                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                   UNITED STATES COURT OF APPEALS             August 16, 2007
                            FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-60376


                YASSER MOHAMED ADLY MOKHTAR ISMAIL,

                                                           Petitioner,

                                versus

           ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                                           Respondent.


               Petition for Review of an Order of the
                    Board of Immigration Appeals
                            (A97 831 493)




Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Yasser Mohamed Adly Mokhtar Ismail, a citizen of Egypt,

challenges the Board of Immigration Appeals’ (BIA) affirming the

Immigration Judge’s (IJ) decision that he is inadmissible under the

Immigration and Nationality Act (INA) for having made a false claim

of United States citizenship.   Because the BIA’s decision preceded

our very recent opinion in Theodros v. Gonzales, 490 F.3d 396 (5th



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Cir. 2007), the BIA decision is VACATED and this matter is REMANDED

to the BIA for proceedings in the light of that opinion.

                                  I.

     Ismail   entered   the   United   States   in   August   1995   as   a

nonimmigrant visitor, with authorization to remain until August

1996.   Because he overstayed his visa, the Department of Homeland

Security (DHS), in 2004, served him with a Notice to Appear and

initiated removal proceedings.

     Ismail conceded his removability under INA § 237(a)(1)(B), 8

U.S.C. § 1227(a)(1)(B), but sought an adjustment of status based on

his 2003 marriage to a United States citizen.            DHS maintained

Ismail was inadmissible, under INA § 212(a)(6)(C)(ii), 8 U.S.C. §

1182(a)(6)(C)(ii), for having made a false claim of United States

citizenship in 1998, while enrolling as a part-time student at

Drexel University in Philadelphia, Pennsylvania.       Ismail contended

the false statement did not render him inadmissible because it was

not made for the purpose of obtaining a “benefit” available to

citizens under state or federal law.

     In March 2005, the IJ denied Ismail’s request for adjustment

of status and ordered him removed.          The IJ found Ismail had

obtained a “benefit” from Drexel under state law because:        despite

Drexel’s status as a private university, it received funding from

Pennsylvania; and Ismail would not have been allowed to enroll in

the part-time program as a non-citizen.         The IJ’s decision was



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based, in part, however, on evidence that had not been in the

administrative record for the hearing, regarding state aid to

private institutions.             (The IJ also stated:               but for the bar

imposed     by    INA   §   212(a)(6)(C)(ii),          she   would    have    exercised

discretion and admitted Ismail.)

      In April 2006, the BIA affirmed the IJ’s decision.                         Noting

that the state-funding evidence on which the IJ relied had not been

admitted in the record, the BIA instead employed alternative

grounds.         It held:     even if Ismail had not received a state

“benefit”, his false statement had been made to accomplish the

“purpose” of gaining admission to college.

                                           II.

      The   BIA’s       factual     findings     are    reviewed     for    substantial

evidence; its rulings of law, de novo.                       See Mireles-Valdez v.

Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003).                    Although we review

the   BIA’s      decision,    and    not   that    of    the   IJ,    the    latter   is

considered to the extent it affects the BIA’s decision. See Lopez

De Jesus v. INS, 312 F.3d 155, 158 (5th Cir. 2002).                        If a statute

is arguably ambiguous, we give Chevron-deference to the BIA’s

interpretation of it, see Smalley v. Ashcroft, 354 F.3d 332, 335-36

(5th Cir. 2003), unless “there are compelling indications that

[its] interpretation is incorrect”,                Rivera-Cruz v. INS, 948 F.2d

962, 966 (5th Cir. 1991).




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     The   sole    issue   at   hand   is    the     applicability   of   INA   §

212(a)(6)(C)(ii). It renders inadmissible “[a]ny alien who falsely

represents ... himself ... to be a citizen of the United States for

any purpose or benefit under this chapter (including section 1324a

of this title) or any other Federal or State law ...”.               8 U.S.C. §

1182(a)(6)(C)(ii)(I)       (emphases       added).      Ismail    contends   the

Government failed to show attending a private university was a

“purpose or benefit”.         The Government responds:           Ismail falsely

represented his status in order to gain admission to Drexel’s part-

time evening-division program; and, accordingly, he avoided the

visa and full-time study requirements of INA § 101(a)(15)(F)(i), 8

U.S.C. § 1101(a)(15)(F)(i).

     Our court faced a similar issue in Theodros.                There, we held

reasonable the BIA’s affirming the IJ’s decision that an Ethiopian

citizen    was    removable     for    falsely       claiming    United   States

citizenship in applying for private-sector employment.                Theodros,

490 F.3d at 402.     Our doing so was based, in part, on federal law

making it unlawful to employ an illegal alien.              As the BIA noted:

           The statute provides that “any purpose or
           benefit under this Act” is inclusive of
           section 274A [8 U.S.C. § 1324a], the rules
           governing unlawful employment of aliens by
           private or government entities. Reference to
           that   section  immediately   following   the
           “purpose or benefit” clause of section
           237(a)(3)(D)(I) [8 U.S.C. § 1227(a)(3)(D)(I)]
           informs the inference that employment is an
           example of the sort of purpose or benefit
           contemplated by the statute.


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Id.    See, e.g., Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.

2000) (falsifying citizenship on a birth certificate, a violation

of federal immigration law, bars entry);             Rana v. Gonzales, 175 F.

App’x 988, 996 (10th Cir. 2006) (falsely claiming United States

citizenship in order to obtain employment bars admissibility).

       As noted, the BIA did not base its decision on Ismail’s

falsifying his citizenship to gain a benefit under state or federal

law; instead, it held he violated INA § 212(a)(6)(C)(ii) in order

to    gain   admission     to   Drexel    University’s      part-time    program.

Theodros, which interpreted that section, was decided after the

BIA’s April 2006 decision at issue.

        The INA provides that “[t]he Secretary of Homeland Security

shall be charged with the administration and enforcement” of the

statute and that the “determination and ruling by the Attorney

General with respect to all questions of law shall be controlling”.

8 U.S.C. § 1103(a)(1). Furthermore, a “judicial judgment cannot be

made to do service for an administrative judgment”. SEC v. Chenery

Corp., 318 U.S. 80, 88 (1943).           This is especially true with regard

to immigration matters; as this court noted previously, “federal

immigration laws are exceedingly complex”.                Marcello v. Brown, 803

F.2d 851,     857   (5th    Cir.   1986)      (internal    quotation    marks   and

citation omitted).              Accordingly, because the “principles of

Chevron deference are applicable to this statutory scheme”, INS v.

Aguirre-Aguirre, 526 U.S. 415, 424 (1999), remand is appropriate in


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order for the BIA to review its decision in the light of Theodros.

See INS v. Ventura, 537 U.S. 12, 16 (2002) (holding “a court of

appeals should remand a case to an agency for decision of a matter

that statutes place primarily in agency hands”).

                                     III.

       For the foregoing reasons, the BIA decision is VACATED and

this   matter   is   REMANDED   to   the    BIA   for   further   proceedings

consistent with this opinion.

                                                        VACATED and REMANDED




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