                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0215n.06

                                          No. 17-3796

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                    FILED
                                                                                Apr 26, 2018
GWAMAKA ABELY MWAMLENGA,                                )
                                                                           DEBORAH S. HUNT, Clerk
                                                        )
       Petitioner,                                      )
                                                        )
                                                               ON PETITION FOR REVIEW
              v.                                        )
                                                               FROM THE UNITED STATES
                                                        )
                                                               BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney General,           )
                                                               APPEALS
                                                        )
       Respondent.                                      )
                                                        )
                                                        )


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
No. 17-3796
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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.” Al-

Ghorbani 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 I-

9 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.




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