENE v. HOLDER

Elena SMYKIENE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 12–1800, 12–2877.

Argued Jan. 18, 2013. — February 13, 2013 Before POSNER, FLAUM, and SYKES, Circuit Judges.

Y. Judd Azulay, Shannon M. Shepherd, Immigration Attorneys, LLP, Chicago, IL, for Petitioner. Melissa K. Lott, Leslie M. McKay, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Elena Smykiene asks us to set aside the order of the Board of Immigration Appeals affirming an immigration judge’s order that she be removed to Lithuania, and the Board’s subsequent order denying her petition to reconsider its previous one. (We won’t have to discuss the second petition, which challenges the denial of reconsideration and which we hereby dismiss as moot.) Her petition for review presents questions concerning orders of removal in absentia.

A Lithuanian national, Smykiene entered the United States in 1995 on a visitor’s visa. It expired in six months but she remained. Six months after it expired, in April 1996, she was arrested by U.S. Border Patrol officers in upstate New York. She was not jailed, but the arresting officers gave her an order to show cause why she should not be deported and also told her to provide them with her address. She gave them the following address: “4711 St. Joseph Creek Rd., Lisle, IL 60532 (‘Lisle Condo’).” She says this was an apartment house owned or leased by her employer and that she lived there with five other Eastern European women, all of whom, like her, worked as maids. The immigration judge conducted no evidentiary hearing, so the validity of these contentions has not been determined.

On July 22, 1996, the Immigration Court sent by certified mail to the address that Smykiene had given the Border Patrol a notice (called “notice to appear”) that her hearing before the court would be held on December 11. The Postal Service returned the mail to the sender with the notation “Attempted—Not Known,” which means that delivery was attempted but that the addressee was not known at the address to which the letter was delivered. There was no follow-up. December 11 came, Smykiene did not appear, and the immigration judge ordered her deported. (What is now called “removing” was then called “deporting”; in the rest of this opinion we’ll use the current term.)

She says that a year later she married a man who, two years after that, became a naturalized U.S. citizen. So matters stood until November 23, 2010, when immigration officers showed up at her home (she was still living in DuPage County, where Lisle is located, but no longer in Lisle) and told her about the 14–year–old order of removal. A lawyer hired by her filed a motion to reopen the removal proceeding and rescind the removal order on the ground that his client had never received the notice of the removal hearing. The lawyer attached an affidavit in which Smykiene swore that she had not received the notice and that at the time she was handed the order to show cause she couldn’t understand English. The affidavit, together with the notice that the Postal Service returned, is the only actual evidence in the case; we print the affidavit as an appendix to this opinion.

We set to one side issues of prosecutorial discretion—they are not our business, though we can’t forbear to express our puzzlement that the government should be trying to remove a woman who for all they know is married to an American citizen and has lived in this country for 17 years without incident.

An alien cannot be ordered removed from the United States without notice and an opportunity to be heard. Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”). The alien can waive his right to a removal hearing; he does so if having received notice of the hearing he decides to skip it; and in that case he can be ordered removed without a hearing—that is, ordered “in absentia ” to be removed. Sabir v. Gonzales, 421 F.3d 456, 458 (7th Cir.2005). But if he never received the notice, there is no waiver and so he is entitled to reopen the removal proceeding to enable him to contest removal. Id. at 458–59. That is, an order of removal in absentia “may be rescinded ․ upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) ․ of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii). Section 1229(a)(1) provides that “written notice ․ shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien).”

As explained in Joshi v. Ashcroft, 389 F.3d 732, 736 (7th Cir.2004), “the fact that the intended recipient did not actually receive notice does not contradict evidence that delivery was attempted and the notice requirement thus satisfied. But when as in this case the issue is not notice but receipt, because the statute allows an alien ordered removed in an absentia proceeding to reopen the proceeding if he did not receive notice even if the notice that was sent, whether or not it was received, satisfied statutory and constitutional requirements, the intended recipient’s affidavit of nonreceipt is evidence.”

