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Matter of Ezra Kibichii BETT, Respondent

Decided October 30, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A Form I-9 (Employment Eligibility Verification) is admissible in immigration 

proceedings to support charges of removability against an alien and to determine his or 

her eligibility for relief from removal. 

FOR RESPONDENT: J. Bradley Pace, Esquire, Mission, Kansas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kimberlee L. Moore,

Assistant Chief Counsel

BEFORE: Board Panel: MULLANE and MANN, Board Members; LIEBOWITZ, 

Temporary Board Member.

LIEBOWITZ, Temporary Board Member:

In a decision dated May 9, 2012, an Immigration Judge found the 

respondent removable on his own admissions and denied his application for 

adjustment of status under section 245(a) of the Immigration and 

Nationality Act, 8 U.S.C. § 1255(a) (2012), because he did not establish 

that he was admissible to the United States. The respondent has appealed

from that decision. The appeal will be dismissed. 

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Kenya who was admitted to the 

United States on August 20, 2008, as a nonimmigrant student. On 

December 3, 2009, the Department of Homeland Security (“DHS”) issued 

a notice to appear charging him with removability under section 

237(a)(1)(C)(i) of the Act, 8 U.S.C. § 1227(a)(1)(C)(i) (2006), as an alien 

admitted as a nonimmigrant who failed to maintain or comply with the 

conditions of his status.

In a hearing before the Immigration Judge, the respondent applied for

adjustment of status as the beneficiary of a visa petition filed on his behalf

by his United States citizen spouse, which was approved on May 31, 2011.

The DHS asserted that the respondent was not eligible to adjust his status 

because he was inadmissible as an alien who falsely represented himself to 
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be a United States citizen under section 212(a)(6)(C)(ii)(I) of the Act, 

8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012), which provides as follows:

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 Act 

(including section 274A) or any other Federal or State law is inadmissible. 

(Emphasis added.)1

The record includes evidence that the respondent filed a Form I-9

(Employment Eligibility Verification) with two different employers on 

October 9, 2009, and October 27, 2009. On each form, a box is checked 

signifying that the applicant is a United States citizen.2 The respondent

acknowledged that the signature on both forms resembled his own. 

However, he testified that he was “not sure” if he had completed them, 

stating “I don’t remember filling out those forms.” He was also unsure

whether he had checked the citizenship box on both forms, stating, “I don’t 

remember what I checked in [the] file.” When further questioned, he 

reiterated that he did not remember checking the citizenship box on the 

forms but testified, “I don’t think I did.” 

The record also contains proof that in November 2008, the respondent 

received a social security card with the restriction that it was “VALID FOR 

WORK ONLY WITH DHS AUTHORIZATION.” However, the record 

also contains copies of social security cards bearing the respondent’s name

that had been provided to his two employers. Neither card contained the 

restrictive language regarding work authorization. When asked about these 

cards, the respondent replied that he “did not know” how the employers had 

received them. The respondent testified that he received work authorization 

in July 2011 but admitted that he had worked before that time.

The Immigration Judge found that the respondent did not present 

credible testimony, citing section 240(c)(4)(C) of the Act, 8 U.S.C. 

§ 1229a(c)(4)(C) (2012). He found the “most glaring” problem to be the 

respondent’s testimony regarding the I-9 forms he submitted to his former 

employers. The Immigration Judge noted that although the respondent 

acknowledged that he applied for a job at each company and that it looked 

like his signature appeared on both forms, he could not recall checking the 

 

1

Section 212(a)(6)(C)(ii)(II) of the Act sets forth an exception to this provision. 

Neither party has alleged that this exception applies in this case. 

2

In 2008, the DHS amended the Form I-9 to provide separate boxes so that an applicant

must clearly identify whether he or she attests to be a citizen of the United States, a 

noncitizen national, a lawful permanent resident, or an alien authorized to work for a 

period of time. See Documents Acceptable for Employment Eligibility Verification, 

73 Fed. Reg. 76,505, 76,508 (interim rule Dec. 17, 2008) (Supplementary Information). 
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box on the forms signifying that he was a United States citizen. The 

Immigration Judge found that the direct and circumstantial evidence of 

record established that the respondent did, in fact, fill out the forms and that 

he selectively withheld this information at the hearing. 

In addition, the Immigration Judge found the respondent’s testimony 

about the social security cards unconvincing because he could not explain 

how his employers received copies of the cards, which had apparently been

altered. The Immigration Judge also considered the respondent’s

unresponsiveness when asked why he had a Missouri driver’s license after

he had testified that he lived with his wife in Kansas. Moreover, the 

Immigration Judge found that the respondent had answered other questions 

in a nonresponsive and tentative manner, sometimes deliberating for several 

moments while contemplating answers to simple “yes” or “no” questions. 

