United States Court of Appeals

For the Eighth Circuit

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No. 13-1558

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Cyprian Mayemba

lllllllllllllllllllllPetitioner

v.

Eric H. Holder, Jr., Attorney General of the United States

lllllllllllllllllllllRespondent

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No. 13-2469

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Cyprian Mayemba

lllllllllllllllllllllPetitioner

v.

Eric H. Holder, Jr., Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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Submitted: November 12, 2014

 Filed: January 13, 2015

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Before BYE, SHEPHERD, and KELLY, Circuit Judges.

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BYE, Circuit Judge.

Cyprian Mayemba petitions for review of the decision of the Board of

Immigration Appeals ("BIA") finding him removable and inadmissible based on his

representation of United States citizenship in a Form I-9 employment verification

form and the BIA's denial of his motion for reconsideration. We deny the

consolidated petitions for review.

Mayemba is a native and citizen of Tanzania. He came to the United States on

January 6, 2001, under an F-1 nonimmigrant, student visa to pursue his education at

Wichita State University in Wichita, Kansas. Unfortunately, after the unexpected

death of his father, Mayemba was unable to afford enrolling at Wichita State. He

remained in the country, however, and, on April 13, 2004, he married NaCeea

Johnson (now Mayemba). Soon after, they had a child, and Mrs. Mayemba filed a

family-based, immediate-relative I-130 visa petition on behalf of Mayemba. 

Mayemba simultaneously filed an I-485 application to adjust his status. The I-130

petition was approved; however, United StatesCitizenship and Immigration Services

denied the I-485 application, finding Mayemba to be inadmissable based on a prior

false claim of United States citizenship in a June 2001 application for admission to

a technical college.

On June 1, 2009, the Department of Homeland Security ("DHS") issued a

Notice to Appear to Mayemba, charging him with removability under 8 U.S.C.

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§§ 1227(a)(3)(D) and 1227(a)(1)(C)(i). As amended, the Notice to Appear alleged

Mayemba:

1) was not a citizen or national of the United States;

2) was a native and citizen of Tanzania;

3) was admitted to the United States on or about January 6, 2001, as an

F-1 student;

4) admitted to a violation of his nonimmigrant status by working without

authorization;

5) was employed for wages at Schowalter Villa in Hesston, Kansas

without proper authorization; and

6) represented himself to be a United States citizen on or about June 3,

2003, to gain employment at Schowalter Villa in Hesston, Kansas.

In the removal proceeding, Mayemba admitted allegations 1, 2, 3, and 5 but

denied allegations 4 and 6. He conceded removability under § 1227(a)(1)(C)(i) but

denied the false-claim charge under § 1227(a)(3)(D). Additionally, he indicated his

intent to seek adjustment of status based on the approved I-130 petition.

After a hearing on the contested issues, on February 18, 2011, the immigration

judge ("IJ") made an oral decision sustaining the charges ofremovability and denying

Mayemba's application for adjustment of status. The IJ overruled Mayemba's

objections to the admission of the Form I-9, rejected Mayemba's claim he had been

told to mark the checkbox on the Form I-9 and application for admission into the

technical college, found the DHS met its burden of demonstrating Mayemba was

removable, and found Mayemba failed to meet his burden of showing he was

admissible.

Mayemba then petitioned for review to this court and concurrently filed a

motion for reconsideration with the BIA, which was denied on June 17, 2013. In

denying Mayemba's motion, the BIA noted Mayemba did not contest the charge of

removability under § 1227(a)(1)(C)(i), reaffirmed its conclusion the Form I-9 was

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admissible in the proceeding, and affirmed its decision Mayemba was removable

under § 1227(a)(3)(D). Mayemba then petitioned for review of the BIA's decision on

his motion for reconsideration, and the two cases were consolidated.

"We review the BIA's decision, as it is the final agency decision; however, to

the extent that the BIA adopted the findings or the reasoning of the IJ, we also review

the IJ's decision as part of the final agency decision." Davila-Mejia v. Mukasey, 531

F.3d 624, 627 (8th Cir. 2008). The BIA's legal determinations are reviewed de novo,

but the Court accords "'substantial deference to the BIA'sinterpretation ofthe statutes

and regulations it administers.'" Spacek v. Holder, 688 F.3d 536, 538 (8th Cir. 2012)

(quoting Davila-Mejia, 531 F.3d at 627).

"It is well settled that 'an immigration judge is in the best position to make

credibility findings because he or she sees the witness as the testimony is given.'"

Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005) (quoting Mayo v. Ashcroft, 317

F.3d 867, 871 (8th Cir. 2003)). Thus, "[t]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary." Goswell-Renner v. Holder, 762 F.3d 696, 699 (8th Cir. 2014) (citing 8

U.S.C. § 1252(b)(4)(B) and INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).

On appeal, Mayemba argues (1) as a matter of law a representation in a Form

I-9 cannot be the basis for a false claim of United States citizenship in a removal

proceeding; and (2) even if it can, Mayemba's disjunctive representation of "citizen

or national" cannot be a false claim of United States citizenship.

