     11-1123-ag
     Crocock v. Holder



 1                   UNITED STATES COURT OF APPEALS
 2
 3                       FOR THE SECOND CIRCUIT
 4
 5
 6
 7                         August Term, 2011
 8      (Argued: February 9, 2012   Decided: February 23, 2012)
 9
10                         Docket No. 11-1123-ag
11
12
13                       ANTHONY GERARD CROCOCK,
14
15                                                         Petitioner,
16                                  -v.-
17
18        ERIC H. HOLDER, JR., United States Attorney General,
19
20                                                         Respondent.
21
22
23
24   Before:     Wesley, Lohier, Circuit Judges, Mauskopf,
25               District Judge.1

26        Petitioner seeks review of an order of the Board of
27   Immigration Appeals finding him ineligible for adjustment of
28   status due to his inadmissability under section
29   212(a)(6)(C)(ii) of the Immigration and Nationality Act, 8
30   U.S.C. § 1182 (a)(6)(C)(ii), for falsely representing
31   himself to be a United States citizen. Petitioner did not
32   meet his burden of demonstrating that he did not represent
33   himself to be a United States citizen when he checked the
34   “citizen or national” box on an I-9 Employment Eligibility
35   Verification Form. Accordingly, we deny the petition for
36   review.
37
38         DENIED.
39
40
41


           1
           Judge Roslynn R. Mauskopf, of the United States District
     Court for the Eastern District of New York, sitting by
     designation.
 1
 2
 3              JAMES E. SWAINE, Law Offices of James E. Swaine,
 4                    Hamden, CT, for Petitioner.
 5
 6              BROOKE M. MAURER, Attorney, Office of Immigration
 7                    Litigation, Civil Division (Tony West,
 8                    Assistant Attorney General, Richard M. Evans,
 9                    Assistant Director, Nancy E. Friedman, Senior
10                    Litigation Counsel, on the brief), for Eric H.
11                    Holder, Jr., United States Attorney General,
12                    Washington, D.C., for Respondent.
13
14
15
16   PER CURIAM:
17
18       Petitioner Anthony Gerard Crocock petitions for review

19   of an order of the Board of Immigration Appeals (“BIA”)

20   affirming an Immigration Judge’s (“IJ”) determination that

21   Crocock was ineligible for adjustment of status.     The IJ

22   determined that Crocock failed to meet his burden of

23   demonstrating that he was not inadmissible under Immigration

24   and Nationality Act (“INA”) § 212(a)(6)(C)(ii), 8 U.S.C. §

25   1182 (a)(6)(C)(ii), for falsely representing himself as a

26   United States citizen for the purpose of any benefit under

27   the INA.   Crocock had checked the box on an I-9 Employment

28   Eligibility Form (“I-9”) indicating that he was a “citizen

29   or national” of the United States when he applied for a job.

30   Crocock argues that he checked the “citizen or national” box

31   on the I-9 with the intent of claiming nationality and that

32   due to the ambiguity of the statement, the I-9 alone is

                                     2
 1   insufficient to establish his inadmissibility.    Because it

 2   is Crocock’s burden to demonstrate that he is not

 3   inadmissible under 8 U.S.C. § 1255(a), we find no error in

 4   the agency’s determination and deny the petition for review.

 5                             Background

 6       In January 2004, Crocock, a native and citizen of

 7   Ireland, entered the United States on a non-immigrant

 8   student visa to complete a paramedic certification program.

 9   Following completion of his paramedic course and training

10   and the subsequent expiration of his student visa and work

11   authorization, Crocock applied for and, in October 2004,

12   obtained a position with the fire department in Saco, Maine.

13   In order to obtain this position, Crocock completed an I-9

14   attesting to his employment eligibility by checking the box

15   on the form labeled “citizen or national.”   In April 2006,

16   based on a tip from a confidential informant, Crocock was

17   charged by the Department of Homeland Security with

18   removability under INA § 237(a)(1)(B), 8 U.S.C.

19   § 1227(a)(1)(B), for remaining in the United States beyond

20   the authorized period and under INA § 237(a)(3)(D), 8 U.S.C.

21   § 1227(a)(3)(D), as an alien who falsely represented himself

22   to be a citizen of the United States for any purpose or

23   benefit under the INA.   Shortly thereafter, Crocock pled


                                    3
 1   guilty in the United States District Court for the District

 2   of Maine to making a false attestation on an Employment

 3   Verification System Form in violation of 18 U.S.C. § 1546(a)

 4   and (b), and was subsequently charged with an additional

 5   ground of removability under 8 U.S.C. § 1227(a)(2)(A)(i) for

 6   having been convicted of a crime involving moral turpitude.

 7   Before the IJ, Crocock conceded that he was removable for

 8   remaining in the United States beyond the authorized period,

 9   and he applied for adjustment of status based on his June

10   2006 marriage to a United States citizen.

11       In November 2008, the IJ found Crocock removable based

12   on his overstay and his conviction under 18 U.S.C. § 1546,

13   which the IJ determined to be a crime involving moral

14   turpitude.   The IJ further found that Crocock was ineligible

15   for an adjustment of status because he was inadmissible

16   under 8 U.S.C. § 1182(a)(6)(C)(ii) as an alien who falsely

17   represented himself to be a citizen of the United States.

