                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 07 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS



                            FOR THE NINTH CIRCUIT


MARTHA OCTAVIA KOEGEL,                           No. 08-74973

              Petitioner,                        Agency No. A079-160-734

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                        Argued and Submitted June 4, 2013
                               Pasadena, California

Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.

       Petitioner Martha Octavia Koegel seeks review of the BIA’s order denying

her application for adjustment of status on the basis that she is inadmissible under

8 U.S.C. § 1182(a)(6)(C)(ii) and granting her voluntary departure. We have

jurisdiction pursuant to 8 U.S.C. § 1252, and now deny the petition for review.

       In 1997, Koegel pled guilty to violating 18 U.S.C. § 1542 for falsely

representing her place and date of birth on a United States passport application.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The conviction for making a false statement does not establish she falsely

represented her citizenship “for any purpose or benefit” under 8 U.S.C. §

1182(a)(6)(C)(ii). Smiley v. United States, 181 F.2d 505, 506 (9th Cir.), cert.

denied, 340 U.S. 817 (1950). However, the record evidence establishes that she

signed an oath (item 21) that contained the phrase “since acquiring United States

citizenship,” falsely represented she was born in Texas, filed a counterfeit Texas

birth certificate to support that assertion, and never maintained that she was merely

a United States national. We could deny the petition for review on those grounds

alone, but the BIA has already resolved a virtually identical case.

      In Matter of Olga Barcenas-Barrera, 25 I. & N. Dec. 40 (BIA 2009), the

BIA found an alien inadmissible and therefore ineligible for adjustment of status

under § 1182(a)(6)(C)(ii), where she had signed the exact same oath at issue here

and represented that she was born in Texas. Id. at 42-44. Since that was a

reasonable construction of a statutory ambiguity, we must defer to the agency’s

determination. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 843-44 & n.11 (1984). Barcenas-Barrera is squarely on point here, and so

we must deny Koegel’s petition for review.

      DENIED.




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