In light of his adverse credibility finding, the Immigration Judge 

determined that the respondent did not establish that he was not 

inadmissible under section 212(a)(6)(C)(ii)(I) of the Act. Further, the 

Immigration Judge found that even if the respondent’s testimony was 

credible on these matters, his uncertain testimony would not suffice to

resolve other critical issues regarding his admissibility. The Immigration 

Judge therefore concluded that the respondent could not establish eligibility 

for adjustment of status. Regarding the respondent’s request for voluntary 

departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2012), the 

Immigration Judge found that the respondent was ineligible for that relief 

because he lacked good moral character on account of his false testimony. 

Alternatively, the Immigration Judge determined that the respondent did 

not merit a favorable exercise of discretion. 

On appeal, the respondent challenges the adverse credibility 

determination and argues that he met his burden of establishing eligibility

for adjustment of status. According to the respondent, the Immigration 

Judge made the erroneous assumption that he must have checked the 

citizenship box on the I-9 forms because only he would benefit from a 

claim that he was a United States citizen. The respondent argues that

employers might also be motivated to check the citizenship box on an 

applicant’s behalf because it would allow them to procure workers. 

In addition, the respondent claims that the Immigration Judge should 

have examined other documents generated by the employers besides the I-9

forms. He also challenges the Immigration Judge’s reliance on the other

documentary evidence in the record, including the social security cards. 

Finally, in a supplemental brief filed during the pendency of the appeal, the 

respondent asserts that intervening case law supports the argument that a 

Form I-9 should not be admitted as evidence in a removal proceeding. 
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II. ANALYSIS

To be eligible for adjustment of status, an applicant has the burden to 

show that he is clearly and beyond doubt entitled to be admitted to the 

United States and is not inadmissible under section 212(a) of the Act. 

See sections 240(c)(2)(A), (4), 245(a) of the Act; Hashmi v. Mukasey, 533 

F.3d 700, 702 (8th Cir. 2008) (citing Kirong v. Mukasey, 529 F.3d 800, 

803–04 (8th Cir. 2008)); 8 C.F.R. § 1240.8(d) (2014); see also Crocock 

v. Holder, 670 F.3d 400, 403 (2d Cir. 2012) (per curiam). Specifically, in 

this case, the respondent was required to prove clearly and beyond doubt

that he did not falsely represent himself “to be a citizen of the United States 

for any purpose or benefit under this Act (including section 274A).” 

Section 212(a)(6)(C)(ii)(I) of the Act; see also Crocock v. Holder, 670 F.3d 

at 403 (explaining that the applicant for adjustment of status “was required 

to prove a negative,” namely, that he did not falsely claim United States 

citizenship when he checked the box that indicated he was a citizen or 

national). 

It is well established that an alien who represents himself as a citizen on 

a Form I-9 to secure employment with a private employer has falsely 

represented himself for a purpose or benefit under the Act. Hashmi 

v. Mukasey, 533 F.3d at 703 (citing Rodriguez v. Mukasey, 519 F.3d 773, 

777 (8th Cir. 2008)); see also Castro v. Att’y Gen. of U.S., 671 F.3d 356, 

369 & n.9 (3d Cir. 2012); Ferrans v. Holder, 612 F.3d 528, 533 (6th Cir. 

2010); Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007).

A. Admissibility of a Form I-9 in Removal Proceedings

The respondent asserts that a Form I-9 is not admissible as evidence in a 

removal proceeding. The United States Court of Appeals for the Eighth 

Circuit, in whose jurisdiction this case arises, has recently addressed this 

issue. Downs v. Holder, 758 F.3d 994 (8th Cir. 2014). The petitioner in 

Downs sought to suppress various documents from evidence, including two 

I-9 forms in which she had indicated that she was a citizen or national of 

the United States. The Immigration Judge denied the motion to suppress 

and the Board affirmed that decision. 

Before the court, the petitioner argued that the plain language of section 

274A(b)(5) of the Act, 8 U.S.C. § 1324a(b)(5) (2012), which is entitled 

“Limitation on Use of Attestation Form,” prohibited the admission of a 

Form I-9 in removal proceedings. Section 274A(b)(5) provides in its 

entirety as follows: 

A form designated or established by the Attorney General under this subsection 

and any information contained in or appended to such form, may not be used for 
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purposes other than for enforcement of this Act and sections 1001, 1028, 1546, and 

1621 of title 18, United States Code.

3

 

(Emphasis added.)