With regard to the first issue, Mayemba asserts, based on the statutory language

and legislative history, Form I-9 has a very limited purpose such that it may not be

used in removal proceedings. Distilled to its core, the argument centers on whether

the statute's reference to "Act" refers to the INA or the Immigration Reform and

Control Act of 1986 ("IRCA"). Mayemba believes it refers to the IRCA. We very

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recently rejected this exact argument in a similar case argued by Mayemba's attorney. 

See Downs v. Holder, 758 F.3d 994, 997 (8th Cir. 2014) (holding that because

"Section 274A(b)(5) is a section of the INA, the plain and unambiguous meaning of

the reference to 'this Act' is to the INA" and that "INA § 274A(b)(5) allows the

admission of I-9 forms into evidence in removal proceedings"). Mayemba fails to

distinguish Downs in any way, and we continue to believe its reasoning is sound. 

Accordingly, we again reject this argument.

As to Mayemba's second argument, although the government addressed the

issue at oral argument, Mayemba did not pursue it. Because we cannot be sure

Mayemba has abandoned the issue, we construe his written submission as an

argument that the BIA erred in finding him inadmissible and briefly discuss it.

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An alien is inadmissible if he "falsely represents, or has falsely represented,

himself . . . to be a citizen of the United States for any purpose or benefit under [the

Act]." See 8 U.S.C. § 1182(a)(6)(C)(ii). With respect to his adjustment of status and

showing of admissibility, Mayemba had the burden of showing clearly and beyond

a doubt he was admissible. See Hashmi v. Mukasey, 533 F.3d 700, 704 (8th Cir.

2008).

As a matter of law, we agree with Mayemba the mere fact he checked the

disjunctive citizenship box on the Form I-9 alone cannot be sufficient to demonstrate

a false claim of United States citizenship. See Rodriguez v. Mukasey, 519 F.3d 773,

776-77 (8th Cir. 2008) (explaining that by checking the box, a "person ambiguously

represents that he is either a citizen or a national" and that "[a] false representation

by an alien that he is a national of the United States would not make him inadmissible

. . . ."); Hashmi, 533 F.3d at 704 (reiterating it is possible "an alien who has checked

the 'citizen or national' box has not represented himself to be a citizen"). However,

Because Mayemba conceded removability under § 1227(a)(1)(C)(i), and has

1

not challenged it on appeal, we need not address it.

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additional evidence may "support a finding that the alien marked the 'citizen or

national of the United States' box on a Form I-9 with the purpose of representing

himself as a citizen, not a national." Rodriguez, 519 F.3d at 777; see also Hashmi,

533 F.3d at 704 (explaining that "[i]n any given case, the significance of the form

may depend on the credibility of the alien's testimony concerning his intent in

checking the box").

In this case, additional evidence supportsthe BIA'sfinding Mayemba failed to

meet his burden of showing he did not make a false claim of United States

citizenship. For example: 1) Mayemba had unambiguously represented himself to

be a United States citizen in the Wichita technical college application for admission;

2)the application for admission specifically directed Mayemba to stop the application

and contact the admissions office if he was not a United States citizen–something he

did not do; 3) he testified at the time he filled out the application he knew he was not

a United States citizen; 4) Mayemba testified he knew a person born in the United

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States is a United States citizen; 5) Mayemba introduced no evidence showing he

believed he was a noncitizen national; to the contrary, he testified he did not know

what it meant to be a national. Because substantial evidence supports the BIA's

finding Mayemba failed to meet his burden of showing he did not make a false claim

of United States citizenship, he did not prove he was admissible. See Rodriguez, 519

F.3d at 777 (considering fact the petitioner "did not testify and [did] not argue that he

meant to indicate that he was a national" and rejecting the petitioner's argument he

did not "understand what it meant when he marked the 'citizen [or] national of the

United States' box"); Kirong v. Mukasey, 529 F.3d 800, 804-05 (8th Cir. 2008)

(finding substantial evidence supported the determination ofinadmissability because

the petitioner "testified that he did not know what a national was and also that a

Although the application for admission was not the basis for the false claim

2

of United States citizenship, it may still be relevant evidence of Mayemba's intent in

marking the checkbox on the Form I-9 as it relates to whether he was admissible.

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citizen was a person born in the United States[, and] [h]e knew that he was not born

in the United States and was not a United States citizen"); Hashmi, 533 F.3d at 704

(upholding inadmissibility determination because the petitioner had unambiguously

represented in another employer form he was a United States citizen and because he

"admitted at the hearing that he knew a person born in the United States is a United

States citizen").

Finally, as to Mayemba's appeal of the BIA's denial of his motion for

reconsideration, such motions are reviewed for an abuse of discretion. See, e.g., INS

v. Doherty, 502 U.S. 314, 323 (1992). "The BIA abuses its discretion where it gives

no rational explanation for its decision, departs from its established policies without

explanation, relies on impermissible factors or legal error, or ignores or distorts the

record evidence." Mshihiri v. Holder, 753 F.3d 785, 789 (8th Cir. 2014) (internal

quotation marks omitted). Mayemba did not present anymeaningful argument on the

issue and we find no abuse of discretion.

For these reasons, the petitions for review are denied.

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