                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1027
                        ___________________________

                             Munna Songe Godfrey

                            lllllllllllllllllllllPetitioner

                                          v.

                Loretta E. Lynch, United States Attorney General

                           lllllllllllllllllllllRespondent
                                   ____________

                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                                  ____________

                         Submitted: September 21, 2015
                            Filed: January 22, 2016
                                ____________

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
                              ____________

BYE, Circuit Judge.

      Munna Songe Godfrey petitions for review of the Board of Immigration
Appeals' (BIA) decision denying his application for adjustment of status. An
immigration judge (IJ) denied Godfrey's application after finding Godfrey intended
to represent himself as a United States citizen on an I-9 Employment Eligibility
Verification Form. The BIA affirmed. We deny Godfrey's petition for review.
                                          I

      Petitioner Munna Godfrey is a 36-year-old native of Tanzania who came to the
United States in May 2002 to attend Wichita State University under an F-1
nonimmigrant student visa. Godfrey dropped out of Wichita State in August 2002,
but he has remained in the United States since. In 2004 he married Traci Godfrey,
with whom he has one biological son and four step-children.

       After dropping out of Wichita State, Godfrey attended other colleges and
worked at a supermarket and College Hill Nursing and Rehabilitation Center. Each
employer required Godfrey to fill out an I-9 Employment Eligibility Verification
form, and each time he filled out the form, Godfrey checked a box indicating he was
“a citizen or national of the United States.”

       In December 2005, Traci Godfrey filed an I-130 Petition for Alien Relative on
behalf of her husband, which was approved in September 2006. After the I-130 was
approved, Godfrey applied to the United States Citizen and Immigration Service
(USCIS) to adjust his status to lawful permanent resident. However, USCIS denied
Godfrey’s application in October 2006 because he admitted he had falsely represented
that he was a United States citizen when he applied to a community college.

      On April 17, 2009, USCIS served Godfrey with a Notice to Appear, which
charged him with violating the terms of his student visa. Godfrey appeared with
counsel for a hearing before an IJ, admitted the allegations in the Notice to Appear,
and conceded he was removable. But he requested a hearing on his application for
adjustment of status under Section 245 of the Immigration and Nationality Act (INA),
codified at 8 U.S.C. § 1255.

     The IJ held an evidentiary hearing on the application for adjustment of status
on April 9, 2010. At the hearing, USCIS opposed Godfrey's application on the

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grounds that he falsely represented he was a citizen when he applied for community
college. But it also cross-examined Godfrey about his representations in the I-9
forms he filled out in his employment applications. Godfrey testified that when he
filled out the I-9 forms he hoped his employer would believe he was a United States
citizen because he would not have a job if his employer found out he was not a United
States citizen. At the end of the hearing, the IJ stated he would not consider the I-9
forms because they were not in the record before him, and he indicated he would
grant Godfrey's application for adjustment. Godfrey had not completed his
biometrics, however, so the IJ continued the hearing to June 4, 2010, and did not
enter a decision.

       A week before the hearing, the Department of Homeland Security filed an I-9
Form that Godfrey completed for College Hill Nursing and Rehabilitation on March
10, 2010 – five months after his first hearing before the IJ – on which he again
indicated that he was a “citizen or national of the United States.” Godfrey’s counsel
filed a supplemental brief and additional evidence. The IJ accepted each filing into
evidence and continued the hearing to February 16, 2011.

       At the February 2011 hearing, Godfrey testified about the March 10, 2010, I-9
Form. Godfrey testified he did not have the instruction form when he was filling out
the I-9 Form, and that, while he did not know what “national” meant, he knew what
a citizen was and he suspected a citizen was better than a national. He testified that
he marked the “citizen or national” box because he knew he had to mark it to keep his
job.

        The IJ found Godfrey’s testimony credible, but he also found Godfrey had
falsely represented himself to be a citizen, not a national, on the I-9 Form. While
Godfrey was unable to provide a specific definition of the term “citizen,” and did not
know the difference between a “citizen” and a “national,” the IJ noted that Godfrey
testified he knew that “representing himself as a citizen would be more helpful in

                                         -3-
obtaining employment,” and he would lose his job if he was not a citizen. The IJ
found significant that Godfrey had misrepresented his citizenship status on an I-9
Form five months after he first appeared before the court for removal proceedings.
Based on this evidence, the IJ found Godfrey had failed to demonstrate “clearly and
beyond a doubt” that he was admissible to the United States because he purposefully
represented himself to be a United States citizen in order to obtain a benefit under the
INA, a non-waivable violation. 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The IJ therefore
denied Godfrey’s application for adjustment of status and ordered Godfrey removed
to Tanzania.

