Crocock v. Holder, Jr., No. 11-1123 (2d Cir. 2012)

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Justia Opinion Summary

Petitioner, a native and citizen of Ireland, sought review of an order of the BIA finding him ineligible for adjustment of status due to his inadmissibility under section 212(a)(6)(c)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(6)(c)(ii), for falsely representing himself to be a United States citizen. The court concluded that petitioner did not meet his burden of demonstrating that he did not represent himself to be a United States citizen when he checked the "citizen or national" box on an 1-9 Employment Eligibility Verification Form. Accordingly, the court denied the petition for review.

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11-1123-ag Crocock v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: February 9, 2012 Decided: February 23, 2012) Docket No. 11-1123-ag ANTHONY GERARD CROCOCK, Petitioner, -v.ERIC H. HOLDER, JR., United States Attorney General, Respondent. Before: Wesley, Lohier, Circuit Judges, Mauskopf, District Judge.1 Petitioner seeks review of an order of the Board of Immigration Appeals finding him ineligible for adjustment of status due to his inadmissability under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182 (a)(6)(C)(ii), for falsely representing himself to be a United States citizen. Petitioner did not meet his burden of demonstrating that he did not represent himself to be a United States citizen when he checked the citizen or national box on an I-9 Employment Eligibility Verification Form. Accordingly, we deny the petition for review. DENIED. 1 Judge Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 JAMES E. SWAINE, Law Offices of James E. Swaine, Hamden, CT, for Petitioner. BROOKE M. MAURER, Attorney, Office of Immigration Litigation, Civil Division (Tony West, Assistant Attorney General, Richard M. Evans, Assistant Director, Nancy E. Friedman, Senior Litigation Counsel, on the brief), for Eric H. Holder, Jr., United States Attorney General, Washington, D.C., for Respondent. PER CURIAM: Petitioner Anthony Gerard Crocock petitions for review 19 of an order of the Board of Immigration Appeals ( BIA ) 20 affirming an Immigration Judge s ( IJ ) determination that 21 Crocock was ineligible for adjustment of status. 22 determined that Crocock failed to meet his burden of 23 demonstrating that he was not inadmissible under Immigration 24 and Nationality Act ( INA ) § 212(a)(6)(C)(ii), 8 U.S.C. § 25 1182 (a)(6)(C)(ii), for falsely representing himself as a 26 United States citizen for the purpose of any benefit under 27 the INA. 28 Eligibility Form ( I-9 ) indicating that he was a citizen 29 or national of the United States when he applied for a job. 30 Crocock argues that he checked the citizen or national box 31 on the I-9 with the intent of claiming nationality and that 32 due to the ambiguity of the statement, the I-9 alone is The IJ Crocock had checked the box on an I-9 Employment 2 1 insufficient to establish his inadmissibility. 2 is Crocock s burden to demonstrate that he is not 3 inadmissible under 8 U.S.C. § 1255(a), we find no error in 4 the agency s determination and deny the petition for review. 5 Background 6 Because it In January 2004, Crocock, a native and citizen of 7 Ireland, entered the United States on a non-immigrant 8 student visa to complete a paramedic certification program. 9 Following completion of his paramedic course and training 10 and the subsequent expiration of his student visa and work 11 authorization, Crocock applied for and, in October 2004, 12 obtained a position with the fire department in Saco, Maine. 13 In order to obtain this position, Crocock completed an I-9 14 attesting to his employment eligibility by checking the box 15 on the form labeled citizen or national. 16 based on a tip from a confidential informant, Crocock was 17 charged by the Department of Homeland Security with 18 removability under INA § 237(a)(1)(B), 8 U.S.C. 19 § 1227(a)(1)(B), for remaining in the United States beyond 20 the authorized period and under INA § 237(a)(3)(D), 8 U.S.C. 21 § 1227(a)(3)(D), as an alien who falsely represented himself 22 to be a citizen of the United States for any purpose or 23 benefit under the INA. In April 2006, Shortly thereafter, Crocock pled 3 1 guilty in the United States District Court for the District 2 of Maine to making a false attestation on an Employment 3 Verification System Form in violation of 18 U.S.C. § 1546(a) 4 and (b), and was subsequently charged with an additional 5 ground of removability under 8 U.S.C. § 1227(a)(2)(A)(i) for 6 having been convicted of a crime involving moral turpitude. 7 Before the IJ, Crocock conceded that he was removable for 8 remaining in the United States beyond the authorized period, 9 and he applied for adjustment of status based on his June 10 11 2006 marriage to a United States citizen. In November 2008, the IJ found Crocock removable based 12 on his overstay and his conviction under 18 U.S.C. § 1546, 13 which the IJ determined to be a crime involving moral 14 turpitude. 15 for an adjustment of status because he was inadmissible 16 under 8 U.S.C. § 1182(a)(6)(C)(ii) as an alien who falsely 17 represented himself to be a citizen of the United States. 