Lying About Citizenship on I-9 Supports Immigrant's Removal

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By Laura D. Francis

Jan. 22 — There was ample evidence that an immigrant falsely claimed to be a citizen to obtain and keep his job, so his removal was justified, the U.S. Court of Appeals for the Eighth Circuit has held.

The Jan. 22 ruling is an example of the serious consequences of lying about being a citizen on an I-9 employment eligibility verification form. While the appeals court said simply checking the box on the form indicating that an individual is a U.S. “citizen or national” doesn't itself render someone inadmissible to the U.S., there was evidence that Munna Godfrey actually intended to represent himself as a citizen to keep his job.

The Eighth Circuit previously has held that I-9 forms are admissible as evidence in removal proceedings (Mayemba v. Holder, 776 F.3d 542, 2015 BL 6846 (8th Cir. 2015)).

Here, it also found them properly admitted after the immigration judge said—but didn't formally rule—that he would grant Godfrey's motion for adjustment of status to lawful permanent resident.

Removal Proceedings After Green Card Denied

Godfrey, a native of Tanzania, entered removal proceedings after he applied for a green card based on his marriage to a U.S. citizen. U.S. Citizenship and Immigration Services denied the application because it discovered he had violated the terms of his student visa when lying about being a U.S. citizen to apply to a community college.

Godfrey admitted he was removable but sought adjustment of status under the Immigration and Nationality Act. The INA allows adjustment during removal proceedings if the immigrant is eligible for a visa and is “admissible” to the U.S.

Falsely representing oneself as a U.S. citizen in order to obtain a benefit renders someone inadmissible—but falsely claiming to be a U.S. national does not, the court explained.

Because merely checking the box on the I-9 that someone is a “citizen or national” of the U.S. isn't determinative, the court said the immigrant's intent in checking that box must be analyzed. Here, ample evidence supported a finding that Godfrey intended to represent himself as a U.S. citizen.

According to the court, Godfrey testified that he didn't know the difference between a citizen and national, but he also testified that he intended to represent himself as a citizen because he knew it would help him keep his job, and that it was better than being a national. He also continued to represent himself as a citizen after removal proceedings had commenced, the Eight Circuit noted.

Waiver of Inadmissibility Unavailable

The court additionally rejected Godfrey's argument that he is eligible for a waiver of inadmissibility.

The INA only allows such waivers if inadmissibility is based on misrepresentations of material fact to avoid hardship to the immigrant's family. The statute doesn't waive inadmissibility based on false claims of citizenship to obtain a benefit, the court said.

The court also ruled that Godfrey wasn't denied due process when the IJ allowed the admission of his I-9 forms.

Godfrey was cross-examined about the forms—and he testified that he intended to represent himself as a citizen to keep his job—but they weren't initially part of the record. The IJ therefore refused to consider them and said he would grant Godfrey's adjustment of status motion after he had completed his biometrics.

But a week before proceedings were to restart, the USCIS submitted the I-9 forms to the IJ, who ultimately ruled that Godfrey should be removed.

The Eighth Circuit said the record wasn't yet closed when the IJ accepted the forms, as Godfrey claimed. And Godfrey was given “ample opportunity” to address the allegation that he lied about his citizenship and to submit his own evidence.

“There was nothing fundamentally unfair about these proceedings,” the court held.

Judge Kermit E. Bye wrote the opinion, joined by Judges William Jay Riley and Raymond W. Gruender.

The Hoppock Law Firm represented Godfrey. The Justice Department represented the attorney general.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com