In denying Smykiene’s motion to reopen, the immigration judge confused notice with receipt, as well as overlooking our statement in Joshi that an affidavit of nonreceipt is evidence of nonreceipt. He said that Smykiene had been “properly ․ notified of her hearing,” since the address on the letter returned to sender was the address she’d given the arresting officer, and that instead of showing up at the hearing she had “waited over 14 years before filing a motion to reopen, and did so only after she was arrested ․ and notified she would have to report for deportation.” A person is not “notified” if though notice was sent, it was not received. If Smykiene did not receive the notice she wouldn’t have realized that she’d been ordered removed and so had better move to reopen. In this court the government acknowledges that she didn’t receive the notice.

The immigration judge, in support of his rebuke to her for “wait[ing] over 14 years before filing a motion to reopen,” added that she’d “presumptively received” if not the notice then the actual order of removal, because it had been mailed to her. But if she didn’t receive the notice of the hearing, why would she be expected to have received a subsequent mailing to the same address? (We don’t know what happened to that second letter.)

The immigration judge pointed out that an alien “cannot avoid notice by refusing to accept the notice or by providing an address at which she does not reside.” And that is true; the alien who evades notice can’t reopen the removal hearing. Peralta–Cabrera v. Gonzales, 501 F.3d 837, 843–44 (7th Cir.2007); Sabir v. Gonzales, supra, 421 F.3d at 459; Sanchez v. Holder, 627 F.3d 226, 233–34 (6th Cir.2010). But there is no evidence that Smykiene refused to accept the certified letter notifying her of the removal hearing; had she refused, the Postal Service would if it followed its customary procedures have stamped “Refused” on it rather than “Attempted—Not Known.” Nor is there evidence that she hadn’t given the arresting officers her actual address (though later we’ll see there’s a question of the accuracy of the address she gave) or had otherwise attempted to evade the notice of hearing. Indeed no evidence concerning receipt was presented besides the returned letter and her affidavit, as there was no evidentiary hearing on her motion to reopen.

Smykiene concedes that proper notice was sent; the government agrees that it was not received; so the only question is whether she evaded receipt. Once nonreceipt is attested in an affidavit and there is no conclusive evidence of evasion, the alien is entitled to an evidentiary hearing. Dakaj v. Holder, 580 F.3d 479, 482–83 (7th Cir.2009) (per curiam); Joshi v. Ashcroft, supra, 389 F.3d at 735; Kozak v. Gonzales, 502 F.3d 34, 37–38 (1st Cir.2007); Nibagwire v. Gonzales, 450 F.3d 153, 157–58 (4th Cir.2006); Ghounem v. Ashcroft, 378 F.3d 740, 744–45 (8th Cir.2004); Salta v. INS, 314 F.3d 1076, 1079–80 (9th Cir.2002). We needn’t decide who has the burden of persuasion if an issue of evasion is raised in the evidentiary hearing. The Board said in In re Grijalva, 21 I & N Dec. 27, 37 (BIA 1995), that given the “presumption of effective service” (that is, that mail is usually delivered), the alien “must present substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent’s failure to provide an address where he could receive mail.” But this standard, which substitutes a failure, even if completely innocent, to provide a correct address for evasion (in the sense of an intentional or reckless avoidance of receipt) as a ground for waiver of the right to a hearing, is not alluded to in the Board’s or immigration judge’s opinions in the present case; and anyway Smykiene hasn’t been given a hearing at which to present evidence that might meet the standard of the Grijalva case.

The confusion evident in the immigration judge’s opinion carried over to the Board’s decision affirming him. The Board said that “in light of the documentary evidence in the record that the NOH [Notice of Hearing] was sent by certified mail through the U.S. Postal Service and there is proof of attempted delivery and notification of certified mail to the respondent, we agree with the Immigration Judge that the respondent received proper notice of the hearing. Therefore, the respondent has failed to overcome the strong presumption of effective service.” In saying this the Board repeated the immigration judge’s elementary mistake of confusing notice with receipt. Mail is sometimes misdelivered. Nothing is known for certain about the living arrangements in the condo in Lisle, although Smykiene asserts, thus far without contradiction, that several Eastern European maids were living there, she among them. Their English may have been atrocious. They may have been illiterate in English. They may all have been living in the same apartment and Smykiene’s name may not have been on the list of residents posted (one assumes) at the condo’s entrance. It wouldn’t be surprising in these circumstances that she hadn’t received a letter addressed to her.

