They Got It Wrong Sam: Why the BIA should reconsider Matter of Bett


Should a false claim of US citizenship made on an I-9 be admissible in immigration proceedings to sustain removal charges and influence a respondent’s claim for relief? The Board of Immigration Appeals very recently answered this question in the affirmative when it decided Matter of Bett, 26 IN Dec. 437 (BIA Oct. 30, 2014). Since this case arose within the jurisdiction of the Eighth Circuit Court of Appeals, the BIA was bound by a similar holding handed down in Downs v. Holder, 758 F. 3d 994 (8th Cir. 2014). There is reason to question whether these decisions comport with recent Supreme Court guidance on the proper scope of I-9 usage and with the intent of Congress as expressed in the plain language of IRCA itself. Simply stated, such an examination casts serious doubt on whether Section 274A (b) (5) of the Immigration and Nationality Act sanctions the use of the I-9 as evidence in an immigration hearing. For this reason, the BIA should reconsider and revise Matter of Bett at the earliest possible opportunity.

It is certainly true that both Sections 212 (a) (6) (C) (ii) and 237 (a) (3) (D) (i) explicitly list a false claim to US citizenship as a ground of inadmissibility and removal respectively. Both the Eighth Circuit and the BIA conclude that the purpose of the I-9 is to enforce the provisions of the entire INA rather than being limited to enforcement of IRCA. They base this on the fact that Section 274A (b)(5) which codifies the I-9 employment eligibility verification form is part of the INA and thereby linked to all other provisions that arise under it. Is this the only or even the most textually faithful way of understanding the law? The codification process does not create new law but, rather, necessarily involves the placement of existing positive law into the larger corpus of the United States Code. The wording of INA 274A (b)(5) was lifted word for word out of Section 101 (b)(5) of IRCA and its purpose was to constrain the operation of employer sanctions compliance and not allow the I-9 to be used in any other fashion or for any other purpose. The codification of IRCA into the INA reaffirmed the law but did not enlarge or amend it. Beyond that, if there is an honest doubt whether the dispositive phrase “ enforcement of this Act” refers to the entire INA or just IRCA, would it not be a well-settled canon of statutory interpretation to favor the strict construction in order to avoid the inherent dangers of a more expansive reading ? Both the Eighth Circuit and the BIA rest their analysis on IRCA being part of the INA. There is no question that IRCA as explicitly stated in Section 1 (b) amended the INA to insert the employer sanctions regime. Previously, as the Supreme Court noted in De Canas v. Bica, 424 U.S. 351 (1976), the INA had not addressed this issue. However, saying that IRCA is part of the INA does not mean that the purpose or effect of the I-9 can extend beyond enforcement of IRCA or of employer sanctions. There is, therefore, no reason not to agree with the Eighth Circuit and the BIA that IRCA amended the INA but scrupulously refrain from then taking the fateful step of allowing the I-9 to be used for purposes that Congress never intended.”

Cutting through all the legal niceties, it all comes down to this: the Form I-9, and the information in it and appended to it, “may not be used for purposes other than for enforcement of this Act and sections 1001, 1028, 1546, and 1621 of title 18, United States Code.” 8 U.S.C. § 1324a (b) (5). Let’s assume, for argument’s sake that the alleged false claim dates from 2010, after the April 3, 2009 Form I-9 revision that separated the disjunctive terms United States “national” and “citizen” from a single check box. Before then, the false claim charge was harder to prove. See U.S. v. Karaouni, 379 F.3d 1139 (9th Cir. 2004).The purpose of the I-9 is to verify the right to work in the United States. In fact, if you look at what Chief Justice Roberts said in Chamber of Commerce of the United States v. Whiting, we find this golden nugget:

The form I-9 itself “and any information contained in or appended to (it) may not be used for any purposes other than for enforcement of” IRCA and other specified provisions of federal law. Sec. 1324a (b) (5). (Emphasis added)

Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968, 179 L.Ed.2d 1031, 2011 U.S. LEXIS 4018, 79 U.S.L.W. 4350 (2011). (The quote is on page 4 of slip opinion.)

If the BIA and the Eighth Circuit could find nothing in the INA or IRCA to limit the application of the I-9 to IRCA, Chief Justice Roberts had no trouble in locating the authoritative textual statement which can be found on page 4 of the slip opinion and is followed by an in-depth recitation of IRCA sanctions. For some unexplained reason, neither the Eighth Circuit nor the BIA quoted Chief Justice Roberts on what is undoubtedly the controlling issue in the case.

Any false claim to U.S. citizenship came after IRCA and was not a ground of inadmissibility when IRCA was enacted in 1986. The false claim language was added to the INA ten years after IRCA by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). That is why, in most cases, it is impossible to contend that any statement concerning citizenship on an I-9 is legally or logically related to IRCA enforcement. Had Congress intended the Executive Branch to use the Form I-9 for purposes other than enforcement, then they would have revised the law to allow for such use. There is no regulatory basis for this at the present time. I would rely on Whiting to suppress any attempt by the USCIS naturalization examiner, adjudicator or trial attorney who is not involved in worksite enforcement to use your client’s I-9 as a basis to deny a naturalization application, adjustment of status or claim for relief in removal. It is precisely because the Whiting court held fast to such a strictly limited interpretation of the I-9 that it sustained the Arizona law as coming within the scope of IRCA’s savings clause against a pre-emption challenge. In this sense, far from being dicta, the comments on the I-9 by Chief Justice Roberts in Whiting are absolutely central to the logic of the Court’s holding. Had Arizona deviated from the strict purpose of the I-9, arguably the result in Whiting would have been fundamentally different. You have to be on guard for any attempt to dredge up pre-Whiting case law in order to argue that use of the I-9 is not limited to IRCA enforcement. It is very much in doubt as to whether all or any such expansive interpretations survive the careful pruning and well – considered modesty provided to us by Whiting, which has restored the I-9 to its proper and more limited place in our jurisprudence.

The views expressed are solely and completely those of the author.

About The Author

Gary Endelman Gary Endelman is the Senior Counsel at Foster in Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country.

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