2 false claim to USCcases, 6th Cir. Apr 22, 2013


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2 false claim to USCcases, 6th Cir. Apr 22, 2013

  1. 1. NOT RECOMMENDED FOR FULL-TEXT PUBLICATIONFile Name: 13a0395n.06No. 12-3858UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUITRAJESH KUMAR YEMULA,Petitioner,v.ERIC H. HOLDER, JR., Attorney General,Respondent.))))))))))ON PETITION FOR REVIEWFROM THE UNITED STATESBOARD OF IMMIGRATIONAPPEALSBEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; ZATKOFF, District Judge.*PER CURIAM. Rajesh Kumar Yemula, a citizen of India, petitions through counsel forreview of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from a decisionof an immigration judge (IJ) denying his applications for adjustment of status and cancellation ofremoval under 8 U.S.C. §§ 1255 and 1229b(b)(1).Yemula was born in India in 1966. He entered this country on a student visa in 1991. Heobtained a masters degree in computer science. He twice married United States citizens. Followinghis second marriage, Yemula’s wife applied for a visa on his behalf so that he could adjust his status.At an interview, Yemula was asked if he had ever misrepresented himself to be a United Statescitizen. Yemula replied that he had done so in order to be hired at his last two jobs. Yemula’sThe Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern*District of Michigan, sitting by designation.FILEDDEBORAH S. HUNT, ClerkApr 22, 2013Finally Judges are not legislating from the bench on the issue of false claims to USC in relation to the oldI-9 form. Aliens who entered illegally or fell out of status and checked the box on the old form thatindicated "national or citizen" are no longer getting a free pass. As explained in these cases, its a matter of"burden of proof" being on the alien to demonstrate admissibility vs. DHSs burden to prove removability.
  2. 2. No. 12-3858Yemula v. Holdercounsel interrupted him and advised him that, if he was not sure of his answers, he should withdrawhis application for adjustment of status. Yemula did withdraw that application. He was then issueda notice to appear, charging him with failing to maintain his student status and falsely representinghimself to be a United States citizen. Yemula admitted that he had failed to maintain his studentstatus, but denied the charge of falsely representing himself to be a United States citizen. A hearingwas held on that charge, after which the IJ concluded that the government had not borne its burdenof proving that charge (the government’s evidence was an I-9 form from 2000 on which a box hadbeen checked indicating that Yemula was a national or citizen). However, because he wasremovable for not having maintained his student status, Yemula applied for the above relief.Another hearing was held, at which Yemula testified that he did not remember marking thebox on the I-9 form in 2000, and did not believe that he would have done so. When questionedabout why he had withdrawn his application during the interview after being asked whether he hadmisrepresented himself to be a United States citizen, he testified that he did so on counsel’s adviceand because he did not know what an I-9 form was. Yemula also introduced a letter from ahandwriting expert who opined that it was not possible to tell who had checked the box on the I-9form, but nevertheless concluded that Yemula had not done so. In support of the application forcancellation of removal, Yemula and his wife testified that the wife and her two U.S. citizen childrenwould face exceptional and extremely unusual hardship if Yemula were deported, because he wasthe main breadwinner and the familywould be separated. The IJ denied adjustment of status, findingYemula not credible in his testimony denying having falsely claimed to be a United States citizen,and therefore inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). The IJ also denied cancellation of-2-