      Godfrey appealed to the BIA. The BIA affirmed the IJ’s findings that Godfrey
knew he was not a citizen and that his false claim of citizenship for employment was
non-waivable, and it rejected Godfrey’s argument that the IJ erred by reopening the
record to accept the I-9 forms. It adopted the IJ’s decision and dismissed Godfrey’s
appeal on March 20, 2013.

      Godfrey timely petitioned this Court in April 2013, but moved to remand to the
BIA so it could determine whether an I-9 Form could be used as evidence in a
removal proceeding. Godfrey argued three decisions following his 2011 immigration
hearing – the United States Supreme Court's decisions in Chamber of Commerce v.
Whiting, 563 U.S. 582 (2011), and Arizona v. United States, 132 S. Ct. 2492 (2012),
and the Third Circuit's decision in Lozano v. City of Hazelton, 724 F.3d 297 (3d Cir.
2013) – affected this issue. This Court granted Godfrey’s motion and remanded to
the BIA.

      Before the BIA issued a decision in Godfrey's case on remand, this Court held
in Downs v. Holder, 758 F.3d 994, 998 (8th Cir. 2014), that an I-9 could be used as
evidence in a removal proceeding, and the BIA subsequently issued a decision with
the same holding. Matter of Bett, 26 I. & N. Dec. 437, 2014 WL 6680849 at *5 (BIA
Oct. 30, 2014) (citing Downs, 758 F.3d at 998). Citing these two cases, the BIA held

                                          -4-
in Godfrey's case that the IJ properly considered the I-9 forms, and it dismissed
Godfrey’s appeal. Godfrey timely petitioned this Court on January 7, 2015.

                                            II

       Godfrey petitions this Court for review of the BIA's decision on three grounds:
(1) the IJ's and BIA's decisions were unsupported by substantial evidence; (2)
Godfrey is eligible for a waiver of inadmissibility; and (3) the IJ's decision to consider
the I-9 forms after he initially indicated he would grant the petition violated due
process. We review the BIA’s legal determinations de novo, but we accord
“substantial deference to the BIA’s interpretation of the statutes and regulations it
administers.” Spacek v. Holder, 688 F.3d 536, 538 (8th Cir. 2012) (quoting Davila-
Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir. 2008)). We will overturn the BIA’s
findings of fact only if they are unsupported by substantial evidence. Garcia-
Gonzalez v. Holder, 737 F.3d 498, 500 (8th Cir. 2013). We typically review only the
BIA’s decision. Id. However, "when—as here—the BIA adopted the findings or the
reasoning of the IJ, we also review the IJ's decision as part of the final agency action."
Id. (internal quotations omitted).

                                            A

      Godfrey argues the BIA's finding that Godfrey falsely represented himself to
be a "citizen" and not a "national" on Form I-9 is unsupported by substantial
evidence.

       An alien may seek adjustment of his immigration status under 8 U.S.C.
§ 1255(a). To be eligible for adjustment, the alien must be eligible to receive an
immigrant visa and must be “admissible to the United States.” 8 U.S.C. § 1255(a)(2).
The alien petitioner bears the burden to prove “clearly and beyond doubt” that he is
not inadmissible. 8 U.S.C. §1229a(c)(2)(A).

                                           -5-
       An alien is inadmissible when, inter alia, he falsely represents himself as a
citizen of the United States for any purpose or benefit under the Immigration and
Nationality Act. 8 U.S.C. § 1182(a)(6)(C)(ii). This subsection does not disqualify
an alien from admission, however, when he falsely represents himself to be a national.
Id.; Rodriguez v. Mukasey, 519 F.3d 773, 776 (8th Cir. 2008).