In parentheses the Board states that an immigration judge “may rescind an order of removal entered in absentia if the alien demonstrates that without her own fault she did not receive notice of her removal hearing” (emphasis in original). This is offered as a paraphrase of our holding in the Sabir case, which we cited earlier. It is an inaccurate paraphrase. The opinion in Sabir, after noting that “it is undisputed that Sabir did not receive the notice of his hearing—the record shows that it was returned to the immigration court marked ‘AttemptedNot Known,’ ” asks: “what if, as the IJ speculated, it was Sabir’s own fault that the notice was not delivered?” Sabir v. Gonzales, supra, 421 F.3d at 459. The speculation was “that Sabir thwarted delivery of the notice by changing the name on his mailbox.” Id. We noted that the change had not been described and that anyway the Postal Service considers the name on a customer’s mailbox irrelevant to delivery. And so the immigration judge had “erred in denying Sabir’s motion to reopen in the face of conclusive proof that Sabir did not receive the notice.” Id. The opinion does not place the burden of negating evasion on the alien, as the Board in the present case interpreted it to do.

The Board also faulted Smykiene for having failed to notify the Immigration Court of her change or changes of address, as required to do so by the order to show cause. But there is no evidence that she changed addresses during the relevant time.

We note one more garble in the Board’s opinion—another misleading parenthetical description of a holding, this one a holding in its Grijalva decision cited earlier. The parenthetical states: “a hearing notice which is sent by certified mail to the alien’s last known address is sufficient to establish by clear, unequivocal, and convincing evidence that the alien received notice of the deportation hearing.” (emphasis added). That is not what the Board said in Grijalva. It said that mailing notice to the alien’s last known address meets the statutory requirement of providing notice; it clearly and correctly distinguished between notice and receipt of notice. In re Grijalva, supra, 21 I & N Dec. at 34, 36. We don’t understand how the Board could have missed this fundamental distinction in the present case.

Compounding confusion gratuitously, Smykiene’s opening brief asserts that she accidentally failed to give the Border Patrol officers her full address. She left out the last four digits of the nine-digit zip code and the number of her apartment. The first error would have been inconsequential, but the second would have increased the probability that she would not receive the notice. It is odd that her lawyer would assert that his client had given the Border Patrol an incomplete address, for that would suggest that the misdelivery of the notice of hearing was her fault after all; and indeed the Justice Department’s lawyer pounced on the assertion to support the argument that it was indeed her fault. But this is to use “fault” in a lay rather than legal sense. The government cites no authority for the proposition that an innocent mistake, especially of the kind likely to be made by a newcomer to the United States from a non-English-speaking country, forfeits the right to reopen an order of removal in absentia. Suppose Smykiene didn’t understand the order to show cause, and knew only that she had to give the officers her address. Suppose in doing so she didn’t realize that her apartment number was part of the address, or that in her anxiety she simply forgot to include it. Suppose when she didn’t receive any communication from the government after her arrest she assumed that the government had decided not to bother with her; arrests often don’t lead to prosecutions. If these are the circumstances—they are consistent with and to a degree supported by her affidavit—we doubt that the Board would enforce the in absentia removal order, for it is a grave matter to eject a person from the United States without giving her an opportunity to show that she should be allowed to remain, for example because she has married an American citizen. Anyway an appellate brief is not the place to allege new adjudicative facts, as Smykiene’s lawyer pointlessly did.

Whatever standard Smykiene must meet to reopen her case, she has been given no opportunity to meet it, and so the Board’s order must be set aside.

In closing we note our dissatisfaction with the Justice Department’s advocacy in this case. Its brief states that Smykiene “needed to at least minimally try to explain the unsuccessful delivery of her hearing notice, perhaps by providing some direct or circumstantial evidence that the address she gave to INS agents in April 1996 was correct and was still the address at which she could be reached in July 1996 when the hearing notice was mailed to her.” We’ll forgive the cumbrously split infinitive but not that when we pointed out at the oral argument that Smykiene was given no opportunity to explain anything, the Justice Department’s lawyer switched gears and argued that to contest an in absentia order of removal the alien must plead that she did not receive the notice to appear, that she was still at the address to which the notice was mailed, and that she was not trying to thwart delivery, as by giving a false address or simply not opening mail that she knew to be from the Immigration Court (which she might not know, if indeed she was illiterate in English). But failure to plead these things was not the ground of the Board’s decision and has, so far as we have been told, no basis in the Board’s case law. So once again the Justice Department in defending the Board of Immigration Appeals in a court of appeals has violated the Chenery doctrine. See, e.g., Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir.2011); Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir.2008); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir.2004); Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir.2010).