  3. 3. No. 12-3858Yemula v. Holderremoval, finding that Yemula has not demonstrated exceptional and extremely unusual hardship.The BIA dismissed Yemula’s appeal from the IJ’s decision.This court granted Yemula’s motion for a stay of removal, citing the apparent conflictbetween the finding that he was not removable for falselyrepresenting himself to be a United Statescitizen, and the finding that he was inadmissible on the same ground.Yemula challenges the IJ’s finding that his testimony regarding whether he had falselyrepresented himself as a United States citizen was not credible. We review a credibility finding forsubstantial evidence, which may include the IJ’s observation of the applicant’s demeanor, candor,and responsiveness. Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011). Here, the IJ relied onthese factors and Yemula has not shown that the IJ’s observations do not constitute substantialevidence. Moreover, the IJ relied on the crucial evidence that Yemula admitted falsely representinghimself as a United States citizen in order to obtain employment when he was initially interviewedfor adjustment of status. His explanation of why he withdrew that application following hisadmission was not persuasive. He did rely on advice of counsel, but not because he did not knowwhat an I-9 form was, which was not the question posed to him at that interview. Yemula also faultsthe IJ’s rejection of his handwriting expert’s opinion, but the reason for that was amply explainedby the lack of any basis for concluding that Yemula did not check the box on the I-9 form.Yemula also relies on United States v. Karaouni, 379 F.3d 1139, 1143 (9th Cir. 2004), forthe proposition that checking the box on an I-9 form indicating that one is a citizen or national of theUnited States is insufficient to establish a false claim to United States citizenship. However,Karaouni was a criminal case and penal statutes must be strictlyconstrued in favor of the defendant.-3-
  4. 4. No. 12-3858Yemula v. HolderHere, it was Yemula’s burden to prove that he was admissible clearly and beyond doubt. Hashmiv. Mukasey, 533 F.3d 700, 702 (8th Cir. 2008). The checked box on Yemula’s I-9 form weighedagainst him and, coupled with his admission in the interview, caused him not to meet his burden onthis issue. The fact that Yemula was not found removable for falsely representing himself to be aUnited States citizen, but was found inadmissible for the same reason, is also explained by theburden of proof. The government has the burden of proving grounds for removal, and the applicanthas the burden of proving admissibility. On the same facts, other cases have upheld these seeminglycontradictory conclusions. Id. at 703-04; Kirong v. Mukasey, 529 F.3d 800, 802-05 (8th Cir. 2008).In Kirong, the applicant, like Yemula, was unable to explain the difference between a citizen and anational, and was found not to have met the burden of proof that he clearly and beyond doubt hadnot falsely claimed United States citizenship. Kirong, 529 F.3d at 805. An alien was also foundinadmissible in another similar case, where he admitted in his interview that he has representedhimself as a citizen on an I-9 form. Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004).In summary, given the burden of proof on the applicant to establish his admissibility, andYemula’s failure to establish that he had not falsely claimed United States citizenship, we deny thepetition for review of the decision denying him adjustment of status.With regard to the denial of cancellation of removal, Yemula challenges only thediscretionary determination that he did not establish that his family would suffer exceptional andextremely unusual hardship. We lack jurisdiction to review that determination and, accordingly,dismiss the petition for review of the denial of cancellation of removal. See Ettienne v. Holder, 659F.3d 513, 518-19 (6th Cir. 2011).-4-
  5. 5. NOT RECOMMENDED FOR FULL-TEXT PUBLICATIONFile Name: 13a0398n.06No. 12-3903UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUITKAREN ANDREA MARTIAL-EMANUEL,Petitioner,v.ERIC H. HOLDER, JR., Attorney General,Respondent./ON PETITION FOR REVIEW OF AFINAL ORDER OF THE BOARD OFIMMIGRATION APPEALSBEFORE: MERRITT, CLAY, and DONALD, Circuit Judges.CLAY, Circuit Judge. Petitioner Karen Andrea Martial-Emanuel, a native of Guyana anda citizen of Canada, seeks review of the Board of Immigration Appeals’ denial of her application forcancellation of removal under § 240A of the Immigration and Nationality Act, 8 U.S.C. § 1229b.The Board adopted an Immigration Judge’s determination that Petitioner was ineligible forcancellation of removal because she could not establish that her United States citizen husband andson would suffer “exceptional and extremely unusual hardship” as a result of her removal. Becausewe find no constitutional or legal errors with the Board’s decision, we DENY the petition for review.FILEDDEBORAH S. HUNT, ClerkApr 22, 2013