       In this case, Godfrey checked a box on his Employment Eligibility Verification
Form I-9 that he was a "citizen or national." Form I-9 (emphasis added).1 But the
disjunctive "or" makes it impossible to tell whether the alien intended to represent
himself on Form I-9 as a citizen (in which case he is inadmissible) or a national (in
which case he may still apply for admission). Therefore, the mere fact of checking
the box is insufficient to find the alien intended to falsely represent himself as a
citizen. Mayemba v. Holder, 776 F.3d 542, 545–46 (8th Cir. 2015). Rather, the
alien’s purpose in checking the box is determinative. Rodriguez, 519 F.3d at 777.
The evidence must "clearly and beyond doubt establish that [the alien] did not falsely
represent himself as a United States citizen when he marked the ‘citizen or national
of the United States' box on the Form I-9s." Kirong v. Mukasey, 529 F.3d 800, 805
(8th Cir. 2008).

       Godfrey first argues the IJ did not properly analyze the legal issue of whether
he intended to represent himself as a citizen or a national. Godfrey notes that the IJ
misquoted Form I-9 in his summary of the evidence by stating Godfrey marked the
"citizen and nationality" box. While the IJ did misquote Form I-9, the record as a
whole shows he properly analyzed whether Godfrey intended to represent himself as
a citizen or national. Elsewhere in his analysis of Godfrey’s application for
adjustment, the IJ correctly quoted Form I-9 and explained that under Eighth Circuit
case law, the alien’s intent in checking the box is determinative. The IJ then


      1
       In 2009, USCIS updated Form I-9 to require the employee to indicate in
separate checkboxes whether he is a citizen or a national.

                                         -6-
analyzed, based on the evidence, whether Godfrey intended to represent himself as
a “national” or a “citizen.” The BIA, too, discussed whether Godfrey was claiming
to be a citizen or a national on Form I-9.

      Therefore, although the IJ did misquote Form I-9, the entirety of his analysis
shows he was properly analyzing the key legal issue: whether Godfrey intended to
represent himself as a citizen or a national. His initial misquote does not leave his
decision unsupported by substantial evidence. See Reyes-Morales v. Gonzales, 435
F.3d 937, 943 (8th Cir. 2006) (finding harmless the BIA’s reference to the wrong
subsection of a federal regulation where the BIA applied the correct language in its
analysis); Poerwantini v. Gonzales, 217 F. App’x 592, 593 (8th Cir. 2007) (“To the
extent that the IJ's analysis misstated or failed to incorporate facts included in the
‘Evidence Presented’ section of the order, any error is harmless because we will
review directly whether substantial evidence in the record supports the legal
determination of the BIA.”).

       Godfrey also argues the IJ's decision was unsupported by substantial evidence
because his testimony – which the IJ found credible – shows he did not know the
difference between a citizen and a national, and therefore he could not have
purposefully intended to represent himself as a citizen to gain an immigration benefit.
Godfrey's testimony, however, belies this argument. Godfrey testified he believed he
had to be a citizen to keep his job and he represented himself as a citizen because he
understood being a citizen was better than being a national. His testimony therefore
indicates he understood, to some extent, the difference between a citizen and a
national and represented himself as a citizen for purposes of gaining and keeping
employment.

      The timing of Godfrey's representations also supports the IJ's findings that
Godfrey represented himself to be a citizen, not a national, because Godfrey
continued to represent himself as a citizen even after his immigration proceedings

                                         -7-
commenced. In 2006, USCIS denied Godfrey's application to adjust his status to
lawful permanent resident because he had falsely represented he was a United States
citizen when he applied to community college. Godfrey's prior claims of false
citizenship alone are evidence of his intent to represent himself as a citizen. See
Mayemba, 776 F.3d at 546 n.2. But more importantly, the USCIS denial letter from
2006 shows Godfrey knew what a citizen was when he filled out the I-9 form in
March 2010 – four years after USCIS denied his application for lawful permanent
resident status and eleven months after his removal proceedings commenced. This
evidence supports the IJ's finding that Godfrey knew the difference between a citizen
and a national, and represented himself as a citizen because he believed he needed to
be a citizen to keep his job, as he testified.

       It is Godfrey's burden to prove clearly and beyond a doubt that he meant to
represent himself as a national and not a citizen. Kirong, 529 F.3d at 805. Godfrey
has produced no evidence that he intended to represent himself as a "national," and
any such evidence would contradict his testimony that he did not know what a
"national" is. See Mayemba, 776 F.3d at 546 (finding that, inter alia, the facts that
petitioner knew what a citizen was and did not know what a national was supported
finding of inadmissibility). Based on Godfrey's testimony, his prior false claims of
citizenship, and the false claim of citizenship he made after removal proceedings
commenced, the BIA's and IJ's finding that Godfrey falsely represented himself to be
a "citizen" is supported by substantial evidence.