18 The IJ found that Crocock had not demonstrated that he was 19 admissible because, although Crocock claimed to have 20 believed that he was a national when he checked the box on 21 the I-9, Crocock had admitted to an immigration officer that 22 he had falsely claimed to be a United States citizen, 23 offered confusing testimony as to whether he believed he was The IJ further found that Crocock was ineligible 4 1 a national of the United States, and pled guilty to making a 2 false attestation on the I-9. 3 decision to the BIA, which affirmed the IJ s decision in 4 February 2011 and dismissed Crocock s appeal. 5 Crocock appealed the IJ s Crocock now argues that the I-9 is ambiguous as to 6 whether an individual who checks the citizen or national 7 box makes a representation of citizenship, and argues that 8 he claimed, falsely or otherwise, to be a national and not a 9 United States citizen on the I-9. He concludes that he is 10 admissible to the United States and eligible for adjustment 11 of status because 8 U.S.C. § 1182(a)(6)(C)(ii) applies only 12 to false claims of United States citizenship.2 13 Discussion 14 Under the circumstances of this case, we review the 15 decision of the IJ as supplemented by the BIA. See Chen v. 16 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 17 lack jurisdiction to review a discretionary denial of 18 adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)(i); Ruiz 19 v. Mukasey, 552 F.3d 269, 275 n.4 (2d Cir. 2009), we retain 20 jurisdiction to review constitutional claims or questions of 21 law raised in a petition for review, including whether an Although we Crocock does not contest that his representation, made in order to obtain employment, was for a purpose or benefit under the INA. 2 5 1 alien is eligible for adjustment of status, Aslam v. 2 Mukasey, 537 F.3d 110, 115 (2d Cir. 2008) (per curiam). 3 review such claims de novo. 4 111, 114 (2d Cir. 2010). We See Lecaj v. Holder, 616 F.3d 5 To qualify for adjustment of status, an alien must 6 demonstrate that he is admissible to the United States for 7 permanent residence. 8 applicants for adjustment of status are assimilated to the 9 position of aliens seeking entry into this country, Drax v. 8 U.S.C. § 1255(a)(2). Because 10 Reno, 338 F.3d 98, 113 (2d Cir. 2003) (internal quotation 11 marks omitted), such aliens must show that they are clearly 12 and beyond doubt entitled to be admitted, see Ibragimov v. 13 Gonzales, 476 F.3d 125, 131 (2d Cir. 2007).3 14 As Crocock sought relief from removal in the form of 15 adjustment of status, he was required to demonstrate that he 16 did not falsely represent himself to be a U.S. citizen. 17 8 U.S.C. § 1182(a)(6)(C)(ii)(I) ( Any alien who falsely See Crocock contends that this clearly and beyond doubt standard is too harsh, as evidenced by the fact that the BIA indicated that it was applying a preponderance of the evidence standard. The BIA concluded, however, that Crocock failed to show that he clearly and beyond a doubt was admissible because he did not demonstrate by a preponderance of the evidence that he had not held himself out to be a citizen, and there is no indication that the IJ applied a different standard. To the extent Crocock challenges the application of the clearly and beyond a doubt standard, he appears to confuse the substantive standard for establishing admissibility with the evidentiary burden required to demonstrate that he has satisfied the applicable substantive criteria. 3 6 1 represents, or has falsely represented, himself or herself 2 to be a citizen of the United States for any purpose or 3 benefit . . . is inadmissible. ). 4 attestation to being a citizen or national on the I-9 is 5 alone insufficient to establish his inadmissibility because 6 he checked the box while claiming to be a national, which is 7 not a ground of inadmissibility. 8 that a false claim of nationality, made either intentionally 9 or mistakenly, does not render an alien inadmissible under 8 Crocock argues that his Crocock correctly argues 10 U.S.C. § 1182(a)(6)(C)(ii). 11 demonstrating admissibility is squarely on Appellant. 12 Ibragimov, 476 F.3d at 131. 13 prove a negative that he did not falsely claim United States 14 citizenship. 15 However, the burden of See Here, Crocock was required to We find no error in the agency s determination that he 16 failed to meet his burden. Because the I-9 shows that 17 Crocock claimed to be a citizen or national, he had the 18 burden of showing that he claimed to be a national, not a 19 citizen. 20 to demonstrate that he thought he was a national when 21 completing the I-9. 22 claiming to be a national at the time he completed the I-9 23 is undermined by his later admission before the IJ that he Crocock points to no evidence beyond his testimony Furthermore, his assertion that he was 7 1 did not believe himself to be a national, as well as his 2 prior statement to an immigration officer in which he 3 characterized himself as a United States citizen in order to 4 obtain his dream job. 5 the burden of demonstrating that he did not falsely claim to 6 be a United States citizen and because he points to no 7 additional evidence supporting his claim that he believed he 8 was a U.S. national, we find no error in the agency s 9 conclusion that Crocock failed to carry his burden of Ultimately, because Crocock bears 10 establishing admissibility. 11 954, 958 (8th Cir. 2004). Conclusion 12 13 See Ateka v. Ashcroft, 384 F.3d For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, the stay of 15 removal previously granted is VACATED. 8