  6. 6. No. 12-3903BACKGROUNDPetitioner and her husband, Lennox Emanuel, first met while the two were attending theUniversity of Windsor in Ontario, Canada. He entered the United States unlawfully in the early1980’s but was later naturalized and became a U.S. citizen. In 1984, Petitioner likewise entered theUnited States without a valid entry document, and she has resided in this country unlawfully sincethen. Petitioner has been employed nearly continuously since she arrived, working at departmentstores in New York City, Chicago, and Iowa City, while Emanuel attended law school at theUniversityof Iowa. Petitioner and Emanuel were married in 1991, and the couple had a son in 1994.In 1999, Petitioner and her family moved to metropolitan Detroit, where Emanuel works asan attorney and Petitioner works as a business consultant for the 7-11 corporation. The familypurchased a home in an affluent Detroit suburb, and their son began attending nearby schools. Byall accounts, the family’s relationship is strong and Petitioner’s son is performing well in school.However, Petitioner and her husband have had no shortage of financial difficulties, filing forbankruptcy in 1995. They currently owe more on their mortgage than the property is worth, as wellas over $100,000 in back taxes to the IRS. Because of the economic downturn, Emanuel’s currentincome is reputedly “negligible,” while Petitioner earns approximately $65,000 per year at 7-11.In September2006, Petitioner applied to the Department of Homeland Security(“DHS”) foran adjustment of her immigration status based on her marriage to a U.S. citizen spouse. It seems thatthis application first brought to the government’s attention the fact that Petitioner had been livingand working in the United States unlawfully. As part of its investigation, DHS discovered that whenshe first applied for a job with 7-11, Petitioner falsely attested that she was a citizen of the United2
  7. 7. No. 12-3903States in order to gain employment. The government further discovered that Petitioner had falselyclaimed to be a citizen when registering to vote in 2001. Petitioner testified that she believed shewas required to register in order to renew her driver’s license, but she does not appear to haveactuallyvoted in anyelections. As a result of these discoveries, DHS denied Petitioner’s applicationfor adjustment of status in August 2007.Afewmonthslater,thegovernmentinitiated removal proceedingsagainst Petitioner,allegingthat she was removable from the United States as an alien who falsely represented herself to be aU.S. citizen for a purpose or benefit, under 8 U.S.C. § 1182(a)(6)(C)(ii)(I), and as an alien who wasnot in possession of a valid entry document at the time of her application for admission, under 8U.S.C. § 1182(a)(7)(A)(i)(I). Petitioner conceded removability as charged. To avoid removal,Petitioner applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). To establish hereligibility for cancellation of removal, Petitioner was required to establish that her removal wouldresult in “exceptional and extremely unusual hardship” to her U.S. citizen husband or son.At a hearing before an Immigration Judge (“IJ”), Petitioner and her husband argued that herremoval to Canada would cause the family severe financial hardship and disrupt the life of theirteenage son. The evidence showed, and the IJ found, that the family would lose their home insuburban Detroit without the benefit of Petitioner’s income. Petitioner testified that although shehad not looked for work in Canada, she did not believe she could find a job there. Emanuel testifiedthat he would not be able to practice law in Canada, but he was unable to explain why he could notcontinue to practice law in Detroit while makingthe short commute from the nearbycityof Windsor,Ontario. Although Petitioner testified that she would likely relocate to Toronto if she were removed3
  8. 8. No. 12-3903to Canada, Windsor lies within sight of Detroit, is easily accessible by car, is familiar to Petitionerand Emanuel from before they came to the United States, and is where five of Petitioner’s siblingscurrently reside.Understandably, much of the testimony focused on the effect that removal would have onPetitioner’s son. At the time of the hearing before the IJ in September 2010, Petitioner’s son wasa junior in high school. He testified that he intended to apply to colleges, including the Universityof Michigan, Michigan State University, and Georgetown University. Presumably, he has sincegraduated from high school. Petitioner and Emanuel testified that because of Emanuel’s long hoursat work, Petitioner provided the vast majority of care for their son and being separated from himwould be