According to the petitioner, the phrase “enforcement of this Act” refers 

to enforcement of the Immigration Reform and Control Act of 1986, 

Pub. L. No. 99-603, § 101(a)(1), 100 Stat. 3359, 3360, 3363 (“IRCA”),

which added section 274A(b)(5) to the Act. However, the Eighth Circuit

held that because section 274A(b)(5) is a section of the Act, the “plain and 

unambiguous meaning of the reference to ‘the Act’ is to the [Immigration 

and Nationality Act].”4 Downs v. Holder, 758 F.3d at 997. The court 

therefore concluded that since a removal proceeding regarding a false claim 

to citizenship is clearly a proceeding to enforce the Act, section 274A(b)(5) 

“allows the admission of I-9 forms into evidence in removal proceedings.”

Id. at 998. The Eighth Circuit’s decision is binding in the respondent’s 

case. See Matter of U. Singh, 25 I&N Dec. 670, 672 (BIA 2012). 

In any case, we agree with the court’s reasoning that the plain meaning 

and unambiguous text of section 274A(b)(5) of the Act permits the use of a

Form I-9 as evidence in immigration proceedings. We are therefore 

unpersuaded by the respondent’s argument that the legislative history of the 

IRCA indicates that Congress intended otherwise. See Downs v. Holder, 

758 F.3d at 997 (explaining that “[a]lthough the legislative history of the 

IRCA is informative, it does not override the plain meaning of the 

unambiguous text of the [Act]” (citing Chamber of Commerce of U.S. 

v. Whiting, 131 S. Ct. 1968, 1980 (2011))); see also Matter of Briones, 

24 I&N Dec. 355, 361 (BIA 2007) (holding that the “touchstone [of 

statutory interpretation] is the plain language of the statute” and that the 

Board rarely looks “past the unambiguous meaning of statutory language”).

 

3

Section 274A of the Act addresses the “Unlawful Employment of Aliens.” The 

Form I-9 was created to comply with that section, which mandated that an “individual 

must attest, under penalty of perjury on the form designated or established for purposes 

of paragraph (1), that the individual is a citizen or national of the United States, an alien 

lawfully admitted for permanent residence, or an alien who is authorized under this Act 

or by the Attorney General to be hired, recruited, or referred for such employment.” 

Section 274A(b)(2) of the Act; see also 8 C.F.R. § 274a.2(a) (1988) (stating that the 

Form I-9 was designated as the form to be used in complying with the requirements of 

the statute). 

4 The court noted that the text of published versions of section 274A(b)(5) of the Act

varies. Downs v. Holder, 758 F.3d at 997 n.3. The original provision in the IRCA states 

that a Form I-9 “may not be used for purposes other than for enforcement of this Act,” 

but the version in the United States Code substitutes the word “chapter” for “Act.” The 

court stated that this did not affect its analysis. Id. We agree.
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Moreover, we find other support for our reading of the statute, most

notably in section 212(a)(6)(C)(ii)(I) of the Act. This provision explicitly

encompasses violations of section 274A within the inadmissibility grounds, 

and the Form I-9 is a specific creation of that section. See supra note 3.

Furthermore, an identical reference to section 274A is included in section 

237(a)(3)(D)(i) of the Act, which makes a false claim to citizenship 

a ground for deportation.

In his supplemental brief on appeal, the respondent asserts that recent 

case law calls into question whether a Form I-9 is admissible as evidence to 

prove that an alien is inadmissible. He cites to several cases, including 

Arizona v. United States, 132 S. Ct. 2492 (2012), and Lozano v. City of 

Hazleton, 724 F.3d 297 (3d Cir. 2013). These cases address the degree to 

which Federal immigration law preempts various State or local provisions 

that pertain to the treatment of aliens who are not authorized to work or 

live in the United States. 5 See generally Chamber of Commerce of 

U.S. v. Whiting, 131 S. Ct. 1968; Keller v. City of Fremont, 719 F.3d 931 

(8th Cir. 2013). 

The petitioner in Downs raised a similar argument. The Eighth Circuit 

responded as follows:

Arizona and Whiting were cases concerning federal preemption of state statutes and 

the use of an I-9 form in a removal proceeding was not an issue raised in either 

case. As such, the decisions do not constitute binding precedent on this issue 

which would overrule the plain meaning of the text of [section] 274A(b)(5).

Downs v. Holder, 758 F.3d at 997. Since the respondent’s case is governed 

by the Eighth Circuit’s decision, his argument that a Form I-9 cannot be 

used as evidence in removal proceedings is unavailing.