The petition for review is granted and the matter returned to the Board for further proceedings.

Appendix: Elena Smykiene’s Affidavit

I, Elena Smykiene, do hereby swear and affirm the following:

1. On April 20, 1996, I was sleeping in a room in the Budgetel Hotel, in Plattsburgh, New York.

2. At about 6:00 in the morning, I was awakened by a terrible knock on the door. I didn’t know what was happening. I thought maybe it there was a fire.

3. When I opened the door, I saw a tall, white blue eyed man standing there. He said something, but I could not understand him. I do remember him saying “Immigration”. I did not speak or understand English at that time. I spoke only Lithuanian, Polish, Russian, and Ukrainian. It turned out that he was an immigration officer. He spoke very angrily. I understood that something was wrong. He said something else which I did not understand. Finally, he gestured with his hand, and I realized he wanted me to go with him.

4. We took the elevator to the lobby. There I saw several other Lithuanians, and two other immigration officers.

5. The immigration officers were saying something, but I did not understand them. Finally one of the Lithuanians who understood some English said that we had to show our documents, and if we did not we would go to jail.

6. I went to my room escorted by the angry man. I gave him my passport and social security card. He said something else, which I did not understand. We went back to the lobby, and the officers said something else. The Lithuanian man who knew a little English, explained that we had to go the Immigration office.

7. I was driven to the Immigration office. There, they put us all in a separate room.

8. An officer came and starting taking our pictures and fingerprints, like we were criminals. When my turn came, the same angry man called my name. He told me to take a seat next to him. He copied something down from my passport. He asked me something very angrily, but I did not understand him. I was very afraid. He showed me the place where I had to sign. I signed but did not know or understand what I was signing. There were two other officers that I saw. None of the officers spoke to me in a language that I could understand.

9. That same day I called an acquaintance in Chicago. A Lithuanian man helped me buy a bus ticket to Chicago. My acquaintance met me at the bus station in Chicago.

10. I did not receive a notice from the Immigration Court telling me to court to court. I was not told what would happen if I did not go to Court.

11. When I came to Chicago, I got sick and depressed, because the incident frightened me very much. Even now after so many years passing, I cannot forget what happened to me that day in 1996. I was so very frightened.

12. Immigration officers recently came to my home, and told me that I have to report to their office on January 11, 2011.

POSNER, Circuit Judge.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, In Absentia Orders of Removal | Tagged | Leave a comment

CA7 Holds Fraudulent Use of Social Security Card is CIMT

CA7 Holds Fraudulent Use of Social Security Card is CIMT. The court held that the petitioner was not eligible for cancellation of removal because his prior conviction for using a Social Security card to obtain and maintain employment was a crime involving moral turpitude. (Marin-Rodriguez v. Holder 3/6/13)

Rodriquez entered the U.S. illegally in 1988 and came to the attention of the Department of Homeland Security in 2005, following a misdemeanor DUI conviction. He subsequently pleaded guilty to using a fraudulent social security card, 18 U.S.C. 1546(a). He sought cancellation of removal based on hardship to his children, who are U.S. citizens, but failed to timely comply with the IJ’s request for biometrics. The IJ deemed the petition abandoned and ordered removal, after which Rodriguez provided the information. Following a remand, DHS notified the BIA that Rodriguez had been removed. BIA withdrew the remand. The Seventh Circuit remanded. An IJ then held that Rodriguez was ineligible for cancellation of removal, based on his conviction of a crime of moral turpitude (8 U.S.C. 1229b(b)(1)(C)). The BIA affirmed. The Seventh Circuit dismissed an appeal, holding that fraudulent use of a social security card is a crime involving moral turpitude.

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JOSE CONCEPCION MARIN-RODRIGUEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. No. 12-2253.

United States Court of Appeals, Seventh Circuit. Argued January 17, 2013. Decided March 6, 2013.

Before MANION and TINDER, Circuit Judges, and LEE, District Judge.[*]

MANION, Circuit Judge.