detrimental. For some reason,both Petitioner andEmanuelassumedthatlosing their homein the Detroit suburbs would force them to move into the city of Detroit, which they believed wouldnot provide a safe and healthy environment for their son.On October 25, 2010, the IJ concluded that Petitioner had not established that Emanuel andtheir son wouldsuffer“exceptionalandextremelyunusualhardship”ifshewereremovedto Canada.On that basis, the IJ denied her application for cancellation of removal. The IJ reasoned that,unfortunately, the family’s financial difficulties were likelyto causethem to lose their home whetheror not she was removed. The IJ further found that Petitioner would likely settle just across the riverfrom Detroit in Windsor, and Petitioner’s son would soon be going off to college.Petitioner appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). On June25,2012,theBIA adopted and affirmed the IJ’s decision and dismissed Petitioner’sappeal. TheBIAfound that the IJ properlyconsidered the “ages, health, and circumstances” of Petitioner’s qualifying4
  9. 9. No. 12-3903U.S. citizen relatives. TheBIAfurtherreasonedthatPetitioner’scasewasdistinguishablefromothercases in which an exceptional hardship had been found, as when an alien’s native country had noemployment opportunities, the alien was the sole caregiver of his or her children, the children werenot familiar with the language of the country of removal, or there was no family support in theremoval country. Having found none of these circumstances present in Petitioner’s case, the BIAdismissed her appeal.DISCUSSIONBecause the BIA adopted the IJ’s decision with additional commentary, we review thedecision of the IJ, as supplemented by the BIA, as the final administrative decision. Ceraj v.Mukasey, 511 F.3d 583, 588 (6th Cir. 2007). Cancellation of removal under § 1229b is considereddiscretionary relief and, as such, is largely insulated from judicial review. See 8 U.S.C.§ 1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction to review . . . any judgment regarding thegranting of relief under section . . . 1229b [cancellation of removal].”); see also Ettienne v. Holder,659 F.3d 513, 517 (6th Cir. 2011). Although Congress has largely removed from our oversight thegovernment’s exercise of discretion in this area, we do have jurisdiction to review “constitutionalclaims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D).Accordingly,wecan review disputed interpretations of statutoryorregulatorylanguageandevaluatewhether the BIA properly adhered to the legal standards announced in its own binding precedents.Ettienne, 659 F.3d at 517. The BIA’s decisions regarding constitutional and legal claims arereviewed de novo. Stserba v. Holder, 646 F.3d 964, 971 (6th Cir. 2011).5
  10. 10. No. 12-3903Toestablisheligibilityforcancellationofremoval,nonpermanentresidentaliensmustsatisfyfour criteria: 1) they must have been physically present in the United States for a continuous periodof at least ten years; 2) they must have been a person of good moral character while in the UnitedStates; 3) they may not have been convicted of any qualifying criminal offenses; and 4) they mustestablish that removal “would result in exceptional and extremely unusual hardship to the alien’sspouse, parent, or child, who is a citizen of the United States.” 8 U.S.C. § 1229b(b)(1). The alienbears the burden of proof with respect to these requirements, and in the case of discretionary relieflike cancellation of removal, the alien must also establish that he or she merits a favorable exerciseof the Attorney General’s discretion. See 8 U.S.C. § 1229a(c)(4)(A).Petitioner arguesthatbyrejectinghercontentionthatherfamilywouldsufferexceptionalandextremely unusual hardship if she were she removed to Canada, the BIA and the IJ violated the dueprocess and equal protection guarantees of the Fifth Amendment. Furthermore, Petitioner asserts1thattheBIA’sinterpretation oftheoperativestatutorylanguagerunscontraryto congressionalintent.As discussed below, we reject Petitioner’s claims.A. Due ProcessPetitioner arguesthatthesubstantive protections afforded bythe Due ProcessClause preventthe government from separating her from her family. She points to numerous and venerablePetitioner refers to the Fourteenth Amendment as the source of these constitutional1protections, but that amendment applies only to the states and their instrumentalities. See Scott v.Clay Cnty., Tenn., 205 F.3d 867, 873 n.8 (6th Cir. 2000). At issue in this case, on the other hand,is the conduct of the federal government, which is circumscribed by the due process and equalprotection principles of the Fifth Amendment. See id.; Center for Bio-Ethical Reform, Inc. v.Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (citing Bolling v. Sharpe, 347 U.S. 497, 500 (1954)).We will construe Petitioner’s challenge as brought under the proper constitutional provision.6
