                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0395n.06

                                            No. 12-3858

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                       FILED
                                                                                        Apr 22, 2013
RAJESH KUMAR YEMULA,                                  )                           DEBORAH S. HUNT, Clerk
                                                      )
       Petitioner,                                    )
                                                      )       ON PETITION FOR REVIEW
v.                                                    )       FROM THE UNITED STATES
                                                      )       BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General,                )       APPEALS
                                                      )
       Respondent.                                    )
                                                      )




       BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; ZATKOFF, District Judge.*


       PER CURIAM. Rajesh Kumar Yemula, a citizen of India, petitions through counsel for

review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from a decision

of an immigration judge (IJ) denying his applications for adjustment of status and cancellation of

removal under 8 U.S.C. §§ 1255 and 1229b(b)(1).

       Yemula was born in India in 1966. He entered this country on a student visa in 1991. He

obtained a masters degree in computer science. He twice married United States citizens. Following

his second marriage, Yemula’s wife applied for a visa on his behalf so that he could adjust his status.

At an interview, Yemula was asked if he had ever misrepresented himself to be a United States

citizen. Yemula replied that he had done so in order to be hired at his last two jobs. Yemula’s

       *
         The Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 12-3858
Yemula v. Holder

counsel interrupted him and advised him that, if he was not sure of his answers, he should withdraw

his application for adjustment of status. Yemula did withdraw that application. He was then issued

a notice to appear, charging him with failing to maintain his student status and falsely representing

himself to be a United States citizen. Yemula admitted that he had failed to maintain his student

status, but denied the charge of falsely representing himself to be a United States citizen. A hearing

was held on that charge, after which the IJ concluded that the government had not borne its burden

of proving that charge (the government’s evidence was an I-9 form from 2000 on which a box had

been checked indicating that Yemula was a national or citizen). However, because he was

removable for not having maintained his student status, Yemula applied for the above relief.

       Another hearing was held, at which Yemula testified that he did not remember marking the

box on the I-9 form in 2000, and did not believe that he would have done so. When questioned

about why he had withdrawn his application during the interview after being asked whether he had

misrepresented himself to be a United States citizen, he testified that he did so on counsel’s advice

and because he did not know what an I-9 form was. Yemula also introduced a letter from a

handwriting expert who opined that it was not possible to tell who had checked the box on the I-9

form, but nevertheless concluded that Yemula had not done so. In support of the application for

cancellation of removal, Yemula and his wife testified that the wife and her two U.S. citizen children

would face exceptional and extremely unusual hardship if Yemula were deported, because he was

the main breadwinner and the family would be separated. The IJ denied adjustment of status, finding

Yemula not credible in his testimony denying having falsely claimed to be a United States citizen,

and therefore inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). The IJ also denied cancellation of

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Yemula v. Holder

removal, finding that Yemula has not demonstrated exceptional and extremely unusual hardship.

The BIA dismissed Yemula’s appeal from the IJ’s decision.

        This court granted Yemula’s motion for a stay of removal, citing the apparent conflict

between the finding that he was not removable for falsely representing himself to be a United States

citizen, and the finding that he was inadmissible on the same ground.

        Yemula challenges the IJ’s finding that his testimony regarding whether he had falsely

represented himself as a United States citizen was not credible. We review a credibility finding for

substantial evidence, which may include the IJ’s observation of the applicant’s demeanor, candor,

and responsiveness. Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011). Here, the IJ relied on

these factors and Yemula has not shown that the IJ’s observations do not constitute substantial

evidence. Moreover, the IJ relied on the crucial evidence that Yemula admitted falsely representing

himself as a United States citizen in order to obtain employment when he was initially interviewed

for adjustment of status. His explanation of why he withdrew that application following his

admission was not persuasive. He did rely on advice of counsel, but not because he did not know

what an I-9 form was, which was not the question posed to him at that interview. Yemula also faults

the IJ’s rejection of his handwriting expert’s opinion, but the reason for that was amply explained

by the lack of any basis for concluding that Yemula did not check the box on the I-9 form.

        Yemula also relies on United States v. Karaouni, 379 F.3d 1139, 1143 (9th Cir. 2004), for

the proposition that checking the box on an I-9 form indicating that one is a citizen or national of the

United States is insufficient to establish a false claim to United States citizenship. However,

Karaouni was a criminal case and penal statutes must be strictly construed in favor of the defendant.

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Yemula v. Holder

Here, it was Yemula’s burden to prove that he was admissible clearly and beyond doubt. Hashmi

v. Mukasey, 533 F.3d 700, 702 (8th Cir. 2008). The checked box on Yemula’s I-9 form weighed

against him and, coupled with his admission in the interview, caused him not to meet his burden on

this issue. The fact that Yemula was not found removable for falsely representing himself to be a

United States citizen, but was found inadmissible for the same reason, is also explained by the

burden of proof. The government has the burden of proving grounds for removal, and the applicant

has the burden of proving admissibility. On the same facts, other cases have upheld these seemingly

contradictory conclusions. Id. at 703-04; Kirong v. Mukasey, 529 F.3d 800, 802-05 (8th Cir. 2008).

In Kirong, the applicant, like Yemula, was unable to explain the difference between a citizen and a

national, and was found not to have met the burden of proof that he clearly and beyond doubt had

not falsely claimed United States citizenship. Kirong, 529 F.3d at 805. An alien was also found

inadmissible in another similar case, where he admitted in his interview that he has represented

himself as a citizen on an I-9 form. Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004).

       In summary, given the burden of proof on the applicant to establish his admissibility, and

Yemula’s failure to establish that he had not falsely claimed United States citizenship, we deny the

petition for review of the decision denying him adjustment of status.

       With regard to the denial of cancellation of removal, Yemula challenges only the

discretionary determination that he did not establish that his family would suffer exceptional and

extremely unusual hardship. We lack jurisdiction to review that determination and, accordingly,

dismiss the petition for review of the denial of cancellation of removal. See Ettienne v. Holder, 659

F.3d 513, 518-19 (6th Cir. 2011).

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