Jose Concepcion Marin-Rodriguez, a citizen of Mexico, sought cancellation of removal because his removal would cause hardship for his children, who are United States citizens. Ultimately, an Immigration Judge concluded that Rodriguez was not eligible for cancellation of removal because he had a prior conviction for using a fraudulent Social Security card to obtain and maintain employment that amounted to a crime involving moral turpitude. The Board of Immigration Appeals affirmed, and Rodriguez now petitions this court for review. Because the agency did not err in classifying Rodriguez’s conviction as one for a crime involving moral turpitude, we deny his petition.

I. Factual Background.

Rodriguez illegally entered the United States in 1988. Due to a misdemeanor DUI conviction in 2005, he came to the attention of the Department of Homeland Security (“DHS”), which initiated the process of removing him. During this process, the DHS discovered that he had been using a social security card and number not assigned to him. Rodriguez was charged with and pleaded guilty to using a fraudulent Social Security card to obtain and maintain employment within the United States in violation of 18 U.S.C. § 1546(a). Rodriguez’s guilty plea included the following stipulation:

The parties agree the facts constituting the offense to which the defendant is pleading guilty are as follows:

Between January 1999 and May 2005, the defendant, a citizen of Mexico who is not a citizen or national of the United States, used a social security card, knowing that card was not assigned to him and had been unlawfully obtained, to secure and maintain employment. . . in Wichita, Sedgwiek County, Kansas. Such a document, when authentic, is evidence that a person is authorized to be employed in the United States. The defendant used the fraudulent card for that purpose.

At a subsequent hearing before an Immigration Judge (“IJ”), Rodriguez conceded removability, but sought cancellation of removal. The IJ’s court was located in Chicago, Illinois, while Rodriguez appeared via tele-video from Kansas City, Missouri. Pursuant to the applicable regulations, see 8 C.F.R. § 1003.47(c)-(d), the IJ ordered Rodriguez to submit a set of fingerprints needed to determine his identity and whether he had any disqualifying criminal convictions. Fifteen months later, at his next hearing, Rodriguez still had not complied with the IJ’s order. Thus, another IJ (who was located in Kansas City, Missouri) deemed Rodriguez’s application for cancellation of removal abandoned for his “failure to fulfill the requirements of his biometrics and biographic information check.” The IJ then ordered Rodriguez removed. Rodriguez appealed to the Board of Immigration Appeals (“Board”). While his appeal was pending, Rodriguez submitted a set of fingerprints and moved to remand. The Board deemed his motion untimely and dismissed his appeal. But then Rodriguez moved for reconsideration, and the Board granted this motion and remanded to the Immigration Court.

Before the IJ could rule, however, the DHS asked the Board to reconsider because Rodriguez had already been removed to Mexico. Concluding that it lacked jurisdiction, the Board granted the DHS’ motion and withdrew its remand order. Rodriguez petitioned this court for relief. We held that the Board erred in ruling that it lacked jurisdiction, and we granted Rodriguez’s petition and remanded to the Board. See Marin-Rodriguez v. Holder, 612 F.3d 591, 594-95 (7th Cir. 2010). We observed, however, that our remand might provide little solace for Rodriguez because his section 1546(a) conviction could nevertheless frustrate his efforts to avoid removal. Id. The Board then remanded Rodriguez’s immigration proceedings to the Immigration Court. A new IJ, also located in Kansas City, Missouri, issued a written decision ruling that Rodriguez was ineligible for cancellation of removal because his section 1546(a) conviction was for a crime involving moral turpitude. On appeal, the Board adopted and affirmed the IJ’s decision. Rodriguez now petitions this court for review.[1]

II. Discussion.

On appeal, Rodriguez does not dispute that he would be ineligible for cancellation of removal if he was in fact convicted of a crime involving moral turpitude. See 8 U.S.C. § 1229b(b)(1)(C). But Rodriguez contends that the agency erred in concluding that his conviction for using a fraudulent Social Security card to obtain and maintain employment in violation of section 1546(a) constitutes a crime involving moral turpitude. “Whether an alien’s conviction is properly classified as a crime of moral turpitude is a question of law, so we may review it.” Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009) (citing 8 U.S.C. § 1252(a)(2)(D)). While legal questions are usually reviewed de novo, “[o]ur review of an agency’s determination of whether a particular crime should be classified as a crime of moral turpitude ordinarily is deferential under Chevron . . . .” Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010). But we do not extend Chevron deference to non-precedential Board decisions that do not rely on binding board precedent. Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011). Rather, such Board decisions are entitled only to Skidmore deference. Id. Therefore, because the Board opinion from which Rodriguez appeals is non-precedential, its interpretation of the immigration statutes and regulations is entitled to our respect—but only to the extent that interpretation has the “power to persuade.” Id.; Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).