  11. 11. No. 12-3903Supreme Court decisions which refer to “the sanctity of the family,” Moore v. City of E. Cleveland,431 U.S. 494, 499 (1976), and the basic importance of marriage to our society, Boddie v.Connecticut, 401 U.S. 371, 376 (1971). We sympathize whenever the enforcement of theimmigrationlawschallengesafamily’sabilityto remaintogether,andweacknowledgethedifficultyof Petitioner’s situation. However, Congress has made clear that while promoting family unity isone goal of the immigration system, it is not the only goal. See Holder v. Martinez Gutierrez, 132S. Ct. 2011, 2019 (2012) (observing that § 1229b(a) renders aliens convicted of certain aggravatedfelonies ineligible for cancellation of removal, “regardless of the strength of their family ties”).Congress has made the policy decision to exclude aliens like Petitioner from the UnitedStates absent extreme hardship to their families, and we maypolicethegovernment’sdiscretiononlyfor constitutional or legal error. See Ettienne, 659 F.3d at 517. This Circuit and others have heldon numerous occasions that the removal of aliens does not violate either their constitutional rightsor the constitutional rights of their U.S. citizen family members. See Newton v. INS, 736 F.2d 336,343 (6th Cir. 1984) (finding “no constitutional rights of citizenship implicated in the decision todeport” the parents of U.S. citizen children); see also Morales-Izquierdo v. Dep’t of Homeland Sec.,600 F.3d 1076, 1091 (9th Cir. 2010) (finding “no fundamental right to reside in the United Statessimply because other members of [an alien’s] family are citizens”); Payne-Barahona v. Gonzales,474 F.3d 1, 2 (1st Cir. 2007) (“The circuits that have addressed the constitutional issue . . . haveuniformly held that a parent’s otherwise valid deportation does not violate a child’s constitutionalright.”).7
  12. 12. No. 12-3903Petitioner correctly asserts that the Due Process Clause protects against governmentalencroachment on certain fundamental rights, among them the freedom to live in the same house withfamily as one chooses, Moore, 431 U.S. at 504–06, the right to make certain decisions related tochildbearingandprocreation,e.g.,Griswold v.Connecticut,381U.S. 479(1965),theright ofparentsto the custody of their children, Stanley v. Illinois, 405 U.S. 645 (1972), and the right to decide howto provide for their children’s education, Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925). However,no court has ever held that the doctrine of substantive due process developed in these cases preventsthe government from controlling when and how an alien may remain in the United States. SeeKleindienst v. Mandel, 408 U.S. 753, 766 (1972) (observing that Congress’ power to regulate theadmission of aliens into the United States is “plenary” and “complete”).To the extent that Petitioner challenges the denial of her application for cancellation ofremoval on the basis of procedural, rather than substantive, due process, her claim fails because analien does not have a protected liberty or property interest in the grant of discretionary relief likecancellation of removal. See Patel v. Gonzales, 470 F.3d 216, 220 (6th Cir. 2006). BecausePetitioner has no fundamental right to remain in the United States and no protected interest indiscretionary relief, her due process claim fails.B. Equal ProtectionIn the immigration context, our review of equal protection challenges is narrow and highlydeferential to the government. See Bartoszewska-Zajac v. INS, 237 F.3d 710, 714 (6th Cir. 2001)(citing Mathews v. Diaz, 426 U.S. 67, 81–82 (1976)). Such a challenge will not succeed as long asthe statute at issue “is conceivably related to the achievement of the federal interest.” Id. Congress’8
