Introduction: Godfrey v. Lynch

On January 22, 2016, the United States Court of Appeals for the Eight Circuit issued a precedent decision in Godfrey v. Lynch, —- F.3d —-, (8th Cir. 2016) [PDF version]. The case concerned an alien who was found inadmissible under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) for making a false representation of citizenship to obtain benefits under the INA. The charge stemmed from the alien checking a box on the Form I-9 that indicated he was “a citizen or national of the United States.” The Eighth Circuit ultimately affirmed the Board of Immigration Appeals’ (BIA’s) decision that the finding that the alien had intended to represent himself as a “citizen” and not as a “national” was supported by substantial evidence.

In this article, we will examine the facts of the case and the reasoning behind the Eighth Circuit’s precedent decision.

Distinction between “Citizen” and “National”

This article will deal with the terms U.S. “citizen” and “national.” As stated in section 301 of the INA, all U.S. citizens are U.S. nationals. However, as explained in section 308 of the INA, there are limited cases in which a person is a U.S. national but not a citizen. Currently this only applies to those born in American Samoa or Swains Island, certain persons from the Northern Mariana Islands (although persons born in the Northern Mariana Islands are entitled to citizenship at birth), and certain children of U.S. nationals.

Facts of the Case: Godfrey v. Lynch

The petitioner entered the United States in 2002 on F1 status.
The petitioner violated his F1 status, but remained in the United States. He married a U.S. citizen in 2004.
The petitioner obtained work and on multiple occasions, checked a box on the I-9 Employment Eligibility Verification form indicating that he was “a citizen or national of the United States.”
In 2005, the petitioner’s wife filed a Form I-130 on his behalf. The Form I-130 was approved in 2006.
In 2006, the petitioner applied for adjustment of status. However, adjustment was denied after he admitted to the United States Citizenship and Immigration Services (USCIS) that he had falsely represented that he was a U.S. citizen when applying to community college.
In 2009, the petitioner was served with a notice to appear for violating his initial F1 visa. In proceedings, he conceded removability and requested a hearing on his adjustment of status application.
In 2010, USCIS opposed the petitioner’s adjustment of status application on account of his prior false representations of U.S. citizenship. During proceedings, the petitioner admitted that he had indicated he was a U.S. citizen on the Forms I-9 in the hope that it would help him obtain the jobs he was applying for.
The Immigration Judge (IJ) stated that he would not consider the Forms I-9 because they were not in the record before him, and indicated that he would approve the adjustment of status application after the petitioner completed his biometrics.
However, before the next hearing, USCIS submitted into the record another Form I-9 that the petitioner had completed after the commencement of removal proceedings where he indicated that he was “a citizen or national of the United States.” The petitioner filed a supplemental brief and additional evidence. The IJ accepted both items into the record.
The petitioner testified that he did not have the instruction form when he filled out the I-94. He stated that while he did not know what “national” meant, he knew what a “citizen” was and suspected that being a citizen was better than being a national. He testified that he marked the box on the Form I-9 in order to keep his job.
The IJ found the testimony credible. However, the IJ nevertheless found that the petitioner had falsely represented himself to be a citizen, not a national. The IJ cited that the petitioner testified he knew there was a difference between being a citizen and national, that checking the box would be more helpful in obtaining employment, and that he would lose his job if he was not a citizen. Furthermore, the IJ found it significant that the misrepresentation occurred during removal proceedings. Accordingly, the IJ found that the petitioner failed to demonstrate “clearly and beyond a doubt” that he was admissible because he had purposely misrepresented himself as a citizen in order to obtain a benefit under the INA in violation of section 212(a)(6)(C)(ii)(I). The IJ denied the petitioner’s adjustment of status application and ordered him removed from the United States.
The BIA dismissed the petitioner’s appeal after affirming the IJ’s findings and rejecting the petitioner’s argument that the IJ was in error in reopening the record to accepted the Forms I-9.
The petitioner appealed to the Eighth Circuit. Initially, the Eighth Circuit granted his motion and remanded to the BIA for it to consider whether the Form I-9 could be used as evidence in removal proceedings. In accordance with the Eighth Circuit’s subsequent decision in Downs v. Holder, 758 F.3d 994, 998 (8th Cir. 2014) and the BIA’s own precedent decision in the Matter of Bett, 26 I&N Dec. 437 (BIA 2014) [PDF version], both of which held the Form I-9 could be used as evidence, the BIA again dismissed the petitioner’s appeal.

Decision: Godfrey v. Lynch

Ultimately, the Eighth Circuit affirmed the BIA’s decision on all counts and accordingly denied the petitioner’s petition. The decision notes that the petitioner made three claims:

1. The Immigration Judge’s and BIA’s decisions were unsupported by substantial evidence;
2. The petitioner is eligible for a waiver of inadmissibility;
3. The Immigration Judge’s decision to consider the Forms I-9 after he initially indicated he would grant the petition violated due process.