The immigration statutes use but do not define the phrase “crime involving moral turpitude.” See 8 U.S.C. § 1182(a)(2)(A)(i)(I); 8 U.S.C. § 1227(a)(2)(A)(i)(I). And until 2008, the “absence of an authoritative administrative methodology for resolving moral turpitude inquiries ha[d] resulted in different approaches across the country.” Silva-Trevino, 24 I. & N. Dec. 687, 693 (AG 2008). Thus, the agency would apply the law of the circuit in which an alien’s case arose. Id. Like most circuits, our decisions generally applied the categorical and modified categorical framework adopted by Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), for applying recidivist enhancements in federal criminal prosecutions. See Ali v. Mukasey, 521 F.3d 737, 741, 742 n.† (7th Cir. 2008); Hashish v. Gonzales, 442 F.3d 572, 575-76 (7th Cir. 2006) (collecting cases). Under that approach, the decisionmaker would “determine whether a given crime necessarily involves moral turpitude by examining only the elements of the statute under which the alien was convicted and the record of conviction, not the circumstances surrounding the particular transgression.” Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005) (internal quotation marks omitted).

Then, in Ali v. Mukasey, we relied upon 8 U.S.C. § 1229a(c)(3)(B) and Babaisakov, 24 I. & N. Dec. 306 (BIA 2007), to hold that “when deciding how to classify convictions under criteria that go beyond the criminal charge— such as whether the crime is one of `moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction.” 521 F.3d at 743. Subsequently, in 2008, the Attorney General relied upon Ali in adopting a hierarchical or sequential three-step inquiry to be used by the entire agency in deciding which crimes are morally turpitudinous. See Silva-Trevino, 24 I. & N. Dec. at 696-704. The first and second steps of this inquiry generally coincide with the categorical and modified categorical approaches, respectively. Id. However, the third step permits the IJ to consider any evidence beyond the statute and record of conviction, as in Ali. Id. This third step “is properly applied only where the record of conviction does not itself resolve the issue. . . .” Ahortalejo-Guzman, 25 I. & N. Dec. 465, 468 (BIA 2011). We have determined that Silva-Trevino’s entire framework is entitled to Chevron deference.[2] See Mata-Guerrero, 627 F.3d at 260.[3]

Here, the agency applied the Silva-Trevino framework and concluded, at the first step, that section 1546(a) realistically encompasses some conduct that is not morally turpitudinous. At the second step, however, the agency found that Rodriguez’s record of conviction establishes that his crime involved moral turpitude. That decision was correct.

Crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous. See Jordan v. De George, 341 U.S. 223, 232 (1951) (“[T]he decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.”); Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005) (“Crimes entailing deceit or false statement are within the core of the common-law understanding of `moral turpitude.'”); Padilla, 397 F.3d at 1020-21 (collecting cases). And in Lagunas-Salgado v. Holder, we held that selling fraudulent immigration documents to illegal aliens is morally turpitudinous because it “involves inherently deceptive conduct.” 584 F.3d at 712. Similarly, other circuits have recognized that the use of false immigration documents involves the kind of deceit or fraud that renders a crime morally turpitudinous. See, e.g., Lateef v. Dep’t of Homeland Sec., 592 F.3d 926, 928, 931 (8th Cir. 2010) (holding alien’s conviction for “using an unlawfully obtained social security number” was for a crime involving moral turpitude); Omagah v. Ashcroft, 288 F.3d 254, 261-62 (5th Cir. 2002) (affirming Board ruling that “conspiracy to possess [illegal immigration documents] with intent to use does rise to the level of moral turpitude. . . .”).

Here, Rodriguez’s record of conviction reveals that, as part of his guilty plea, he admitted that he “used a social security card, knowing that card was not assigned to him and had been unlawfully obtained, to secure and maintain employment. . . .” He also admitted that he was aware that an authentic Social Security card could be used as evidence that a person is authorized to work in the United States. By knowingly presenting a false Social Security card to an employer to obtain and maintain unauthorized employment, Rodriguez not only violated the law but also engaged in deceptive conduct.