18   The IJ found that Crocock had not demonstrated that he was

19   admissible because, although Crocock claimed to have

20   believed that he was a “national” when he checked the box on

21   the I-9, Crocock had admitted to an immigration officer that

22   he had falsely claimed to be a United States citizen,

23   offered confusing testimony as to whether he believed he was


                                    4
 1   a national of the United States, and pled guilty to making a

 2   false attestation on the I-9.       Crocock appealed the IJ’s

 3   decision to the BIA, which affirmed the IJ’s decision in

 4   February 2011 and dismissed Crocock’s appeal.

 5       Crocock now argues that the I-9 is ambiguous as to

 6   whether an individual who checks the “citizen or national”

 7   box makes a representation of citizenship, and argues that

 8   he claimed, falsely or otherwise, to be a national and not a

 9   United States citizen on the I-9.       He concludes that he is

10   admissible to the United States and eligible for adjustment

11   of status because 8 U.S.C. § 1182(a)(6)(C)(ii) applies only

12   to false claims of United States citizenship.2

13                              Discussion

14       Under the circumstances of this case, we review the

15   decision of the IJ as supplemented by the BIA.       See Chen v.

16   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       Although we

17   lack jurisdiction to review a discretionary denial of

18   adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)(i); Ruiz

19   v. Mukasey, 552 F.3d 269, 275 n.4 (2d Cir. 2009), we retain

20   jurisdiction to review constitutional claims or questions of

21   law raised in a petition for review, including whether an


         2
          Crocock does not contest that his representation, made in
     order to obtain employment, was for a purpose or benefit under
     the INA.
                                     5
 1   alien is eligible for adjustment of status, Aslam v.

 2   Mukasey, 537 F.3d 110, 115 (2d Cir. 2008) (per curiam).      We

 3   review such claims de novo.    See Lecaj v. Holder, 616 F.3d

 4   111, 114 (2d Cir. 2010).

 5        To qualify for adjustment of status, an alien must

 6   demonstrate that he is “admissible to the United States for

 7   permanent residence.”   8 U.S.C. § 1255(a)(2).    Because

 8   applicants for adjustment of status are “assimilated to the

 9   position” of aliens seeking entry into this country, Drax v.

10   Reno, 338 F.3d 98, 113 (2d Cir. 2003) (internal quotation

11   marks omitted), such aliens must show that they are “clearly

12   and beyond doubt” entitled to be admitted, see Ibragimov v.

13   Gonzales, 476 F.3d 125, 131 (2d Cir. 2007).3

14        As Crocock sought relief from removal in the form of

15   adjustment of status, he was required to demonstrate that he

16   did not falsely represent himself to be a U.S. citizen.      See

17   8 U.S.C. § 1182(a)(6)(C)(ii)(I) (“Any alien who falsely


          Crocock contends that this “clearly and beyond doubt”
          3

     standard is too harsh, as evidenced by the fact that the BIA
     indicated that it was applying a preponderance of the evidence
     standard. The BIA concluded, however, that Crocock failed to
     show that he clearly and beyond a doubt was admissible because he
     did not demonstrate by a preponderance of the evidence that he
     had not held himself out to be a citizen, and there is no
     indication that the IJ applied a different standard. To the
     extent Crocock challenges the application of the “clearly and
     beyond a doubt” standard, he appears to confuse the substantive
     standard for establishing admissibility with the evidentiary
     burden required to demonstrate that he has satisfied the
     applicable substantive criteria.
                                     6
 1   represents, or has falsely represented, himself or herself

 2   to be a citizen of the United States for any purpose or

 3   benefit . . . is inadmissible.”).    Crocock argues that his

 4   attestation to being a “citizen or national” on the I-9 is

 5   alone insufficient to establish his inadmissibility because

 6   he checked the box while claiming to be a national, which is

 7   not a ground of inadmissibility.    Crocock correctly argues

 8   that a false claim of nationality, made either intentionally

 9   or mistakenly, does not render an alien inadmissible under 8

10   U.S.C. § 1182(a)(6)(C)(ii).    However, the burden of

11   demonstrating admissibility is squarely on Appellant.      See

12   Ibragimov, 476 F.3d at 131.    Here, Crocock was required to

13   prove a negative—that he did not falsely claim United States

14   citizenship.

15       We find no error in the agency’s determination that he

16   failed to meet his burden.    Because the I-9 shows that

17   Crocock claimed to be a citizen or national, he had the

18   burden of showing that he claimed to be a national, not a

19   citizen.   Crocock points to no evidence beyond his testimony

20   to demonstrate that he thought he was a national when

21   completing the I-9.   Furthermore, his assertion that he was

22   claiming to be a national at the time he completed the I-9

23   is undermined by his later admission before the IJ that he


                                     7
 1   did not believe himself to be a national, as well as his

 2   prior statement to an immigration officer in which he

 3   characterized himself as a United States citizen in order to

 4   obtain his “dream job.”     Ultimately, because Crocock bears

 5   the burden of demonstrating that he did not falsely claim to

 6   be a United States citizen and because he points to no

 7   additional evidence supporting his claim that he believed he

 8   was a U.S. national, we find no error in the agency’s

 9   conclusion that Crocock failed to carry his burden of

10   establishing admissibility.     See Ateka v. Ashcroft, 384 F.3d

11   954, 958 (8th Cir. 2004).

12                               Conclusion

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, the stay of

15   removal previously granted is VACATED.




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