                                         B

      Godfrey next argues he is eligible for waiver of inadmissibility. The INA
authorizes the Attorney General to waive inadmissibility under certain circumstances,
depending on the reason the alien is inadmissible. See generally 8 U.S.C. § 1182.
Under 8 U.S.C. § 1182(a)(6)(C), an alien may be inadmissible for (i) misrepresenting
a material fact in order to procure admission or immigration documentation; or (ii)

                                         -8-
falsely claiming to be a citizen of the United States to obtain a benefit. That
subsection also authorizes a "waiver of clause (i)" – misrepresenting a material fact
– in order to avoid hardship to the alien's family. 8 U.S.C. §§ 1182(a)(6)(C)(iii),
1182(i)(1). But it does not authorize a waiver of clause (ii), falsely claiming to be a
United States citizen to obtain a benefit.

       Godfrey was found to be ineligible for making a false misrepresentation of
citizenship under 8 U.S.C. § 1182(a)(6)(C)(ii), not under (6)(C)(i). The INA,
therefore, does not authorize a waiver of his ineligibility to avoid hardship to his
family. Sandoval v. Holder, 641 F.3d 982, 986 (8th Cir. 2011).

                                          C

      Finally, Godfrey argues the IJ violated his right to Due Process when he
admitted evidence of Godfrey's false representation on the I-9 Form after he already
granted Godfrey's petition for adjustment of status. This argument is both factually
and legally incorrect.

       First, the IJ had not concluded Godfrey's proceedings before he admitted the
I-9. At the end of the hearing on April 9, 2010, the IJ indicated he would grant the
adjustment of status, but counsel for Godfrey informed the IJ that Godfrey would
need his biometrics taken before the IJ could grant the adjustment. The IJ continued
the hearing to give Godfrey time to take these biometrics, but the United States
submitted the I-9 before Godfrey completed these biometrics and the IJ formally
granted adjustment. Therefore, the record was not "closed" as Godfrey argues,
because the IJ had not entered a final order granting his application for adjustment of
status. See 8 C.F.R. § 1003.23(a) (authorizing party to submit motion to reconsider
or reopen "prior to the final order of an Immigration Judge"). Since the record was
not closed, the IJ had broad discretion to reopen the record and consider the evidence,
see 8 U.S.C. § 1229a(b)(1); Ivanov v. Gonzales, 487 F.3d 635, 639 n.4 (8th Cir.

                                         -9-
2007) ("[T]he regulations permit an IJ to reopen removal proceedings at any time
upon his or her own motion."), and, in fact, an affirmative duty to develop the record.
Zeah v. Holder, 744 F.3d 577, 581 (8th Cir. 2014). As a factual matter, Godfrey is
incorrect that the proceedings were concluded and the IJ had granted his application
for adjustment.

        Second, the IJ's decision to admit Form I-9 did not violate Godfrey's due
process rights. To demonstrate a due process violation, the petitioner must show the
IJ committed a "fundamental procedural error" and the error resulted in prejudice –
that is to say, the outcome of the proceeding would have been different but for the
error. Id. (quoting Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003)). The
record definitively establishes the outcome of the proceedings would have been
different if the IJ had not admitted the I-9 Form, because the IJ stated on the record
that it would grant Godfrey's petition before it admitted this form.

       But the IJ's decision to admit the I-9 was not a fundamental procedural error.
"To comport with the requirements of due process, evidence must be 'probative and
its admission . . . fundamentally fair . . . .'" Tun v. Gonzales, 485 F.3d 1014, 1026
(8th Cir. 2007) (quoting Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004)).
After the IJ admitted the I-9, he gave Godfrey ample opportunity – over a year – to
address the allegation and to submit his own evidence. Godfrey was able to testify
a second time about his intent in filling out the form, and he filed briefing on his
position. There was nothing fundamentally unfair about these proceedings.
Therefore, the IJ's decision to admit the I-9 was not fundamental procedural error, and
it did not violate Godfrey's due process rights.

                                          III

      For the foregoing reasons, we deny Godfrey's petition for review.
                      ______________________________

                                         -10-