The deceptive nature of Rodriguez’s conduct is even more explicit than that of the alien’s conduct in Lagunas-Salgado. Here, Rodriguez’s use of a false Social Security card was directly deceptive: he presented the card to an employer with the intent to deceive that employer into thinking that he was legally employable. In contrast, the alien in Lagunas-Salgado was not directly deceiving anyone, but only selling false immigration documents to aliens who could then use them for deceptive purposes. See Lagunas-Salgado, 584 F.3d at 712 (“That the recipients themselves were not deceived does not change the fact that Lagunas-Salgado was selling fraudulent Social Security cards and alien registration cards and placing them out into the world.”). Lagunas-Salgado’s indirectly deceptive conduct was “inherently deceptive” because of the risk that the aliens purchasing the cards would use them deceptively— exactly the sort of deceptive use, as it happens, in which Rodriguez engaged. Consequently, Rodriguez’s directly deceptive use of a false Social Security card to obtain and maintain unauthorized employment a fortiori also “involves inherently deceptive conduct.”[4] And, as we already observed, crimes involving deceit are “within the core of the common-law understanding of `moral turpitude.'” Abdelqadar, 413 F.3d at 671. Therefore, we conclude that the agency did not err in holding that Rodriguez’s conviction was for a crime involving moral turpitude.

Rodriguez’s arguments to the contrary are not persuasive. Certainly, as Rodriguez points out, Board precedent establishes that a conviction for merely possessing an altered immigration document does not constitute a crime involving moral turpitude because an alien “might not have had the intent to use the altered immigration document in his possession unlawfully.” Serna, 20 I. & N. Dec. 579, 586 (BIA 1992). But, as with the alien in Lagunas-Salgado, Rodriguez “was not convicted of merely possessing a false document,” but rather of using that false document in a way that involved deception or the intent to deceive. 584 F.3d at 712. Similarly, Rodriguez’s arguments that his crime was not base, vile, fraudulent, or malum in se are without merit because, as we have explained, the agency did not err in finding that his conduct involved deception, and generally “a crime involving dishonesty or false statement is considered to be one involving moral turpitude.” Padilla, 397 F.3d at 1020 (quoting Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir. 2002) (internal quotation marks omitted)); see also Lagunas-Salgado, 584 F.3d at 712; Lateef, 592 F.3d at 928, 931; Omagah, 288 F.3d at 261-62.

Rodriguez also argues that his conviction for using a false Social Security card cannot be for a crime involving moral turpitude unless the underlying conduct was also illegal. Rodriguez contends that he only used the false Social Security card to obtain and maintain employment, which is not illegal.[5] Rodriguez’s position is not tenable in light of the rule that crimes involving deception are morally turpitudinous. Furthermore, the Board decisions cited by Rodriguez—Granados, 16 I. & N. Dec. 726 (BIA 1979) (holding that possessing a concealed weapon is not a crime involving moral turpitude), and S-, 6 I. & N. Dec. 769 (BIA 1955) (holding that possessing instruments of house-breaking is not a crime involving moral turpitude)—are distinguishable because they involved convictions for merely possessing unlawful items. As we explained above, possession is different from use. And, unlike Rodriguez’s use of a false Social Security card, merely possessing weapons or burglary implements does not involve deception.

However, Rodriguez also relies on Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000), wherein the Ninth Circuit looked to the legislative history of 42 U.S.C. § 408(d)(1)[6] to rule that the “use of a false Social Security number to further otherwise legal behavior is not a crime of `moral turpitude’ . . . .” The Ninth Circuit relied, specifically, upon a congressional conference committee report stating that the exemption from prosecution provided by section 408(d)(1) only applies “to those individuals who use a false social security number to engage in otherwise lawful conduct.”[7] H.R. Conf. Rep. No. 101-964, at 948 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2653. The report also states that the “Conferees believe that individuals who are provided exemption from prosecution under this proposal should not be considered to have exhibited moral turpitude with respect to the exempted acts for purposes of determinations made by the Immigration and Naturalization Service.” Id.