We agree with the Eighth Circuit’s rationale in Downs and will continue 

to accept the admissibility of I-9 forms as evidence in removal proceedings 

nationwide. The Form I-9 has long been recognized as an admissible

document in immigration proceedings, and numerous Federal cases have 

held that the form may be used to support charges of removability against 

an alien and to determine his or her eligibility for relief from removal. 

 

5 The respondent cites to a statement of the Supreme Court that “Congress has made 

clear, however, that any information employees submit to indicate their work status ‘may 

not be used’ for purposes other than prosecution under specified federal criminal statutes 

for fraud, perjury, and related conduct.” Arizona v. United States, 132 S. Ct. at 2504

(quoting sections 247A(b)(5), (d)(2)(F) of the Act). However, section 274A(b)(5) was 

not relevant to the Court’s discussion in Arizona, and it did not quote the entire section, 

which includes the language regarding enforcement of the Act. 
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See, e.g., Castro v. Att’y Gen. of U.S., 671 F.3d at 369 & n.9; Crocock 

v. Holder, 670 F.3d at 403; Ferrans v. Holder, 612 F.3d at 533; Hashmi 

v. Mukasey, 533 F.3d at 703; Kechkar v. Gonzales, 500 F.3d at 1084; Ateka 

v. Ashcroft, 384 F.3d 954 (8th Cir. 2004); see also Matter of Guadarrama, 

24 I&N Dec. 625 (BIA 2008); Matter of Lazarte, 21 I&N Dec. 214 (BIA 

1996). We discern no change of law that would now preclude the use of 

the form in removal proceedings.

B. False Claim to United States Citizenship 

The Immigration Judge’s adverse credibility determination is not clearly 

erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2014); see also Matter of R-S-H-, 

23 I&N Dec. 629, 637 (BIA 2003) (discussing the deferential nature of 

clear error review). In reaching his conclusion, the Immigration Judge 

properly considered the totality of the circumstances and relied on direct 

and circumstantial evidence, including the two I-9 forms with the 

respondent’s signature, the unexplained discrepant social security cards, the 

respondent’s equivocal testimony, and his demeanor. See section 

240(c)(4)(C) of the Act. Although the respondent argued that he could not 

recall checking the citizenship box on either form, the Immigration Judge 

was not required to accept his version of events. See Matter of D-R-,

25 I&N Dec. 445, 455 (BIA 2011) (explaining that an Immigration Judge is 

not required to accept a respondent’s assertions, even if plausible, where 

there are other permissible views of the evidence based on the record); see 

also Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) (stating that an 

alien’s intent is a factual finding, which is reviewed for clear error).

The I-9 forms in evidence, which were completed and submitted to two 

different employers several weeks apart, bear similar handwriting and 

signatures. Significantly, the respondent never offered an explanation that

satisfied the Immigration Judge regarding the signatures on the forms,

which he conceded resembled his own signature. Also, the respondent did 

not satisfactorily explain why both employers would have copies of a social 

security card that did not contain the employment limitation found on 

a card that he acknowledges is his. While altered social security cards are 

not evidence of a false claim to citizenship, the presence of these cards in 

the files of two separate employers supports the Immigration Judge’s 

adverse credibility finding. 

The respondent suggests that the DHS should have presented evidence 

to show who, in fact, completed the I-9 forms in question, including 

providing more evidence from the respondent’s employers. However, the 

respondent bears the burden of proof to show that he did not make a false 

claim to citizenship and that he is clearly and beyond doubt admissible 
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under section 212(a)(6)(C)(ii) of the Act. See sections 240(c)(2)(A), (4), 

245(a) of the Act; 8 C.F.R. § 1240.8(d). He must therefore present

documents or other evidence to support his position and cannot shift the

burden to the DHS by suggesting the evidence that it could have sought to 

obtain or that the Immigration Judge should have required. 

As the trier of fact, the Immigration Judge had ample support in the 

record for his finding that the respondent made a false claim to citizenship 

and is therefore inadmissible under section 212(a)(6)(C)(ii) of the Act. We

agree with his determination that the respondent did not establish his 

eligibility for relief from removal. 8 C.F.R. § 1003.1(d)(3)(ii). 

III. CONCLUSION

The Immigration Judge properly relied on the I-9 forms to find that the 

respondent made a false claim to United States citizenship. Consequently,

the respondent has not clearly and beyond doubt demonstrated that he is 

admissible to the United States and therefore cannot establish eligibility 

for adjustment of status. Furthermore, given the respondent’s lack of 

credibility at his hearing concerning the completion of the I-9 forms and the 

Immigration Judge’s other findings regarding the forms, we agree that the 

respondent’s request for voluntary departure should be denied in the 

exercise of discretion. See section 240B(b) of the Act. Accordingly, the

respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.