  13. 13. No. 12-3903exercise of its power to establish criteria for the admission and removal of aliens, “if predicated ona rational basis, may distinguish between classes of aliens, and confer benefits on one or moreclasses that are not available to others.” Newton, 736 F.2d at 339; see also Mathews, 426 U.S. at 78(rejecting the notion that “all aliens must be placed in a single homogeneous legal classification”).Petitioner argues that the statutory requirement of “exceptional and extremely unusualhardship” necessarily preferences aliens from poor countries and punishes those from wealthycountries, or as she puts it, rewards “sloth and mediocrity” over “economic success.” See Pet’r’s Br.19. Congress intended for cancellation of removal to provide a safety valve when an otherwise-removable alien has U.S. citizen family members. See Marin-Garcia v. Holder, 647 F.3d 666,673–74 (7th Cir. 2011) (noting that the statute reflects “the legitimate and long-recognizedCongressionalpolicyofprotectingtheintegrityofthefamilyunit”). However,to prevent aliensfromimproperly deriving immigration benefits merely because members of their family are citizens,Congress placed “robust limits” on the availability of cancellation. See id. at 674. The statutereflects this “fundamental immigration enforcement polic[y]” and provides eligibility forcancellation of removal only in “truly exceptional cases.” See H.R. Rep. No. 104-828, at 213–14(1996).Given Congress’ clearly expressed desire to allow cancellation of removal only in the mostextreme cases, we find it perfectly rational for the government to take into account the relativeeconomic prosperity of an alien’s country of removal. Congress plainly did not intend cancellationof removal to operate as a reward for what Petitioner calls the “successful and industrious,” nor doesthe Constitution require the government to turn a blind eye to the obvious and relevant differences9
  14. 14. No. 12-3903between aliens who would face dire financial need upon removal and those who would not. Indeed,it would seem irrational, given Congress’ instruction that cancellation of removal be reserved onlyfor the “truly exceptional cases,” for the government to refuse to take economic circumstances andfinancial need into account. Accordingly, we find that the policy of considering the economicconditions in an alien’s country of removal is rationally related to the government’s legitimateinterest in enforcing the immigration laws while making exceptions only for those who will sufferextreme hardship. See Ayala-Flores v. INS, 662 F.2d 444, 446 (6th Cir. 1981) (noting that a contrarydecision would create “a substantial loophole in the immigration laws”). Because the policyand thegovernment’s interest are rationally related, Petitioner’s equal protection claim fails.C. Statutory InterpretationIn an argument similar to her equal protection challenge, Petitioner asserts that the BIA’sinterpretation of the statutory phrase “exceptional and extremely unusual hardship” is contrary towhat Congress intended because it “disqualif[ies] almost everyone except deportees to the mosteconomicallyravished and politicallytumultuous Third World countries.” See Pet’r’s Br. 22. Whenreviewing the BIA’s interpretation of ambiguous terms in the Immigration and Nationality Act, weapply Chevron deference, and “we will uphold the BIA’s construction unless it is ‘arbitrary,capricious, or manifestlycontraryto the statute.’” Kellermannv.Holder,592 F.3d 700, 702 (6th Cir.2010) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44(1984)).Contrary to Petitioner’s suggestion, the BIA considers numerous factors when evaluatingwhether an alien has established that their U.S. citizen family members will suffer “exceptional and10
  15. 15. No. 12-3903extremely unusual hardship” as a result of their removal. The BIA considers “the ages, health, andcircumstances” of the qualifying family members, including the need for the alien to care for olderrelatives in the United States or a child’s need to remain in this country for special medical oreducational attention. See In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63 (BIA 2001). The BIAalso considers the “political and economic conditions” in the country of removal, but these factorsare not by themselves sufficient to constitute an exceptional hardship, even as Petitioner asserts thataliens from wealthy countries are “automatically disqualified from seeking relief.” See Pet’r’s Br.23. That is simply not so. In any event, for substantially the reasons described above, the BIA’sconsideration of economic circumstances and financial need is not unreasonable, nor is it “arbitrary,capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844.Petitioner raises no meritorious constitutional or legal challenges to the BIA’s denial of herapplication for cancellation of removal. Accordingly, her petition for review must be denied.CONCLUSIONFor the foregoing reasons, the petition for review is DENIED.11