However, the Fifth, Sixth, and Eighth circuits have all declined to follow Beltran-Tirado. See Guardado-Garcia, 615 F.3d at 902-03; Serrato-Soto v. Holder, 570 F.3d 686, 692 (6th Cir. 2009); Hyder v. Keisler, 506 F.3d 388, 393 (5th Cir. 2007). We now join those circuits in declining to follow a decision that “appears to have expanded a narrow exemption beyond what Congress intended.” Hyder, 506 F.3d at 393. As Rodriguez concedes, section 408(d)(1) and its attendant legislative history do not apply to him. And “[t]he mere fact that Congress chose to exempt a certain class of aliens from prosecution for certain acts does not necessarily mean that those acts do not involve moral turpitude in other contexts.” Id. Furthermore, to adopt the reasoning in Beltran-Tirado would be to depart, at least partly, from our precedent establishing that crimes of deceit and fraud involve moral turpitude. See, e.g., Abdelqadar, 413 F.3d at 671; Padilla, 397 F.3d at 1020-21. We agree with the Fifth and Sixth circuits that such a departure from our precedent would not be appropriate. See Serrato-Soto, 570 F.3d at 692 (“And in declining to follow Beltran-Tirado, we do not disturb established Sixth Circuit precedent finding crimes of fraud or dishonesty within the class of crimes involving moral turpitude.”); Hyder, 506 F.3d at 393.

III. Conclusion.

Because the agency correctly determined that Jose Concepcion Marin-Rodriguez’s prior conviction for using a fraudulent Social Security card to obtain and maintain employment was for a crime involving moral turpitude, we DENY the petition for review.

[*] Honorable John Z. Lee, of the Northern District of Illinois, sitting by designation.

[1] Because Rodriguez and the conclusion of his immigration proceedings were located in Missouri, the DHS observes in its brief that the Eighth Circuit, rather than our circuit, is the correct venue for this case. However, the agency expressly waives any challenge to venue.

[2] In his brief, Rodriguez questions whether the third step of the Silva-Trevino framework permits as broad a consideration of additional evidence as permitted under the standard articulated in Ali. Regardless, as discussed below, the agency resolved Rodriguez’s case at the second step, and he was given an opportunity to present any additional evidence he wished. Rodriguez also expresses doubts about the continued vitality of pre-Silva-Trevino decisions that held that convictions under section 1546 for conduct involving deceit or misuse of official documents were for crimes involving moral turpitude. We need not address this quandary because, as we discuss below, Rodriguez’s petition can be disposed of based on our decision in Lagunas-Salgado, 584 F.3d at 712, which post-dates Silva-Trevino.

[3] A number of circuits have rejected the third step of the Silva-Trevino framework. See Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012); Fajardo v. Att’y Gen., 659 F.3d 1303, 1310 (11th Cir. 2011); Jean-Louis v. Att’y Gen., 582 F.3d 462, 482 (3d Cir. 2009); see also Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010) (“We are bound by our circuit’s precedent, and to the extent Silva-Trevino is inconsistent, we adhere to circuit law.”). However, as discussed below, the agency resolved Rodriguez’s case at the second step (which is generally consistent with the modified categorical approach).

[4] Because Rodriguez’s conduct was inherently deceptive, Lagunas-Salgado disposes of Rodriguez’s contention that it is possible that he did not actually deceive his employer when he presented his false Social Security card. His use of a false Social Security card to obtain and maintain unauthorized employment evidences an intent to deceive his employer regardless of whether the employer was actually deceived. Cf. Omagah, 288 F.3d at 261. In fact, Rodriguez carried the burden of establishing his eligibility for cancellation, see 8 C.F.R. § 1240.8(d), yet he failed to offer any evidence that his employer was not deceived or that he did not intend to deceive his employer when he used the false Social Security card.

[5] Rodriguez is correct that federal law does not impose criminal penalties on illegal aliens merely because they work in the United States. See Arizona v. United States, 132 S. Ct. 2492, 2495 (2012). But that federal law imposes civil penalties on such conduct when detected, and criminal as well as civil penalties on employers who hire illegal aliens, demonstrates that such conduct is far from innocent or praiseworthy—even if ubiquitous.

[6] Subsequently recodified at 42 U.S.C. § 408(e).

[7] Rodriguez cites this report in his brief; but only for the proposition that a crime cannot be morally turpitudinous if it is not malum in se—an argument that we have addressed above and need not belabor here.

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