PANKAJKUMAR S. PATEL, JYOTSNABEN P. PATEL, NISHANTKUMAR PATEL, Petitioners,
U.S. ATTORNEY GENERAL, Respondent.
Petition for Review of a Decision of the Board of Immigration
Appeals Agency No. A072-565-851
TJOFLAT, MARCUS and NEWSOM, Circuit Judges.
TJOFLAT, CIRCUIT JUDGE
case presents interesting, and rather complicated, questions
of statutory interpretation.
Patel, an immigrant facing removal, asks us to review a
decision by the Board of Immigration Appeals. The Board held
that Patel is inadmissible, and thus cannot get relief from
removal, because he falsely represented himself as a citizen
when applying for a Georgia driver's license. The
relevant statute provides that an alien is inadmissible if he
falsely represents himself as a U.S. citizen "for any
purpose or benefit" under the law. 8 U.S.C. §
1182(a)(6)(C)(ii)(I). Under the Board's previous
interpretation of the statute, an alien is inadmissible only
if he makes the false representation with the intent to
obtain the purpose or benefit, and if the false
representation is material to the purpose or benefit sought.
Matter of Richmond, 26 I. & N. Dec. 779, 786-87
(BIA 2016). Patel argues that he simply checked the wrong
box, and that citizenship did not affect the application. His
case presents two questions.
whether we have jurisdiction to review Patel's claim
that, as a factual matter, he checked the wrong box and thus
lacked the requisite subjective intent to trigger the
statute. Second, whether we must defer to the Board's
interpretation in Richmond, finding a materiality
element in the statute. The answer to both is, we do not.
came to the United States from India. He entered the country
without inspection. Consequently, the Department of Homeland
Security issued a notice to appear to Patel charging him as
removable for being present in the United States without
inspection. See 8 U.S.C. § 1182(a)(6)(A)(i)
("An alien present in the United States without being
admitted or paroled . . . is inadmissible.").
conceded removability, but he sought discretionary relief
from removal by applying for adjustment of status under 8
U.S.C. § 1255(i). Section 1255 permits an alien who
entered without inspection to obtain relief from removal if,
among other things, the alien is the beneficiary of a labor
certification. See § 1255(i)(1)(B)(ii). Patel
was a valid beneficiary, because he had an approved I-140
Immigrant Petition for Alien Worker.
Attorney General may adjust an alien's status to lawful
permanent resident if the alien meets certain requirements.
See § 1255(i); see also 8 C.F.R.
§ 1245.10(b) (listing the eligibility requirements for
an alien who entered without inspection and is seeking
adjustment of status based on a labor certification). The
parties agree that Patel meets all the statutory criteria for
adjustment of status except one: the applicant must show
"clearly and beyond doubt" that he is not
inadmissible. See 8 U.S.C. § 1229a(c)(2) (in a
removal proceeding, an alien applying for admission "has
the burden of establishing . . . that the alien is clearly
and beyond doubt entitled to be admitted and is not
admissibility is in doubt because he falsely represented that
he was a U.S. citizen when he applied for a Georgia
driver's license in 2008. When applying for the license,
Patel checked the box indicating that he is a U.S. citizen.
This incident arguably renders Patel inadmissible pursuant to
§ 1182(a)(6)(c)(ii)(I), which says:
Any alien who falsely represents, or has falsely represented,
himself or herself to be a citizen of the United States for
any purpose or benefit under this chapter (including section
1324a of this title) or any other Federal or State law is
Board of Immigration Appeals interpreted this section to
require three elements: (1) a false representation of
citizenship; (2) that is material to a purpose or benefit
under the law; (3) with the subjective intent of obtaining
the purpose or benefit. Richmond, 26 I. & N.
Dec. at 786-87.
was no dispute that Patel made a false representation of
citizenship. Nor was there any dispute that a driver's
license is a benefit under state law. Patel challenged the
applicability of the statute on two grounds: he lacked the
requisite subjective intent, and the false representation was
removal hearing, Patel argued that he did not have the
requisite subjective intent: he simply made a mistake. To
prove that it was a mistake, Patel claimed that he provided
his alien registration number and his employment
authorization card to the DMV with his driver's license
application, suggesting that it would make no sense to
document his non-citizen status if his goal was to pose as a
also argued that a false representation of citizenship was
not material to obtaining a driver's license. He asserted
that an alien is eligible to receive a driver's license
in Georgia. As proof, Patel observed that he had previously
received a license from Georgia.
