NOT RECOMMENDED FOR PUBLICATION 

File Name: 18a0215n.06 

No. 17-3796 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

GWAMAKA ABELY MWAMLENGA, 

 Petitioner, 

 v. 

JEFFERSON B. SESSIONS, III, Attorney General, 

 Respondent. 

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS 

BEFORE: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges. 

GRIFFIN, Circuit Judge. 

Petitioner Gwamaka Abely Mwamlenga seeks review of the Board of Immigration 

Appeals (BIA) decision denying his application to adjust his immigration status and ordering his 

removal. Mwamlenga now contends that the immigration judge (IJ) (1) erred in finding him not 

credible and (2) violated his due-process rights by admitting into evidence an I-9 form that was 

not provided to him at least 15 days before the hearing, as required by the immigration court’s 

practice manual. Because petitioner’s arguments are meritless, we deny his petition. 

I. 

Mwamlenga initially came to the United States from Tanzania in 2012 on a student visa. 

Unfortunately, however, halfway through petitioner’s first semester of college his brother passed 

away. His brother had been paying his tuition and expenses, and without the financial means to 

continue, petitioner dropped out of college. In June of 2013, he applied for a job with Charter 
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HR. Petitioner filled out an I-9 employment eligibility form, in which he claimed under penalty 

of perjury that he was a United States citizen. After two weeks at the company, his supervisor 

told him that there was a problem with his paperwork and that the “E-Verify” system reported 

that he was not authorized to work. Mwamlenga knew he could not legally work, so he did not 

attempt to fix the issue, which he could have done by going to a Social Security Administration 

office and contesting the “E-Verify” report. Charter HR then terminated his employment. 

In July of 2013, the government instituted removal proceedings against Mwamlenga. In 

September of that year he married Tiffany Luke, who filed on his behalf an I-130 petition to 

change Mwamlenga’s status on the basis of their marriage. The parties appeared for a merits 

hearing on the government’s removal petition in July of 2014, during which petitioner testified. 

The IJ found that Mwamlenga was not credible because he “was nonresponsive to questions 

from the [government] counsel and the [IJ] and failed to explain prior false statements when 

asked to do so.” Ultimately, the IJ denied petitioner’s application to change his status and 

ordered him removed to Tanzania under the Immigration and Nationality Act (INA), finding that 

“he had not establish[ed] that he did not knowingly and willfully make a false claim to U.S. 

citizenship.” 

Mwamlenga timely appealed the IJ’s decision to the BIA, raising issues with the IJ’s 

credibility determination against him and an alleged due-process violation because the 

government presented his I-9 form as evidence at the hearing without previously providing it to 

him. The BIA affirmed and dismissed Mwamlenga’s petition. On the credibility issue, the BIA 

held that, even ignoring the IJ’s credibility determination, Mwamlenga’s own testimony 

established that he checked the box on the I-9 form that claimed he was a United States citizen 

and immediately knew he could not fix the issue at a local Social Security office because he was 
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not permitted to work. Thus, reasoned the BIA, on petitioner’s own testimony—and without 

accepting the IJ’s credibility determination—the government had established grounds for 

removal. On his due-process challenge to the admission of the I-9 form, the BIA found that the 

form was admissible in the agency proceedings, and held that petitioner could not establish any 

prejudice from its admission. As a result, the BIA affirmed the IJ’s decision and dismissed the 

appeal. 

II. 

When the BIA issues a separate opinion upon review of an IJ’s decision, we review the 

BIA ruling as the final agency determination. Kamar v. Sessions, 875 F.3d 811, 817 (6th Cir. 

2017). To the extent the BIA adopts the IJ’s reasoning, however, we also review the IJ’s 

decision. Fisenko v. Lynch, 826 F.3d 287, 290 (6th Cir. 2016). We review legal determinations 

de novo, but grant substantial deference to the BIA’s interpretation of the INA and 

accompanying regulations. Morgan v. Kiesler, 507 F.3d 1053, 1057 (6th Cir. 2007). Under the 

substantial evidence standard, factual determinations are sustained if they are “supported by 

reasonable, substantial, and probative evidence on the record considered as a whole.” AlGhorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009) (internal quotation marks and citation 

omitted); see also 8 U.S.C. § 1252(b)(4)(B). We will not reverse such findings simply because 

we would have decided them differently. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). 

We review de novo alleged due-process violations regarding the manner in which a deportation 

hearing was conducted. Hassan v. Gonzales, 403 F.3d 429, 435 (6th Cir. 2005). 
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III. 

Petitioner first challenges the IJ’s credibility determination. But because the BIA did not 

rely upon this credibility determination in making its decision, which is the agency decision that 

we review in this case, his claim of error fails. 

While a non-immigrant alien may seek adjustment of his status to that of a person 

admitted to permanent residence in the United States, see 8 U.S.C. § 1255(a)—as Mwamlenga 

did here—the “alien bears the burden of establishing that he is ‘clearly and beyond [a] doubt 

entitled to be admitted and is not inadmissible.’” Ferrans v. Holder, 612 F.3d 528, 531 (6th Cir. 

2010) (quoting Matovski v. Gonzales, 492 F.3d 722, 738 (6th Cir. 2007)). And under 8 U.S.C. 

