Should I Stay or Should I Go

I recently came across a Board of Immigration Appeals (BIA) opinion that I simply had to write about. The BIA opinion illustrates the complex interplay between the inadmissibility and removability provisions of the Immigration and Nationality Act (INA) and the limitations of both.

The procedural posture of the case was Respondent Everline Gesare Nyabwari’s motion for reconsideration of the BIA’s decision to dismiss Respondent’s appeal of an Immigration Judge’s (IJ) decision denying her request for a hearing continuance based on an immigrant petition filed by her U.S. citizen husband.

Respondent was placed in removal proceedings and charged with falsely claiming U.S. citizenship after she checked the boxes for “citizen or national” on two Employment Eligibility Verification Forms (I-9s).

The government charged Respondent with being removable under INA Section 237(a)(3)(D) for falsely representing herself to be a U.S. citizen for any purpose or benefit.

In order to succeed in its efforts to remove Respondent, the government had to prove that Respondent “was removable by clear and convincing evidence.”

Respondent tried to avoid removal by seeking classification as an immediate relative of a U.S. citizen through the filing of an I-130 petition that was approved after her removal hearing.

In order to adjust her status to that of a lawful permanent resident, however, Respondent bore the burden of establishing “clearly and beyond doubt” that she was not inadmissible under INA section 212(a)(6)(C)(ii)(I) -- that is, that she did not falsely claim U.S. citizenship for the purpose of establishing her employment eligibility.

The BIA found that the IJ unreasonably inferred from the fact that Respondent checked the box “citizen or national” on the I-9 forms that Respondent falsely represented herself to be a U.S. citizen. Respondent testified that she did not understand the meaning of the ambiguous term “national.” Therefore, the government could not establish by clear and convincing evidence that Respondent deliberately misrepresented herself to be a U.S. citizen. The BIA concluded that because the government failed to meet its burden of proof Respondent could not be removed for falsely claiming to be a U.S. citizen.

With regard to Respondent’s motion for reconsideration, the BIA held that Respondent was not entitled to a continuance of her removal hearing because, despite not knowing the meaning of the term “national,” she submitted no evidence establishing that she was attesting to be a “national” when she checked the boxes on the Form I-9s.

Since Respondent could not prove that she was not inadmissible to the U.S. or that she was eligible for adjustment of status, the IJ committed no error in denying Respondent’s request for continuance, according to the BIA. The BIA therefore denied Respondent’s motion for reconsideration.

The irony of Respondent’s situation is that she is neither removable from the U.S. nor admissible to lawful permanent residence. Respondent cannot be deported on the basis of having made a false claim to U.S. citizenship. At the same time, Respondent cannot obtain a green card through her marriage because Respondent cannot prove that she did not falsely claim to be a U.S. citizen.

The BIA’s decision produces no clear victory for either side but surely exposes the idiosyncratic workings of our current immigration laws.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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