Immigration Judge ("IJ") rejected Patel's
arguments. The IJ determined that Patel was not credible. He
was evasive when testifying and would not explain to the
Court exactly what the mistake was. Furthermore, contrary to
his testimony, Patel did not write his alien registration
number on the application. Where the application asks about
citizenship, it directs the applicant to provide his alien
registration number if he is not a citizen. Patel marked that
he was a citizen and did not write down his alien
registration number. The application also does not reflect
that Patel provided his employment authorization card: in the
section on the form where the Georgia official is to list the
documents accepted, the only document mentioned is the old
Georgia driver's license. In short, the evidence
contradicted Patel's testimony, which the IJ already
suspected was not candid, so the IJ did not believe
Patel's claim that he made a mistake. The IJ found that
Patel willfully and purposefully indicated that he was a U.S.
also held that Patel failed to meet his burden of proving
that he was otherwise eligible for a driver's license.
The fact that Patel had previously obtained a license in
Georgia is inconclusive. Patel might have misrepresented his
citizenship on his past application too. Alternatively, the
IJ continued, even if Patel obtained his prior license
without claiming citizenship, the rules governing who
qualifies for a license in Georgia could have changed in the
interim. Patel simply did not provide enough evidence to show
that he was otherwise eligible for the license.
Patel failed to show that he was not inadmissible, the IJ
denied his application for adjustment of status and ordered
the removal of the Patels.
Board affirmed. It found no clear error in the factual
finding that Patel was not credible and made the false
representation for the purpose of obtaining a license-i.e.,
with subjective intent. The Board also agreed that Patel did
not produce enough evidence to prove that he was otherwise
eligible for a license- i.e., to prove that the false
representation was immaterial.
board member dissented. She observed that Georgia law
extended driver's licenses to those with lawful status.
See Ga. Comp. R. & Regs. 375-3-1.02(6)
("Each customer must provide documentation of his or her
citizenship or lawful status in the United
States." (emphasis added)). And an alien with "a
pending application for lawful permanent residence" has
lawful status for the purpose of a driver's license
application. 6 C.F.R. § 37.3. Since Patel had a pending
application for lawful permanent residence when he applied
for the Georgia license, he did not need citizenship to
obtain the license. Thus, the dissenting board member
reasoned, the false representation was immaterial.
appeals the Board's decision.
on appeals from a Board decision, we review legal conclusions
de novo, and we review factual findings under the
substantial evidence test. Gonzalez v. U.S. Att'y
Gen., 820 F.3d 399, 403 (11th Cir. 2016). When the Board
expressly adopts the IJ's findings or reasoning, we also
review the IJ's decision. Id. Both parties
propose we follow the typical standard.
Congress has stripped our jurisdiction to hear certain
appeals of immigration cases. And even when the parties
agree, we must consider jurisdictional issues sua
sponte. Gonzalez v. Thaler, 565 U.S. 134, 141,
132 S.Ct. 641, 648 (2012) ("When a requirement goes to
subject-matter jurisdiction, courts are obligated to consider
sua sponte issues that the parties have disclaimed
or have not presented.").
enumerated several "[m]atters not subject to judicial
review" in 8 U.S.C. § 1252(a)(2). As it pertains to
this case, we do not have "jurisdiction to review . . .
any judgment regarding the granting of relief under section .
. . 1255 of this title." § 1252(a)(2)(B). However,
even when this jurisdictional bar applies, we still have
power to review constitutional claims or questions of law.
See § 1252(a)(2)(D). In short, we cannot review
appeals from judgments under § 1255 unless the party
raises a constitutional claim or a question of law.
as Patel appeals from the denial of his claim for adjustment
of status under § 1255, we review the legal conclusions
below de novo, ...