For this article, we will only discuss points 1 and 3. It is worth noting that the Eighth Circuit affirmed the BIA in finding that the petitioner was not eligible for a waiver of section 212(a)(6)(C)(ii)(I) inadmissibility because there was no waiver available to him.

Substantial Evidence

The petitioner argued that the BIA’s finding that he had represented himself to be a “citizen” rather than a “national” on the Form I-9 was unsupported by substantial evidence. This is significant because section 212(a)(6)(C)(ii) only renders an alien inadmissible if he or she makes a false representation of citizenship to procure a benefit under the INA, but contains no such provision for making a false representation of being a U.S. national.

The Eighth Circuit noted because the box on the Form I-9 in question asked whether the person was a “citizen or national,” merely checking the box is not determinative.1 Instead, the alien’s purpose in checking the box is determinative. Citing another one of its precedent decisions,2 the Eighth Circuit stated that the alien must show “clearly and beyond a reasonable doubt” that he or she did not make a false representation of citizenship in checking the box on the Form I-9.

First, the petitioner argued that the IJ did not properly analyze the legal issue because the IJ misquoted from the Form I-9 in his summary of the evidence (“citizen and nationality” box rather than “citizen or nationality” box). However, the Eighth Circuit rejected this argument because the record as a whole showed that the IJ properly analyzed the issue and that he had in other places properly quoted from the Form I-9. Additionally, the BIA discussed this as well.

The petitioner argued that the IJ’s decision was unsupported by substantial evidence because the IJ found the petitioner’s testimony credible, and in that testimony the petitioner stated that he did not know the difference between a “citizen” and “national.” According to the petitioner’s argument, granting this point meant that it was impossible that he could have purposefully intended to represent himself as a U.S. citizen. However, the Eighth Circuit rejected this argument for the same reasons as the IJ. First, the petitioner had also admitted that he believed he needed to represent himself as a citizen to keep his job. Second, the petitioner made this representation after the commencement of removal proceedings. Third, the Eighth Circuit found that the record supported the IJ’s finding that the petitioner’s prior admitted false claims of citizenship, which led to the initial denial of his adjustment of status application, were evidence of his intent to represent himself as a citizen. Finally, the Eighth Circuit noted that the petitioner submitted no evidence that he had intended to represent himself as a “national,” and that any such evidence would have contradicted his testimony that he did not know what a “national” was.

Accordingly, the Eighth Circuit found that the BIA’s and IJ’s finding on this issue was supported by substantial evidence.

Due Process

The petitioner argued that his Due Process rights were violated when the IJ admitted evidence of his false representation on the Form I-9 after he had already granted the petitioner’s petition for adjustment of status. The Eighth Circuit rejected this argument in its entirety.

First, the Eighth Circuit noted that the IJ accepted the evidence into the record after he had continued the hearing for the petitioner to have his biometrics taken, but before he had formally granted adjustment of status. Accordingly, under 8 C.F.R. 1003.23(a), the hearing was not closed because the IJ had not entered an order granting adjustment of status. Under section 240(b)(1) of the INA, the IJ had discretion to reopen the record and consider new evidence.

Second, the Eighth Circuit held that the IJ’s decision to admit the Form I-9 did not violate the petitioner’s due process rights. This is because the decision to admit the Form I-9 in no way constituted a “fundamental procedural error” and that the petitioner was given ample opportunity to testify and submit his own evidence.

Conclusion: Godfrey v. Lynch

In the instant case, despite the ambiguity in that the Form I-9 asked whether one was “a citizen or national of the United States,” the substantial evidence in the record allowed the Eighth Circuit to affirm the BIA’s and IJ’s decisions that the petitioner was inadmissible under section 212(a)(6)(C)(ii)(I) of the INA. In short, the evidence indicated strongly that the petitioner had intended to represent himself as a citizen. It should be noted that 212(a)(6)(C)(ii)(I) inadmissibility is particularly punitive both because it attaches for life and it cannot be waived by section 212(i).

The case should serve as a reminder that being found to be inadmissible under section 212(a)(6)(C)(ii)(I) will ultimately be fatal to an alien’s ability to obtain lawful immigration status in the United States. If an alien is ever legitimately confused about the content of an immigration form, he or she should seek guidance from an experienced immigration attorney.

Fortunately, as the decision noted, the USCIS updated the Form I-9 in 2009 such that it now has separate boxes for “citizen” and “national.”

  1. Citing its decision in Mayemba v. Holder, 776 F.3d 542, 545-56 (8th Cir. 2015)
  2. Kirong v. Mukasey, 529 F.3d 800, 805 (8th Cir. 2008)