§ 1227(a)(3)(D)(i) and § 1182(a)(6)(C)(ii)(I), “[a]ny alien who falsely represents, or has falsely 

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

INA] or any Federal or State law is deportable,” or “inadmissible.” Indeed, falsely claiming 

citizen status on an I-9 form meets the definition of such a “false[] represent[ation].” Ferrans, 

612 F.3d at 532. 

Here, the BIA found that “[w]hile [Mwamlenga] disputes the [IJ]’s adverse credibility 

determination on appeal,” the record from the hearing established that he claimed to be a United 

States citizen on his I-9 form, and “he did not go to the [Social Security Administration] to 

contest the finding [that he was unable to work] because he knew he could not prove he is a 

United States citizen, as he represented on the Form I-9 in order to work.” In other words, the 

BIA did not rely on the IJ’s credibility finding in affirming the removal decision. When the BIA 

issues its own decision and reasoning, we review that opinion. Kamar, 875 F.3d at 817. And so, 

even assuming petitioner is correct in his challenge to the IJ’s credibility finding, that finding is 

irrelevant to the agency determination in this case. 
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Instead, the BIA had ample evidence to support its conclusion that that Mwamlenga was 

removable under 8 U.S.C. § 1227(a)(3)(D)(i), and not eligible for an adjustment of status under 

§ 1255(a). Petitioner admitted that he checked the box for United States citizens on his signed I9 form under penalty of perjury. He then testified that he did not go to a Social Security office to 

contest the initial finding that he was ineligible to work because he knew he could not confirm 

that he was a citizen, even though he so claimed on the I-9 form. This evidence, wholly separate 

from Mwamlenga’s credibility, was sufficient to prove that he falsely claimed citizen status and 

was removable and ineligible for adjustment of status. Ferrans, 612 F.3d at 531–32. 

IV. 

Next, petitioner claims that he was denied due process by the admission of the I-9 form 

without it being provided to him at least 15 days before the hearing. This argument also lacks 

merit. 

“Fifth Amendment guarantees of due process extend to aliens in [removal] proceedings, 

entitling them to a full and fair hearing. To constitute fundamental unfairness, however, a defect 

in the removal proceedings must have been such as might have led to a denial of justice.” 

Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001) (internal quotation and citations 

omitted). “[R]eviewing an alleged due process violation is a two-step inquiry: first, whether 

there was a defect in the removal proceedings; and second, whether the alien was prejudiced 

because of it.” Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). “To establish the requisite 

prejudice, the petitioner must show that the due process violations led to a substantially different 

outcome from that which would have occurred in the absence of those violations.” Zheng v. 

Lynch, 819 F.3d 287, 297 (6th Cir. 2016) (alterations and internal quotation marks omitted). 
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Mwamlenga argues that the admission of the I-9 form was improper because the 

Immigration Court Practice Manual requires that all exhibits be filed with the IJ and opposing 

party at least 15 days before the removal hearing, and counsel for the government intentionally 

hid the I-9 form until the last minute. Petitioner is correct that “filings must be submitted at least 

fifteen (15) days in advance of the hearing,” under the immigration court’s own operating 

procedures. Immigration Court Practice Manual § 3.1(b)(ii)(A). But he fails to note that a 

violation of this rule in no way requires the remedy of exclusion of the late-filed evidence. The 

manual provides that “[t]he untimely submission of a filing may have serious consequences,” but 

that “[t]he Immigration Judge retains the authority to determine how to treat an untimely filing.” 

§ 3.1(d)(ii) (emphasis added). In fact, the practice manual notes that exclusion of an untimely 

exhibit is a consequence that is only applicable “sometimes.” Id. And given that petitioner 

never objected to the admission of the I-9 form, it is unclear how the IJ might have abused its 

discretion in admitting it. See Singh v. Ashcroft, 398 F.3d 396, 406–07 (6th Cir. 2005) (noting 

the broad discretion IJs have in making evidentiary determinations). 

Furthermore, we see no “fundamental unfairness” resulting from the admission of the I-9 

form at the removal hearing despite that it was not timely provided to Mwamlenga. See 

Huicochea-Gomez, 237 F.3d at 699. Petitioner’s own testimony about the jobs he had after 

dropping out of college led to discussion of Charter HR. (A.R. 97-99). Before even being 

presented with the I-9 form, Mwamlenga testified that he remembered having to answer 

questions about whether he was authorized to work in the United States when applying for that 

job. When he was presented with the I-9 form, he had no trouble identifying it as the document 

he filled out to apply to Charter HR. While he could not explain his reasoning in checking the 

box denoting that he was a citizen of the United States, this confusion did not relate to the 
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existence of the form. As a result, petitioner was able to testify candidly about what happened 

when “E-Verify” returned with a problem relating to his application, as well as his knowledge at 

the time, i.e., that he could not sort out the problem because he was not permitted to work. Thus, 

it is clear that the contents of the I-9 form did not take him by surprise, and Mwamlanga was not 

prejudiced by the form’s admission. 

In short, the I-9 form was admissible evidence at the removal hearing, Matter of Bett, 

26 I&N Dec. 437, 441 (BIA 2014), and Mwamlenga has not demonstrated any prejudice arising 

from the government’s failure to provide him with the I-9 form at least 15 days beforehand. His 

due-process claim therefore fails. Zheng, 819 F.3d at 296–97. 

V. 

For these reasons, we deny Mwamlenga’s petition for review.